Re G (A Child: s.38(6) Assessment) Neutral Citation Number:  EWCA Civ 282
The judge at first instance had granted a mother’s application for a s.38(6) residential assessment in the context of care proceedings, in which the mother was on the list of potential perpetrators of non-accidental injuries to her son. At the time the assessment was ordered, a decision had not yet been made over whether there would be a split trial or a composite hearing.
The Local Authority appealed. The basis of the appeal was that the judge had failed to consider the risk of emotional harm to the child inherent in placing him back with his mother, without any factual basis upon which to characterise and quantify the nature of the risk posed to the child. The appeal was supported by the Children’s Guardian, who argued that the assessment did not meet the necessity requirement of s38(7A). The mother argued that this was a case management decision with which the court should be slow to interfere and that there was an identified need for both parenting and psychological assessments.
Jackson LJ, giving the lead judgment, held that the question before the court was whether the judge at first instance was entitled to find the assessment was necessary, in light of the factors in s.38(7A) and (7B) Children Act 1989. Whilst recognising the need to “give considerable latitude to the judge’s evaluation” and being “very much alive to the judge’s concern about delay”, he considered that the fact that the judge had not yet decided whether to list the case for a split trial or a composite hearing “put the court at a disadvantage when it came to consider what assessments were necessary”.
The court found that, in this case, the judge needed to weigh up the fact that an assessment of the child with his mother could only be of limited value whilst the injuries to the child remained unexplained and that assessment of this extensive kind might prove unnecessary in any event. The fact that an assessment might be necessary at some point did not mean that this assessment was necessary now. This was not to say, however, that residential assessment cannot, as a matter of principle, take place before fact finding; it will sometimes happen in cases where there is a normal composite hearing, though this may be more likely in cases where there are multiple issues.