The parents were suspected of causing the child non-accidental injury. The court wanted a residential assessment of the family, but the local authority refused, saying it would be too expensive, and would expose the child to continuing risk. The judge made an interim care order and gave an order for a residential assessment. The parents now appealed the decision of the Court of Appeal reversing that order.
Held: The parents’ appeal succeeded. An order for an assessment of a child together with the child’s family in a residential unit was within the power of the court assessing the need for a care order, and the court had power to override the authority’s objections if that was required to make its own decision. The section is to be given a wide reading, and the Act read purposively. Sections 38 (6) and (7) were not restricted to medical and psychiatric assessment alone. It was clear from the Act that ‘any other assessment’ of the child could be ordered. This could cover an assessment of the interaction between the child and parent. Though the the court may not order a child or a parent to participate in an assessment under s 38(6) it can override the powers the Local Authority.
Lord Browne-Wilkinson: ‘This broad approach is supported by consideration of s 38(7) which does not appear to have been drawn to the attention of the Court of Appeal either in Re M or in the present case. Subsection (7) confers on the court the power to prohibit an examination or assessment which the local authority is proposing to make. It is manifestly directed to the type of conduct by social services revealed by the Cleveland Inquiry, ie repeated interviews and assessments of the child and his parents which are detrimental to the child. This negative control by the court cannot have been intended to be limited to cases where the child, and only the child, is to be assessed. If it is to be fully effective to prevent damage to the child, the power under s 38(7) must also extend to cases where it is proposed to assess the relationship between the parents and the child.’ and ‘ . . it is impossible to assess a young child divorced from his environment. The interaction between the child and his parents or other persons looking after him is an essential element in making any assessment of the child.’
Lord Browne-Wilkinson, Lord Griffiths, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Hope of Craighead
Times 29-Nov-1996,  UKHL 4,  AC 489,  4 All ER 871,  1 FLR 1,  Fam Law 228,  1 FCR 149, 95 LGR 367
England and Wales
Not Followed – In Re M (Interim Care Order: Assessment) CA 2-Jan-1996
There was no jurisdiction under section 38(6) to order residential assessment of a family involved in care proceedings. The words ‘other assessment of the child’ had to be construed as ejusdem generis with the words ‘medical or psychiatric . .
Cited – In re L CA 1996
In exercising its jurisdiction under the Act, the court’s function is investigative and non-adversarial. Ward LJ: the court had no power to order a residential assessment at a specified place. Millett LJ agreed, but said that a judge could impose ‘a . .
Cited – In Re M (Residential Assessment Directions) FD 23-Sep-1998
When ordering a local authority to pay the costs of residential assessment of mother and child, the court should allow for these factors. It must be assessment not treatment, in long term interests of the child, to enable court to decide and not . .
Cited – SD, Re Application for Judicial Review OHCS 2-Oct-2003
Parents sought judicial review of a decision not to open a Record of Needs for their child. A report said that the child was dyslexic. The applicants said his condition had not improved after an earlier request to open a record had been refused.
Cited – In re G (a Child) (Interim Care order: Residential assessment) CA 27-Jan-2004
An elder child had died, and the local authority felt unable to exculpate either the father or the mother. On the birth of this child all three had been brought in for a residential assessment. First one then another extension was sought. The court . .
Applied – Re M (Residential Assessment Directions) CA 1997
The mother was seen to be unstable with a history of self harm, and with a violent association. Two older children were in care, and despite psychiatric evidence that she was improving the authority resisted a suggestion that there be a residential . .
Cited – Kent County Council v G and others HL 24-Nov-2005
A residential assessment order had been made under the 1989 Act in care proceedings. When the centre recommended a second extension of the assessment, the council refused, saying that the true purpose was not the assessment of the child but the . .
Lists of cited by and citing cases may be incomplete.
Children, Local Government
Updated: 19 July 2022; Ref: scu.81774