Trinity Family Barrister Review of West Northamptonshire Council v The Mother [2024]

Trinity Family and Childcare barrister, Kate Fenwick provides a review of the recent High Court decision of West Northamptonshire Council v The Mother (Psychological Assessments) [2024] EWHC 395 (Fam).

Just another Cog – when to apply and when not to apply.

Mrs Justice Lieven handed down a judgment on Friday, 23 February 2024 that should be read by anybody contemplating making an application for a cognitive assessment. Happily for those of us experiencing extreme time-poverty, it’s short – just 27 paragraphs over 7 pages. In West Northamptonshire Council re Y [2024] EWHC 395 (Fam) the Court was asked by the DFJ to consider an application made by M’s solicitor for a cognitive assessment of his client.

Moments before the case management hearing M’s solicitor emailed the court and asked for permission to withdraw the application. Lieven J refused permission to withdraw as she wanted to “consider the matter and give a reasoned decision”, which she duly did. She noted that “it is not acceptable for court time and public funds to be wasted by decisions to withdraw applications being made so late”.

Back to the case..

There was nothing in the interim threshold or the initial SWET suggestive of any cognitive impairment. The Judgment revealed that the Part 25 application had been made before the solicitor had met the client, apparently on the basis of what counsel had reported back after discussions at the first hearing when the LA had been wondering about a Parent Assess assessment.

The solicitor told Lieven J that the application had been made as a “belt and braces approach.” (We’ve all been there!) Unsurprisingly, the court took the view that this did not cross the test of necessity.

Lieven J set out at [10] that applications for cognitive assessments “must be accompanied by proper evidence which explains why the case goes beyond the standard difficulties faced by many parents in care proceedings” and “why the parent’s needs cannot be properly managed by careful use of language and the professionals taking time to explain matters in an appropriate manner.” There must be evidence as to why the proposed assessment is “necessary” rather than “just something that would be nice to have”. She added at [21] that it is “only appropriate to order a psychological assessment relevant to the Court process if the approach in the Advocates’ Gateway was plainly insufficient.”

Put shortly, an application for a cognitive assessment is no different to any other Part 25 application and will only be granted if it passes the test of being necessary to assist the court to resolve the proceedings.

Some might argue that this is one of those ‘chicken/egg’ issues; how do you know the correct approach to take without a cognitive assessment? I suspect the answer is for us all – as experienced Public Law Practitioners interfacing with vulnerable individuals daily – to trust our gut and rely on our experience.

In passing, Lieven J commented adversely on the neutral position taken by the advocate for the child. For those of us instructed to represent children, paragraphs 16 and 17 are important reading in that regard: “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.”