38 6 assessment

[millie]

Please could anybody tell me what a 38 6 assessment is

[Robin D]

The wording from the act is:

Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.

In effect its the court asking for some sort of an assessment on the child rather than the potential or actual carers.

I don't think its used often but David Roth may know more.

Robin

[David Roth]

Robin is absolutely right on both counts - that it is intended to be an assessment of the child rather than the carers, and that it is quite uncommon. It is worth noting that, as worded, it also enables the court to prohibit the assessment of the child. If social workers wanted to assess a child during proceedings and there were objections, this is the legislation the court would draw on if the judge wanted to stop it.

There has been case law which has clarified the purpose of these assessments. A House of Lords decision limited the scope of the subsection to work whose primary purpose was an assessment; it is not to be used where the work being imposed is in fact 'treatment' or therapy. Another case (Re M (Residential Assessment: Directions) [1998] 2 FLR 371) identified four questions that were pertinent to the question of whether an assessment should be ordered:

i. Does the assessment properly fall within the scope of s38(6) as defined by the House of Lords?

ii. The proposed assessment must not be contrary to the overall best interests of the child, taking a wide and long-term, as well as short-term view of those interests.

iii. Is the assessment necessary to enable the proper discharge of duty in deciding if a care order is appropriate?

iv. It must not be unreasonable to require the local authority to be involved with, and, if ordered, to fund the proposed assessment.

Please come back if you have any questions about the assessment in your particular case.