New Changes to s.38 (6) assessments and the creation of s.38 (7A) and (7B) test.

The President, Sir J Munby has issued new guidance in relation to s.38(6) assessments and the recent decisions and indications relating to the reforms are important in gaining an understanding as to their implementation and practical effect in the cases before the courts. The key decision is Re S (A Child) [2014] EWCC B44 (Fam) in which the President considers the issue of a s38(6) application and the interrelationship with the 26 weeks rule.

In making his decision, Sir Munby reminded himself of the case of Re J (Residential Assessment: Rights of Audience) [2009] EWCA in which Lord Justice Wall said:

“I think it important to remember when one is looking either at the independent assessments by social workers or at applications under section 38(6) of the Act that one needs to be child focused. It is not a question of the mother’s right to have a further assessment, it is: would the assessment assist the judge in reaching a conclusion or the right conclusion in relation to the child in question?”

He balanced this against the view of Lord Justice Black in the case of to Re T (Residential Parenting Assessment)[2011] EWCA that “a parent facing the permanent removal of their child has a right in all cases to an assessment of their choice rather than one carried out or commissioned by the local authority.” She continued: “Still less is there a principle such as that for which counsel contends, namely that parents must be given the chance to put forward a positive case to the judge determining the issue of whether a care order should be made’.”

After careful consideration and in light of the above; the following amendments were made to accommodate subsections (7A) and (7B) to section 38 of the Children Act 1989 as affected by the Children and Families Act 2014 and are set out 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 key point to note in respect of these amendments is that the Court has regard to the qualifying requirement to grant further assessments or expert evidence only if it is “necessary” in order to assist the Court in resolving the proceedings.