Birmingham City Council v BR & Anor

This case concerns a child born on 4 June 2025. The local authority’s concerns at the outset of these proceedings centred around the issue of neglect due to poor home conditions, lack of routine and an inability to provide consistent care without professional support. There were also concerns as to Mother’s inability to regulate her own emotions, inconsistent decision-making and lack of understanding of the child’s emotional needs and inability to meet the same.

The mother has six older children, all of whom are no longer in her care due to concerns in relation to them in respect of domestic abuse, unsafe relationships, lack of insight and non-cooperation with professionals.

I note that a psychological report on the mother was completed in 2021 which stats that she has been assessed as having an IQ of 70 which falls into the learning disability category. She has specific problems with memory and attention.

As part of the previous proceedings she has had two residential assessments, both of which were terminated. She also had independent assessments whereupon it is said she was able to convey to professionals that she could make positive changes, however she was not able to sustain those over a sustained period.

At the outset of these proceedings, the child was placed with a maternal aunt in Flintshire, Wales, the local authority sought continued separation from the mother and, on the basis that the local authority had undertaken a parenting capacity assessment dated 18 November 2025 using the Parent Assist model which had negatively assessed the mother, was not proposing any further assessment of her.

Ultimately the mother opposes the plan of the local authority for the child to remain living with the maternal aunt and her partner and seeks the return of the child to her care.

At the previous hearing she indicated a wish to seek a further parenting assessment and sought permission to release the papers to a number of residential assessment centres so as to inform the court as to any application for further assessment.

In her statement before the court at the first hearing, she indicated that at a family group conference held in April 2025 the plan was for her baby to remain in her care, but she agreed nevertheless a plan to place the child with her sister due to the acknowledgement of her own history and her intention to move near to her sister in Flintshire.

She rejects and does not accept the parenting assessment of her and its outcome. She says that there was limited involvement with the social worker and she did not observe her fully with the child. She wants a proper assessment. She regards the assessment as unduly negative and unfair.

She also stated that a previous positive parent assessment within previous proceedings was not referred to. She accepts that she did abduct her previous children but would not do that with this child and accepts that she made a mistake. She maintains her mental health is currently being managed and her home conditions have improved. There are no issues with drugs and alcohol and she denies domestic abuse.

The position of the child’s guardian at the previous hearing was that she acknowledged that there was an assessment of the mother but that it was based upon historical matters. She felt it lacked analysis of the mother’s current parenting capacity and made a number of criticisms in relation to the assessment.

She did not support a residential placement at that stage but did support a community-based assessment, and following on from that a further review.

There is a statement from Breath, formerly known as Breaking the Cycle, which Mother has engaged in since July 2025. She has shown commitment and insight. Understandably, intervention is open-ended and proceeds at her pace. The work is focused on trauma and loss.

Following on from my order of 2^nd January 2026, a number of developments have occurred.

The mother has responded to the threshold, which she disputes for the reasons that I have alluded to, namely that there was a previous positive assessment, improvement of home conditions, no evidence that the child would be mistreated by her or being at risk of harm, and she disputes that she is unable to respond to her child’s needs and provide stimulation and emotional support.

Due to having no contact with the Father, her exposure to domestic abuse she says is no longer an issue.

In light of the above the mother has now made an application for an assessment by an organisation called 38.6 Solutions. They are based in Wales. A viability assessment has been completed wherein they have agreed to undertake a community-based assessment over a period of eight weeks, and if that is successful, a residential assessment thereafter.

The assessment comes at some cost, primarily because they are willing and able to offer Mother accommodation in Wales for the duration of the assessment itself. That is something that has concerned the local authority who themselves do not oppose an assessment of the mother on a community basis, but offers their own solution in relation to that.

The child’s guardian highlights the following issues in relation to the mother:

It is her view that the assessment proposed by the mother addresses the above identified risks and, more importantly, is adapted to meet her learning needs.

The guardian is of the view that what is required is a robust, specialist and proportionate assessment which currently the court does not have.

The application Mother has made, the guardian feels, is justified and is necessary to enable her ability to care and work with professionals to be assessed and that she needs to be presented with a meaningful opportunity to engage in light of her learning difficulties.

As previously indicated, the local authority agrees that there should be a further assessment of the mother but it does not agree to a residential assessment in Wales, albeit it agrees to a community-based assessment in accordance with their own separate plan, and not by 38.6 Solutions.

The proposals of 38.6 Solutions to accommodate the mother as part of the assessment, they regard as not appropriate and not part of the assessment itself. The assessment should be directed towards the child and not the mother and, therefore, they propose the matter should be undertaken by an independent social worker.

This matter previously came before me on Wednesday of this week.

At that stage there was no written plan, and it was the wish of the child’s guardian to see the local authority’s proposed plan so that she could assess its fairness having regard to Mother’s learning needs.

The local authority’s skeleton argument for that hearing confirmed that they accept the need for a further assessment, but repeat that the assessment unit proposals and costs to provide the mother with accommodation is potentially outside the scope of section 38.6; the focus being on the provision for Mother and not the assessment of the child. A community-based assessment can equally be undertaken by an independent social worker. There is also the issue of the costs on what is proposed.

On behalf of the mother it was contended that the child is currently with the maternal aunt in Flintshire, Wales and the mother would need to travel for the purposes of a community-based assessment. It is was further contended that Mother’s presence near the child is an integral part of the assessment itself and under the Equality Act the local authority is required to make reasonable adjustments to enable a proper assessment in accordance with the Mother’s Article 6 rights. The mother needs to be physically present in Wales to enable a full and proper parenting assessment, an assessment which everybody agrees with. The assessment is not for additional services. The mother’s presence in Wales in the accommodation provided is to enable a fair assessment to take place.

The local authority recognised that there is a duty to make reasonable adjustments and steps under the Equality Act where someone may be placed at a substantial disadvantage. The case is argued on the basis that it is a fundamental requirement that Mother needs to be in Wales due to her learning disabilities, but the local authority’s view is that the fairness and effectiveness of any assessment of the mother, certainly between the social worker and Mother in relation to one-to-one sessions, does not have to be undertaken locally in a place where the child currently resides. In essence, Mum’s learning difficulties can be accommodated within that assessment by a PAMS trained assessor and, such being the case, that would provide a reasonable adjustment.

It is further contended that potentially the issue of providing mother with accommodation is outside the scope of section 38.6. It was put forward that stage one of the community-based assessment of 38.6 Solutions refers to intensive interventions with the mother, teaching and courses fall outside the scope of section 38.6. The question is posed as to how a conventional community-based assessment would be deficient as opposed to that put forward by the mother which provides in essence a gold standard service, the costs of which are not justifiable.

Accordingly, their submissions are that the proposed assessment falls foul of section 38.6, not being an assessment of the child and, even if that is incorrect, the proposed assessment put forward by Mother is not necessary given what the local authority intend to undertake.

The child’s guardian maintained that the application does fall within section 38.6 as it is an assessment of both the mother and the child and accommodation is integral to that. It is a mechanism by which an assessment can be fairly undertaken. It does not provide therapy or treatment.

The mother will need to catch three trains in order to get to Wales and the reference to a conventional assessment should not apply to what is regarded as an unconventional case. The child is currently based in Wales and has been so for a not insubstantial period given the child’s age. The mother has learning needs and, therefore, the assessment needs to be a fair assessment to enable the mother to give it her best shot.

The local authority’s plan has not been committed to paper and there is no flesh on whatever meagre bones at that time there were.

In response to the local authority, Mother’s solicitor reiterated that it was always Mother’s intention to move to Wales to receive support from her family. For the assessment to take place away from the locality of the child and the current carers creates an artificial environment and places unnecessary hurdles in Mother’s way, and that a community based assessment should be in the community in which the child is now based and it is not precluded by section 38.6.

In order to explore the local authority’s plan so that I can give thorough consideration to what is a difficult issue, I adjourned the hearing to today, in order for the local authority to put forward a detailed plan for consideration, and in consultation with the child’s guardian, so as to address her concerns.

I also indicated that the local authority needs to consider the issue as to mitigating the traveling the mother has to undertake prior to any contact and any assessment so that she is able to give of her best.

I understand that, unfortunately, no discussions took place between the social worker and the child’s guardian prior to the completion of that plan.

In essence, the plan is for there to be seven face-to-face meetings with the mother for a duration of one and a half hours in Birmingham and three observed contact sessions in Wales. In relation to the overnight contacts, Mum will have overnight accommodation in a hotel both before and after contact. The costs it is proposed of the independent social worker as proposed by the local authority will be £4,078. On top of that, there will be accommodation costs which are not specified. The report will come in ten weeks post letter of instruction.

The Guardian continues to support Mum’s application. She regards the written plan of the local authority deficient. She feels that it does not provide the same evidential value as the assessment proposed by the mother and lacks the same depth and consistency and structure. Mother’s proposals show a plan which is adapted to her needs as she is a vulnerable person.

The local authority is of the view that observations of contact should take place in a single contact room. The guardian feels that that is not appropriate and she contrasts that with the facilities provided by 38.6 Solutions.

The guardian reiterates that this assessment falls within section 38.6, namely it is focused on the child and the child’s relationship with the mother and the highlighted risks. The accommodation is not a service but a means to facilitate the assessment in a realistic setting in a locality where the child resides. The intervention is not therapeutic and the learning components are ancillary and observational. She feels that even accommodating the mother overnight will not address the guardian’s concerns. Mother will be in an unfamiliar hotel which will be disconcerting for her. The contact sessions will be short and the plan of the local authority, she is of the view, would not replicate the structured multidisciplinary observations provided by 38.6 Solutions. In essence, the local authority’s proposals potentially set the mother up to fail through a combination of a number of factors.

The Mother reiterates the fact that it was always her intention to move to Wales and to be supported by her family and a community-based assessment is all that is sought at this stage.

It would be an eight-week assessment. The parenting assessment itself has a fee of £3,400 and the bulk of the fee of £12,000 is £1,500 a week over eight weeks which I would imagine is largely the accommodation part.

It is that accommodation, she says, that is crucial to enable her to be close to the child and her support network during the assessment because that, she says, most reflects the ultimate scenario which Mother proposes.

The facilities provided will enable the mother to show the full potential of her parenting skills in a realistic setting and in accordance with her needs. She agrees with the guardian that the local authority’s plan does not replicate this.

She is concerned as to the impact of her having to travel, overnight accommodation in an unfamiliar setting, and the venue is unsuitable in relation to enabling a proper assessment of the child and the mother within a more realistic setting.

I have had the opportunity also of seeing the updated viability assessment. I note that there is inbuilt flexibility with regard to increased observation in relation to contact, including Mother’s accommodation, subject to any observations of the local authority; support and signposting; a designated key worker with weekly visits; and bi-weekly review meetings.

The local authority’s submissions come down to the fact that the Mother has been travelling to Wales in any event for contact. Of course, that is true, but that is not the same for the purposes of an assessment.

The local authority submits that the observation of three contact sessions is standard and the test of necessity is not met solely due to the fact that the assessment has to be undertaken in Wales and that what is proposed, and the interventions proposed by 38.6 Solutions, falls outside of the provisions of section 38.6 itself.

It is very important in this case to focus upon the individual who is to be assessed. It is clear that Mother falls within the learning disability category as evidenced in the psychological report previously prepared and as set out in the case of Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NI Fam 8.

The concept of parenting and support must underpin the way in which the court and professional approach, wherever possible, parents with learning difficulties and that, of course, includes in relation to assessments.

That case highlights that a shift must be made to a process of questioning why appropriate levels of support are not provided to so that vulnerable parents can parent successfully. This means a court carefully enquiring into what support is needed to enable parents to show whether or not they can be good enough parents rather than automatically assuming that they are destined to fail. Consequentially, parenting with support must move from the margins to the mainstream in court determinations.

I am aware of the Good Practice Guidance on working with Parents with a Learning Disability which was published in 2007 by the Department of Health and the Department of Education and Skills and updated in July 2021 by the Working Together with Parents Network. In essence, every effort should be made to support, not supplant a parent.

London Borough of Enfield v E (Unconscionable Delay) [2024] EWFC 183 states that it is to be acknowledged that care must be taken to ensure that a parent with learning difficulties is given a fair chance to demonstrate that they have the capacity to care for their child. Fairness means both fairness in having the necessary assessments and for the assessments themselves, in my view, to be fair.

Under the Equality Act 2010, disability includes learning difficulties as well as mental health conditions. Parents under a disability must not be placed at a substantial disadvantage. The Equality Act imposes a duty on the local authority to make reasonable adjustments so as to eliminate discrimination and to adapt their plans.

The case of A Local Authority v G (Parent with learning Disability) [2017] EWFC B94 further highlights what good practice should look like from a social care perspective namely:

Lower levels of contact will not allow them to embed their teaching if they are given limited opportunities so to do. A high level of contact is essential to learning by practice.

In other words, parents must be given every opportunity to show that they can parent safety with appropriate support and to build in from the outset the extra time the parent with learning difficulties needs, to do otherwise puts that parent at a disadvantage.

Where the court makes an interim care order or supervision order it can give such directions as it considers appropriate with regard to the medical and psychiatric examination or other assessment of the child. Assessments of the parent alone fall outside its scope.

However, section 38.6 should be broadly construed, and an assessment of both the child and the parents come within that construction.

As set out in Re G (Interim Care Order) [2006] 1 FLR 601, it is impossible to assess a young child divorced from their environment. The interaction between a child and their parents, or other persons looking after them, is an essential element in making any assessment of a child, as well as a parent’s capacity to learn and develop their parenting skills and assessing any risks they might pose bearing in mind that by section 1(3) of the Children Act a court is required to consider how capable each of the parents are of meeting the child’s needs.

As set out in Re C (Interim Care Order: Residential Assessment) [1997] 1 FLR 1, although financial resources are relevant and important factors, they do not carry decisive weight.

Although scarcity of resources and money is a proper consideration for the court, having regard to the court’s overriding objective to saving expense and allotting to a case the appropriate share of the court’s resources when dealing with the case justly, the key issue is whether the assessment is necessary to provide the court with the material and information required to enable it to reach a proper decision about the care of a child.

As case law reiterates, sections 38.6 and 7 should be broadly construed. They confer jurisdiction on the court to order or prohibit any assessment which involves the participation of the child and is directed to provide the court with the material which, in the view of the court, is required to enable it to reach a proper decision at the final hearing of the application for a full care order. In exercising its discretion whether to order any particular examination or assessment, the court will take into account the costs of the assessment and the fact that local authority’s resources are notoriously limited.

However, as set out in Re W (Residential Assessment) [2011] EWCA 661, the key principle is that of necessity not cost.

As further elaborated in Re M (Residential Assessment: Directions) [1998] 2 FLR 371, 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.

The overall best interests of the child may sometimes require short-term delay, disruption or even upset, if that enables the best and most informed long-term decision to be made. The proposed assessment must be necessary to enable the court to discharge properly its function of deciding whether or not to accede to the local authority’s application for a care order and must be directed to providing the court with material which in the view of the court is required to enable it to reach a proper decision. In exercising the court’s discretion, the relevant factors include the welfare of the child, the likely outcome of the assessment, the costs and the interests of justice.

As set out in Re G (Interim Care Order: Residential Assessment) [2006] 1 FLR 601, the purpose of section 38.6 is not only to enable the court to obtain the information it needs, but also to enable the court to control the information gathering activities of others.

Further, assessments should only be commissioned if they can bring something important to the case which neither the local authority nor the guardian are able to bring.

In summary, therefore, the purpose of the section is to enable the court to obtain the information it needs.

A judge faced with an application such as this has to bear two questions in mind. The first is whether the proposed assessment falls under the scope of the section, and the second is whether an assessment is necessary to assist the court to resolve the proceedings having regard to the maters set out in section 38.7(b).

Both of those matters have to be approached in the light of the European Convention on Human Rights Article 6 and Article 8.

As set out in the case of Re L&H (Residential Assessment) [2007] 1 FLR 370, before removing the children permanently from their natural families and placing them for adoption with strangers, the court should be astute to ensure that the case has been fully investigated and that all relevant evidence necessary for the decision is in place. Article 6 and Article 8 of the European Convention on Human Rights requires it, as does the underlying philosophy of the Children Act.

Overall, the proceedings must be fair.

Although the local authority’s case in this matter is not for placement outside the family, it is proposing, at least at this stage, that the child should remain with family members and, therefore, at present, not reunited with the mother which, of course, infringes her Article 8 rights.

An assessment for the dual purpose of providing information on how well the mother manages practicalities of parenting and information on how a parent copes with the stress of caring for a child in a supervised environment is essential to the issue of the child’s welfare and the issue of whether or not the child could be reunited with the parent(s) in the community. It is manifestly in the interests of the child to obtain that evidence, even though the local authority may be proved right in their view. The essential issue is that of fairness and proportionately applying Articles 6 and Article 8.

As set out in Re K (Care Order) [2007] 2 FLR 1066, it is manifestly in the interests of a child to see if their parents are able to care for them and it is the responsibility of the court to ensure that it has the best evidence in which to reach a conclusion about their welfare. It is also procedurally fair for their parents to be given an opportunity to demonstrate that they can overcome their manifest difficulties and care for them and it would be unfair were they to be denied the opportunity.

Again, in McG v Neath County Borough Council [2010] EWCA 821 there must be procedural fairness and proportionality with the emphasis on the draconian nature of removing a child from their carers without every available opportunity being pursued before final orders are made. Thus, if there is any possibility that some useful and relevant information might come out of an assessment, then the parents should be given the opportunity of having one. Given the importance of the issues to the child concerned and their family, every case needs to be fully and properly investigated. So drastic a step should be undertaken only when all avenues towards rehabilitation have reasonably been explored.

As stated in A London Borough v A [2012] EWHC 2203, the prize for children of being cared for by their parents is so valuable that they should only be denied it if the disadvantage and weighting are too great, or the chance of success too small.

As I have said, this is a case where the issue of assessment is not disputed. The issue is whether it should be done by an independent social worker in relation to one-to-one sessions with Mother in Birmingham and observations of her contact in Wales, with provision that she is allowed to stay overnight; or whether this needs a more intensive arrangement whereby she is accommodated in Wales for the whole of the assessment’s sessions which 38.6 Solutions offer.

I must also have regard to sections 38.7 (B) of the Children Act 1989 which provides a non-hierarchal, non-exhaustive list of factors for consideration of the court before ordering such an assessment, albeit in this case it is not formally contested, but it is relevant when deciding the two scenarios put forward namely:

This mother is vulnerable. She falls within the learning disability category and caselaw, as I have referred to, indicates that every reasonable step should be taken to ensure that she has full opportunity within these proceedings to have a fair and thorough assessment.

Those assessments, in my view, must be tailored to the parent concerned in order to have evidential weight.

The local authority’s plan for proposed assessment, it is argued, potentially sets up the mother to fail. The assessment is split between one-to-one sessions with Mother in Birmingham and then, observations of contact in Wales. It is contended that that places hurdles in front of the mother who falls within the learning disability category, notwithstanding the fact that she is being put up overnight prior to those observations. She would be required to travel not an insubstantial distance catching three trains, having been put up overnight before the observations of contact. The contact sessions will be limited to three and the observations would take place in the contact room.

In my view, I accede to both the mother’s and the child’s guardian’s views that for this parent, that potentially could place her at a substantial disadvantage in relation to a fair assessment.

I accept that the proposals put forward by 38.6 Solutions with regards to accommodation is integral for the purposes of a fair assessment. It will allow observation in an environment and a geographical location which ultimately Mother intends to move to which is more reflective of the reality. It will provide scope in relation to increased observations of contact if felt necessary, subject to the local authority’s views, and in an environment which is more conducive and more consistent to enable the mother to give of her best, in what undoubtedly is going to be an exceedingly important assessment, before the court is able to reach its conclusions in this matter. The evidence before the court must be the best evidence that can realistically be obtainable. It may well be that assessments will take place within the accommodation offered to her as well as, or in addition to, the organisation’s own contact centres.

There is nothing in the updated viability assessment I have read which points to it being outside the parameters of section 38.6.

There are observations of contact, there is both support and signposting, there is a designated key worker and weekend visits with a bi-weekly review meeting. It is not, in my view, therapeutic support or training. It is observation and the only interventions required will be in relation to preventing any significant risk.

Accordingly, I find the assessment put forward from the mother falls within section 38.6 despite the fact that it requires the mother to be accommodated. I regard it as an integral part of the assessment and necessary in the circumstances and an assessment which ultimately, I regard as fair to enable the mother to give of her best.

I therefore authorise the community-based assessment as sought. Of course, any further assessment beyond that will have to be treated on its own merits.

That is my decision and the reason for it.

I am also inclined to direct a transcript of my judgment at public expense and to publish it anonymised.

Firstly, it is contended that I have construed section 38.6 too broadly.

As I have indicated, caselaw clearly shows that it should be broadly construed and should be an assessment of both the child and their parents, or mother in this case, and that comes within that construction, and that you cannot assess a young child divorced from their environment. One has to assess the interaction between a child and their parents.

It may be argued that that therefore means that any separate assessments of the parents’ capacity to care for the child should not be undertaken without the child being present, but in my view that creates an artificial scenario. In residential assessments there are often discussions, feedback as well as observations, and such discussions and feedback are often undertaken without the child being present or at least actively involved.

I appreciate that if the assessment was solely of the mother it would fall outside the scope of the section and would be determined in accordance with the parameters of a part 25 application, namely expert evidence being limited to that which is necessary to resolve the proceedings justly.

However, this is not an assessment of the parent alone for the reasons that I have indicated and, indeed, the assessment put forward by the local authority in relation to an independent social worker itself has seven sessions with the mother alone, and three sessions in relation to observed contact.

Secondly, in relation to me not considering the plan of the local authority, I have considered the plan. However, it is not in my view a fair assessment given this mother’s difficulties and given the geographical difficulties in this case, and the combination of these factors makes the assessment potentially unfair and potentially sets this mother up to fail in what is an important issue bearing in mind, of course, the court’s acute awareness as to her learning difficulties and that steps need to be taken to ensure fairness not only in assessments but throughout the entire process.

Indeed, if this was an application under part 25 rather than under section 38.6, I would have granted it on the basis that it is necessary to resolve the proceedings justly.

With regard to this being a novel point of law, I accept that this is a situation which I have not formally come across. I am unaware of any caselaw in relation to this particular aspect, but the provisions of section 38.6 talks about giving directions with regard to the medical, psychiatric examination or other assessment of the child.

I accept that the common usage of section 38.6 is for residential assessments. The case is not put forward to me today as a residential assessment. In fact, it is suggested that there should be two stages: a community-based assessment, then potentially a residential assessment.

The wording of section 38.6 however talks purely in relation to an assessment of the child. It does not clarify that that has to be a residential assessment, although it is often the case because, of course, the assessment has to be of the child rather than the parent alone. But on the same logic, the caselaw proposes that assessment of both the child and the parents need to be broadly construed. It is my view, this assessment falls within that category in order to enable it to be properly undertaken.

Permission to appeal is ordinarily granted where the appeal would have a real prospect of success or there is some compelling reason why the appeal should be heard.

One of the grounds is that I have made an error of law or conclusion on the facts which was not open to me in the evidence that has been reached; or that I have failed to give due weight to some very significant matter or given undue weight to some other matter.

In relation to this, and whilst accepting of course that the local authority are of the view that this is an unusual order to make on the basis of a community based assessment, I am not satisfied that I have made an error of law or made a decision which the evidence points that I should not have made or given matters undue weight.

Thus, despite what has clearly been a difficult decision, I am not minded to give permission to appeal. The combination of Mother’s learning disabilities and the steps that she would need to take as proposed by the local authority, as compared to that offered by 38.6 Solutions, leads me to the view that fairness dictates, as do the provisions of section 38.6 itself, that I should accede to the mother’s application, which I have carefully considered alongside the local authority’s objections and the caselaw before me.

Accordingly, permission to appeal is refused.