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Family Law

The leading authority on all aspects of family law

20 MAR 2007

CARE PROCEEDINGS: Re L and H (Residential Assessment) [2007] EWCA Civ 213

(Court of Appeal; Thorpe and Wall LJJ; 14 March 2007)

The judge had been wrong to refuse the residential assessment recommended by the expert, characterising it as involving therapy, and therefore outside the scope of Children Act 1989 (the 1989 Act), s 38(6). An assessment for the dual purpose of providing (i) important information on how well the mother managed the practicalities of parenting and (ii) important, if not vital, information on how the parents' relationship bore up under the stress of caring for the child in a supervised environment, was central to the issue of the child's welfare. Before removing children permanently from their natural families and placing them for adoption with strangers, the court should be astute to ensure that the case had been fully investigated and that all the relevant evidence necessary for the decision was in place; Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 required it, as did the underlying philosophy of the 1989 Act. There would, of course, be cases in which a s 38(6) assessment would be a waste of time and public funds: parents who had inflicted injuries on their child but had failed to acknowledge their responsibility or a woman who did not accept that a paedophile partner was a risk to the child, but this was not such a case. The local authority and the guardian might be right in their view that the parents were simply unable to parent satisfactorily, but it was manifestly in the interests of the child to obtain evidence on the issue.

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