Re S (A Child) [2014] EWCC B44 (Fam) and 26 Weeks Mandatory Limit

Justice must never be sacrificed upon the altar of speed” said Pauffley J in Re NL (A child) [2014] EWHC 270 (Fam). The President quoted this in his judgement in Re S (A Child) [2014] EWCC B44 (Fam) whilst refusing an extension to the 26 weeks deadline for the purposes of an assessment under s.38(6).

Family practitioners are acutely aware that the Children and Families Act 2014 has amended the Children Act 1989 to place a mandatory time limit for the conclusion of care proceedings “(i) without delay, and (ii) in any event within twenty-six weeks beginning with the day on which the application was issued.” Extension would only be allowed if the Court considers it necessary to dispose of the proceedings justly. So where does this leave applications pursuant to s.38(6)?

The amendments to the Children Act 1989 effected by the Families and Children act 2014 introduces the following:

(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,

g) any matters prescribed by Family Procedure Rules

The President recently considered an application for a residential assessment in Re S (A Child) [2014] EWCC B44 (Fam). S was mother’s fourth child (the other three had previously been removed from her care). Mother had mental health problems, anxiety disorder with depressive episodes and borderline low IQ. She had a long history of drug misuse and street prostitution. There were concerns around mother’s personal appearance and presentation during contact, seen as a potential indicator that she struggles to care for herself let alone S. The contact notes also frequently referred to lack of eye contact/positive interaction between S and the mother. The proceedings in respect of S commenced in October 2013. A parenting assessment by the Local Authority had been filed (which noted some positives: mother’s motivations and engagement, basic care, stability on her methadone prescription) along with reports from the mother’s treating psychiatrist (supportive of a residential assessment on the basis of her improved presentation and engagement) and a consultant forensic psychiatrist (who noted mother’s improved engagement). The proposed assessment would be initially for a weekend, and if that proved successful, for a period of six-twelve weeks and may be followed by a period in the community. The local authority’s plan was for S to be made subject of a Special Guardianship Order.

The President refused the application. He drew attention to the following principles:

  • What is directed under s.38(6) must clearly be an assessment of the child – Re G (A Minor) (Interim Care Order: Residential Assessment) [2005] UKHL 68.
  • It is necessary to think early and clearly about what assessments are indeed necessary to decide the case. Generally, the local authority should be able to make its own core assessment and the Guardian his/her independent assessment in the interest of the child. Further assessment should only be commissioned if it can bring something additional and important to the case.
  • Need to be child focused when considering an application pursuant to s.38(6): would the assessment assist the judge in reaching the right conclusion in relation to the child – Re J (Residential Assessment: Rights of Audience) [2009] EWCA Civ 1210.
  • Parents facing the permanent removal of their child do not have a right to an assessment of their choice rather than one commissioned by the local authority nor is there a principle that they must be given a chance to put forward a positive case at the final hearing – Re T (Residential Parenting Assessment) [2011] EWCA Civ 812
  • The critical question is: “does this child’s welfare warrant an assessment under s.38(6)?” and in considering the timetable for the child, “ is there evidence that this mother will be able to care adequately for the child within the child’s timetable” Sir Nicholas Wall P, par. 53, Re T.

He also noted the statutory exceptions to the mandatory 26 week deadline as follows:

  • Cases that are clearly not possible to conclude in 26 weeks (e.g. split hearings, international cases, etc)
  • Cases where something unexpected happens
  • Cases where litigation failure by a party makes it unjust to conclude

In this context “necessary” means what’s required to achieve justice, fair process or the welfare of the child…

Refusing the application under s.38(6) in Re S the President concluded that the proposed assessment was not going to add significantly to what the court already knew and that there was no “solid, evidence-based, reason to believe that she will be able to make the necessary changes within S’s timescales.” In addition, accepting the Guardian’s analysis, the President took into account the detrimental effects on S of further delay.

So, it seems that the questions that need to be addressed in seeking to persuade the Court to direct an assessment under s.38(6) which involves an extension beyond 26 weeks are: Is there a solid, evidence-based, reason to believe that the parent will be able to maintain commitment to change? Is there some solid, evidence-based reason to believe that the parent will be able to make the necessary changes within the child’s timescales?

Where a Court at an interim hearing concludes that there is no solid evidence that the parent is able to make the changes in the child’s timescales, arguably this leaves little to be decided at the final hearing. Where this leaves Thorpe LJ’s guidance in Re H (A Child) (Interim Care Order) [2003] 1 FCR 350 that an interim hearing should not pre-empt the final hearing, perhaps remains to be seen.