Re S (A Child) (Care Proceedings: Residential Assessment)
| Jurisdiction | England & Wales |
| Judgment Date | 2015 |
| Year | 2015 |
| Date | 2015 |
| Court | County Court |
Care proceedings – Residential assessment – Delay – 26-week time limit – Mother with history of mental health problems, substance abuse and street prostitution – Local authority obtaining interim care order – Mother seeking residential assessment – Proposed residential placement likely to extend proceedings beyond six months – Whether assessment necessary – Whether necessary to extend case beyond 26-week time limit prescribed for care cases – Children Act 1989, ss 32, 38(6), 38(7A), (7B) – Children and Families Act 2014, ss 13, 14.
M was a vulnerable woman with a history of street prostitution and polysubstance drug abuse. She had mental health problems, an anxiety disorder (exemplified by fears of travelling on public transport and elective mutism) with intermittent depressive episodes and borderline low IQ. She lived with her sister, who provided a significant level of domestic support to her. S was her fourth child, her other three having already been taken into care. The local authority obtained an emergency protection order in respect of S, followed by an interim care order. It also obtained a parenting assessment and psychiatric reports which indicated faltering progress in management of her addictions and a lack of engagement with her child during managed contact sessions. In the context of the care proceedings, M applied for a residential assessment under s 38(6) of the Children Act 1989, which provided: ‘[w]here the court makes an interim care order … it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child …’ M proposed an assessment at OH, a Family Assessment and Intervention Centre, initially for a weekend and, if that proved successful, for a period of between six and twelve weeks, with that assessment possibly being followed by a further period of assessment in the community. The local authority and S’s guardian both resisted M’s application. The guardian was particularly concerned about the impact on S of the proposed assessment in that M’s parenting of S during the assessment could undermine the secure attachment S already had with her foster carer and that, given the extensive assessments already undertaken, M’s poor prospects of success did not justify the experiment she was proposing; nor was it within the child’s timescale. M submitted that she had complied with everything asked of her, was no longer taking drugs, had made progress in relation to her mental health and continued to engage with the agencies and professionals who
were in place to support and assist her. Later in the month in which the application was being heard, amendments to s 38 of the 1989 Act effected by the Children and Families Act 2014 would be brought into force. Sections 38(7A) and (7B), inserted by s 13(11) of the 2014 Act, provided as follows: ‘(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly. (7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to—(a) any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child, (b) the issues with which the examination or other assessment would assist the court, (c) the questions which the examination or other assessment would enable the court to answer, (d) the evidence otherwise available, (e) the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings, (f) the cost of the examination or other assessment, and (g) any matters prescribed by Family Procedure Rules.’ The language of s 38(7A) replicated, in all material respects verbatim, the more general provision in s 13(6) of the 2014 Act which applied to the calling of expert evidence (and which in turn replicated, with the addition of the word ‘justly’, the language of r 25.1 of the Family Procedure Rules 2010, SI 2010/2955 (‘FPR’)). Likewise, the language of s 38(7B) was very similar to that of s 13(7) of the 2014 Act. By the time the case came before the court, the proceedings had already been on foot for over five months, and what was being proposed by OH envisaged a process that might extend the proceedings well beyond six months. Section 14 of the 2014 Act amended s 32 of the Children Act 1989 so that it read as follows: ‘(1) A court hearing an application for an order under this Part shall … (a) draw up a timetable with a view to disposing of the application—(i) without delay, and (ii) in any event within twenty-six weeks beginning with the day on which the application was issued; and (b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to … (5) A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly. (6) When deciding whether to grant an extension under subsection (5), a court must in particular have regard to—(a) the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and (b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings … (7) When deciding whether to grant an
extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification …’
Held – (1) The meaning of s 38(6) of the 1989 Act was settled by authority. It was always necessary to think early and clearly about what assessments were indeed necessary to decide the case. Authority established that, in many cases, the local authority should be able to make its own core assessment and the child’s guardian to make an independent assessment in the interests of the child. Further or other assessments should only be commissioned if they could bring something important to the case which neither the local authority nor the guardian was able to bring. Turning to the statutory amendments, for present purposes the key point was the use in common in s 38(7A) of the 1989 Act, s 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court could direct the assessment or expert evidence only if it was ‘necessary’ to assist the court to resolve the proceedings. That phrase had to have the same meaning in both contexts. The addition of the word ‘justly’ only made explicit what was necessarily implicit, for it went without saying that any court had to always act justly rather than unjustly. Therefore ‘necessary’ in s 38(7A) had the same meaning as the same word in s 13(6) (see [17], [19], [21], below); Re C (a minor) (interim care order: residential assessment)[1997] 1 FCR 149 and Re G (a child) (interim care order: residential assessment)[2005] 3 FCR 621 considered.
(2) Section 32(1)(a)(ii) of the 1989 Act did not describe some mere aspiration or target; nor did it prescribe an average. It defined, subject only to the qualification in s 32(5) and compliance with the requirements of s 32(6) and (7), a mandatory limit which applied to all cases. It followed that there would be many cases that could, and therefore should, be concluded well within the 26-week limit. There could, however, be exceptions. An extension beyond 26 weeks was to be permitted only if it was ‘necessary to enable the court to resolve the proceedings justly’. Only the imperative demands of justice or of the child’s welfare would suffice. Extensions were not to be granted routinely and required specific justification, determined only on a case-by-case basis (see [24], [30], below).
(3) In the instant case, the proposed assessment was not necessary. There were two aspects to this. Further assessment was not going to add significantly to what the court already knew. Moreover, the kind of assessment proposed, though it might tell the court something about the mother’s ability to parent S in a practical sense, was not going to tell the court very much about the mother’s ability to address her many other difficulties, let alone her ability to sustain in the long term in the community whatever improvements might be noted in the short term in the supportive and controlled environment of the assessment. Secondly, there was no adequate justification, let alone the necessity which s 32(5) of the 1989 Act would shortly require, for an extension of the case so significantly beyond 26
weeks. Again, there were two aspects to this. Looking to the mother, there was, sadly, at present no solid, evidence based, reason to believe that she would be able to make the necessary changes within S’s timescale. Even assuming that there was some solid, evidence based, reason to believe that she was committed to making the necessary changes, there was, sadly, not enough reason to believe that she would be able to maintain that commitment. In the light of her history, and all the evidence to hand, the assertion that she would seemed to be founded more on hope than solid expectation, just as did any assertion that she would be able to make the necessary changes within S’s timescale. Secondly, it was necessary to have regard to the detrimental effects on S of further delay. Far from the instant case being one where the child’s welfare demanded an extension of the 26-week time limit, S’s needs pointed, if anything, in the other direction. Accordingly...
To continue reading
Request your trial
-
P (A Child)
...of adoption remained the only option (see [73], below). Cases referred to S (a child) (care proceedings: residential assessment), Re[2015] 2 FCR 287 (see also S (a child) (interim care order: residential assessment), S (a child) (interim care order: residential assessment), Re [2015] 1 W.L.......