Shiva Ancliffe acted for the mother in a recent appeal by a local authority – Y (A Child) (S.38(6) Assessment)  EWCA Civ 992.
For background, care proceedings had been brought against the parents by the local authority, which were seeking an interim care order due to mental health and drug abuse problems. At the hearing, the court reviewed the evidence, including a forensic psychiatric report recommending drug treatment, and decided to instead make an interim supervision order. Following this, the mother made an application under Part 25 of the Family Procedure Rules to be placed in a detox residential unit.
The trial judge issued an order in favour of the assessment, determining it would give the parents the best chance to show whether they could safely parent the child. The trial judge also issued an order directing the local authority to finance the placement of the child with her parents while they attended this treatment. The local authority appealed the order.
On appeal before Lord Justice Peter Jackson was whether it had been within the powers of the court to make an order for assessment of a child under Section 38(6) of the Children Act 1989.
In his judgment at paragraph 18, Jackson LJ provided a twostep approach for the court to follow when deciding an application under Section 38(6). This included:
1. Is this a proposal for an assessment that falls within the terms of Section 38(6)?
2. If so, is the assessment necessary to assist the court to resolve the proceedings justly, as required by ss. 7A, having regard to the matters in ss. 7B?
Jackson LJ further stated that the court’s approach must follow a manner that upholds an individual’s right to fair trial under Article 6 and the right to respect for family life under Article 8.
This judgment can be read in full: http://www.familylawweek.co.uk/site.aspx?i=ed189793.