High Court judge provides guidance on applications for psychological assessments in care proceedings

A High Court judge has given guidance on when applications for a psychologist to undertake a cognitive assessment in care proceedings should be made and the approach that the Family Court should take, warning that “misconceived applications are exceedingly common”.

In West Northamptonshire Council v The Mother (Psychological Assessments) [2024] EWHC 395 (Fam) Mrs Justice Lieven revealed that “very shortly (a few minutes)” before the hearing of the Part 25 application, the solicitor for the mother had sought to withdraw the application for a psychological assessment.

However, the judge decided not to allow the application to be withdrawn, but rather consider the matter and give a reasoned decision.

The case related to a child, Y, who was born in December 2023, somewhat prematurely and who remained in hospital for three weeks.

The council had applied for an interim care order before Y was due to leave hospital. The interim threshold alleged that the mother failed to engage with antenatal services, including mental health services, and that there was a risk of harm from her association with the father, who had a history of offences.

Mrs Justice Lieven noted that there was nothing in the interim threshold or the Social Work Evidence Template which suggested that the mother suffered from cognitive impairment or significant communication difficulties. Nor was there reference to her having a Special Education Needs statement or having attended anything other than a mainstream school.

The local authority’s initial plan was for interim separation. However this changed to the mother and child being placed in a mother and baby foster placement, where they have remained. Reports so far had been very positive of the mother, according to the judge.

Last month the mother’s solicitors made their application under Part 25 of the Family Procedure Rules for the instruction of a psychologist to undertake a cognitive assessment of the mother.

However, Mrs Justice Lieven said there was “minimal evidence submitted in support of this application indicating why the solicitor believed that the mother required such an assessment".

This was important, the judge said, “both because…. the test is one of 'necessity' and there was no evidence or submissions that supported such a test; and because the late withdrawal of the application is an indication that it should never have been made”.

Mrs Justice Lieven said the matters stated in the statement in support of the application were matters that were exceedingly common in care proceedings. The statement had suggested that:

“The Mother is deemed vulnerable due to her age, her past experiences andmental health issues. The mother has indicated that she struggles with engaging within professional meetings and retaining information."

The judge said these matters did not begin to justify, without further detail, a psychological assessment.

“An application under Part 25 for a psychological/cognitive assessment must be accompanied by proper evidence which explains why the case goes beyond the standard difficulties faced by many parents in care proceedings. The evidence must explain why the parent's needs cannot be properly managed by careful use of language and the professionals taking the time to explain matters in an appropriate manner. The evidence must address why such an assessment is necessary rather than just something that would be ‘nice to have’,” Mrs Justice Lieven said.

“It would often be the case that if one parent does have cognitive issues this will have been identified at school, during previous interactions with the local authority and/or in pre-proceedings work. These earlier interventions will frequently identify whether there are cognitive challenges, and how they can best be handled.”

Counsel for the mother said that the Part 25 application was part of a “belt and braces” approach at a point where the solicitor for the mother had not yet met her, but counsel at an earlier hearing had. The solicitor had decided to withdraw the application after speaking to the mother the night before the hearing before Lieven J, in light of her progress at the foster placement and his own conversation with her.

Mrs Justice Lieven meanwhile said it was “unfortunate” that the Guardian and her solicitor had stated that they were “neutral” in relation to the application.

“It is quite clear from the Skeleton that the Guardian did not consider the test of necessity in Part 25 to have been met, but still remained neutral on the application. Guardians, and the Children's solicitors, play an important role in care proceedings in ensuring that the interests of the child are met by minimising delay and maximising the efficient use of resources, in particular by assisting the Court to "Make Cases Smaller", see the President of the Family Division's The Road Ahead. If it is clear to the Guardian and the Child's solicitor that an application should be refused, then they should make that clear to the Court,” the High Court judge said.

Mrs Justice Lieven noted Part 25.43 of the FPR and said it was “beyond argument” that the test for an expert is whether the report is “necessary” for the resolution of the proceedings.

The meaning of “necessary” in this context had been considered in Re HL (A child) [2013] EWCA Civ 655 (at paragraph 3)..

The judge said that in deciding whether to allow an application for a psychologist to carry out a cognitive assessment, it is also critical to bear in mind the existence of the Advocates Gateway and the requirement for all those working with parents in care proceedings to be sensitive to their needs.  She added that it would only be appropriate to order a psychological assessment relevant to the Court process if the approach in the Advocates Gateway was plainly insufficient.

“It will often be the case that parents may struggle to absorb information, to understand the proceedings and to concentrate through meetings and hearing, the judge said.

“However, the solution to this problem is not, in the majority of cases, to have cognitive assessments and appoint intermediaries. It is for all the professionals involved, including lawyers and judges, to bear closely in mind the need to use simple language, avoid jargon, and where appropriate check that a litigant has understood what is being said. That is all set out in the Advocates Gateway.”

Turning to the application before her, Mrs Justice Lieven said this did “not come close to meeting the test of being ‘necessary’ to resolve the proceedings, and in my view should never have been made”.

The fact that [counsel for the mother] referred to taking a ‘belt and braces’ approach indicated strongly that the proper test was not being considered either by counsel when she advised or by the solicitors when they made the application, she said.

“Unfortunately, such misconceived applications are exceedingly common, particularly in respect of applications for psychologists to undertake cognitive assessments.”

The High Court judge added: “Such applications waste considerable resources, both in the courts, but also in the local authorities and Cafcass when they lead to unnecessary hearings and unnecessary expense. It is important that they are not granted without the Court properly addressing the correct test.”

She rejected the suggestion that referral for a psychological assessment would be useful in determining what support the mother would need to help care for the child in the future. That was not the purpose of the Part 25 application, the judge said.

“Further, and in any event, that type of analysis is one that all social workers should necessarily be very familiar with. There was again nothing in this case which justified going beyond normal good social work practice.”

Refusing the application, Mrs Justice Lieven said: “A test of necessity does not mean that a report would be ‘nice to have’ or might help in determining what psychological support the parent might need in the future. That is not necessary to resolve the proceedings.”