West Northamptonshire Council v The Mother 2024 EWHC 395 ( Mercifully short judgement - 7 pages)
It would seem that Mrs Justice Lieven was looking for an opportunity to give guidance on applications for a cognitive/psychological assessment in care proceedings. The case had been in the hands of HHJ Carter but he had asked her Ladyship to hear the application.
In this case, the solicitor had applied via part 25 for a cognitive assessment of the mother. However minutes before the hearing he applied, by email, to withdraw the application.
I don’t think the facts need reciting, but her Ladyship delivered a judgement. From that judgement the following is of note:-
Minimal evidence was put in the part 25 application stating why a cognitive assessment was needed. The instruction to expert contained on the part 25 seems to follow a standard request (for that area).
The statement in support read "The Mother is deemed vulnerable due to her age, her past experiences and mental health issues. The mother has indicated that she struggles with engaging within professional meetings and retaining information”
Her Ladyship was clear that an application under Part 25 for a psychological/cognitive assessment must be accompanied by proper evidence which explains why the case goes beyond the standard difficulties faced by many parents in care proceedings. The evidence must explain why the parent's needs cannot be properly managed by careful use of language and the professionals taking the time to explain matters in an appropriate manner. The evidence must address why such an assessment is necessary rather than just something that would be "nice to have”.”
She added that if there were cognitive issues they (probably) would have been noticed early on in proceedings or prior to proceedings.[1]
The guardian remained neutral about the application, which the Judge said was unfortunate She referred to the Presidents The Road Ahead and added that if it is clear to the Guardian and the Child's solicitor that an application should be refused then they should make that clear to the Court. They play an important role in care proceedings in ensuring that the interests of the child are met.
She referred to the meaning of "necessary" as outlined in Re HL (A child) [2013] EWCA Civ 655. A test of necessity does not mean that a report would be "nice to have" or might help in determining what psychological support the parent might need in the future. That is not necessary to resolve the proceedings.
In deciding whether to allow an application for a psychologist to carry out a cognitive assessment, it is also critical to bear in mind the existence of the Advocates Gateway and apply its principles in West Northamptonshire Council v KA (Intermediaries) [2024 EWHC 79 at [46].
It would only be appropriate to order a psychological assessment relevant to the Court process if the approach in the Advocates Gateway was plainly insufficient. It will often be the case that parents may struggle to absorb information, to understand the proceedings and to concentrate through meetings and hearings. However, the solution to this problem is not, in the majority of cases, to have cognitive assessments and appoint intermediaries. It is for all the professionals involved, including lawyers and judges, to bear closely in mind, the need to use simple language, avoid jargon, and where appropriate check that a litigant has understood what is being said. That is all set out in the Advocates Gateway. Mother’s counsel referred to a psychological assessment being useful in determining what support the Mother would need to help care for the child in the future, but that is not the purpose of the Part 25 application said the Judge.
Whether this will be followed to the letter remains to be seen. In a case I was in recently the Local Authority Counsel stated that a cognitive assessment was necessary in order to see if a PAMS assessment would be recommended by the psychologist. Hence the ‘necessary’ test was said to be met by the DJ.
[1] It is interesting to read the comments concerning vulnerability in The Advocates Gateway, in particular with any individual vulnerability may change with time, circumstances etc
