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February 26, 2024

Mrs Justice Lieven handed down a judgment last Friday, 23 February 2024 that should be read by anybody contemplating making an application for a cognitive assessment.  Thankfully, it’s short – just 27 paragraphs over 7 pages.

In West Northamptonshire Council re Y [2024] EWHC 395 (Fam) Her Ladyship found herself asked by the acting DFJ for Northampton to consider an application made by M’s solicitor for a cognitive assessment of his client.  The fact that the acting DFJ referred it to the Circuit Liaison Judge suggests that there was, perhaps, a local view that too many such applications were being made.

Interestingly, just a few minutes before the case management hearing M’s solicitor emailed the court and asked for permission to withdraw the application.  Lieven J refused permission to withdraw as she wanted to “consider the matter and give a reasoned decision”, which she duly did.  She noted that “it is not acceptable for court time and public funds to be wasted by decisions to withdraw applications being made so late”.  She also expressed dissatisfaction (and if you know, you know) about the late filing of skeleton arguments.

There was nothing in the interim threshold or the initial social work statement to suggest cognitive impairment.  It turned out that the Part 25 application had been made before the solicitor had met the client (!), apparently on the basis of what counsel had reported back after discussions at the first hearing when the LA had been wondering about a Parent Assess assessment.  (Therein lies a message for us all.)

The unfortunate solicitor told Lieven J that the application had been made as a “belt and braces approach.”  Unsurprisingly, the court took the view that this did not cross the test of necessity.

Lieven J set out at [10] that applications for cognitive assessments “must be accompanied by proper evidence which explains why the case goes beyond the standard difficulties faced by many parents in care proceedings” and “why the parent’s needs cannot be properly managed by careful use of language and the professionals taking time to explain matters in an appropriate manner.”  There must be evidence as to why the proposed assessment is “necessary” rather than “just something that would be nice to have”.  She added at [21] that it is “only appropriate to order a psychological assessment relevant to the Court process if the approach in the Advocates’ Gateway was plainly insufficient.”   

Put shortly, an application for a cognitive assessment is no different to any other Part 25 application and will only be granted if it passes the test of being necessary to assist the court to resolve the proceedings.

Some might, I suppose, point out that without a cognitive assessment we don’t necessarily know the correct approach to take to the individual involved.  Lieven J’s response would no doubt be to point out that we need to trust our own judgment as specialist lawyers, social workers and children’s guardians; she might even add that if we feel the need to have our hands held by psychologists we ought not to be doing the job.  She pointed out that the guardian had indicated that she anticipated that “people working with M may need to spend more time with her and explain things in simple language.”  Sometimes, it really is as straightforward as that.

In passing, but importantly, Lieven J commented adversely on the neutral position taken by the advocate for the child.  Paragraphs 16 and 17 are important reading in that regard: “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.”

Stuart Fuller