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28 JAN 2009

CARE PROCEEDINGS: Re M (Assessment: Official Solicitor) [2009] EWCA Civ 311

(Court of Appeal; Thorpe and Wall LJJ; 28 January 2009)

Because the mother, herself a minor, lacked the capacity to instruct lawyers, the Official Solicitor was representing her in the care proceedings brought by the local authority in respect of the child. The local authority had funded a residential assessment of the mother, but that assessment had failed. The local authority had also instructed a consultant psychologist, whose report stated that the mother had a zero chance of providing adequate parenting unless she received 2 years of intensive psychotherapy. The Official Solicitor applied to the court, seeking a fresh psychiatric report from a different psychologist, and seeking a viability assessment to determine whether or not there should be a further residential assessment from a different assessment centre. The judge refused these applications, on the basis that these additional reports were unnecessary, would be disproportionately costly, and might unfairly raise the mother's hopes. The Official Solicitor appealed.

The court allowed the appeal: if the Official Solicitor, with his responsibilities within such litigation, required a medical assessment, a judge should be slow to refuse it, especially if, as in this case, a refusal would effectively deprive an incapacitated litigant of any prospect of averting care and placement orders in respect of a child. The Official Solicitor had a duty to explore avenues to find out if the mother could parent the child, to investigate the case on the mother's behalf and to obtain whatever evidence he thought appropriate. RP v Nottingham CC [2008] EWCA Civ 462, on the role of the Official Solicitor in such cases, should have been brought to judge's attention. A judgment on the proportionality of costs had to recognise that one possible consequence of the reports requested by the Official Solicitor might be to curtail future costs, because if these reports were unfavourable to the mother, that would effectively be the end of the forensic road for her. The court had the impression that this application had been presented to the judge as an application under Children Act 1989, s 38(6), whereas in fact it had been only an attempt to prepare the way for a s 38(6) application.

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