My viability assessment is negative, what can I do?

When the Local Authority initiate court proceedings in respect of a child, the parents of that child have the opportunity to put forward people they want to be assessed as alternative carers.

This is because in the event the child cannot return to the care of the parents, the Court needs to be satisfied that all other options have been explored.

An alternative carer assessment is commonly referred to as a Viability Assessment or Suitability Assessment.

Once this has been completed, the Local Authority will provide the alternative carer with a copy of the assessment confirming the outcome. If the assessment is negative, they should also be provided with a list of local solicitors to be able to obtain advice on the assessment.

Many people do not agree with the outcome of their assessment when it is negative. However, they do not always know what they need to do next to be able to challenge the assessment.

Challenging the assessment

In practical terms, when you decide you wish to challenge a negative assessment you should write to the Local Authority within seven days and notify them of your intention to challenge the assessment. It is worthwhile informing them of your intention to seek legal advice. It would also be advisable to seek legal advice promptly upon receipt of your assessment.

An application would then need to be filed with the Court setting out that you are seeking to challenge the negative assessment. This application should be accompanied by a short statement addressing the information in the assessment that it is felt has been wrongly recorded or is inaccurate.

An application of this nature would attract a court fee, unless you were eligible for a fee remission.

The Court will then list a short hearing to deal with the application. This hearing will consider the following issues arising from the application:

Should the person be given permission to challenge the assessment?

If so, who should complete the updating assessment? Should this be done within the Local Authority or should this be completed by an Independent Social Worker?

Should the person be joined as a party to the proceedings to be able to participate in the Court process?

You would need to attend this hearing to ensure you have the opportunity to explain to the Court why you feel that you should be given the opportunity to challenge your assessment. The other party’s legal representatives will also have the opportunity to offer their views on the application to the Court.

It is worth noting, that in the event the application to challenge is refused then it is unlikely that person will be joined as a party to the Court proceedings. This is because their role comes to an end if there is no ongoing assessment of them.

The Law

When considering both a person request for permission to apply for further assessment and to be joined as a party to the proceedings, the Court must consider Section 10(9) Children Act 1989. This sets out a number of factors to consider when a person seeks a Section 8 Order, this includes; the nature of the application, the persons connection with the child, the Local Authority’s plans for the child’s future, and the wishes and feelings of the child’s parents.

A Section 8 Order could include either a Child Arrangements Order or a Special Guardianship Order.

Whilst the above factors are an important consideration, the Court should still consider if the person seeking to challenge has an arguable case. In Re: J (Leave to issue application for a Residence Order) [2003] 1 FLR 114, it was considered that the Court should still ask itself “has the Applicant satisfied the Court that he or she has a good arguable case?”.

Whilst having an arguable case is a consideration for the Court and also for any party seeking to challenge a negative assessment, this alone may not always be enough (Re: B (Paternal Grandmother: Joinder as party) [2012] 2 FLR 1358). The Court has confirmed that the right approach of the Court when considering any persons application to challenge is to consider the following factors:

 
• The factors in Section 10(9) of Children Act 1989
 
• Whether there is an arguable case
 
• The wide discretion of powers available to the Court.
 

Finally, in the event the Local Authority are not undertaking any further assessment and this falls to an Independent Social Worker, the Court must also consider the law surrounding expert evidence.

This includes Rule 25.4(1) of the Family Procedure Rules 2010 that states no party may call an expert or put in evidence an expert report without the court’s permission. When considering permission the court has to be satisfied that the evidence is necessary to assist the court to resolve the proceedings. It cannot simply be desirable.

The court should also have in mind the overriding objective of the Family Procedure Rule 2010.   The overriding objective enables the court to deal with cases justly so far as practicable, having regard to the welfare issues involved.  

Legal Aid

There is Legal Aid available for a person seeking to challenge an assessment. However, this is only awarded in limited circumstances.

The Legal Aid test is a means and merits test. This means that not only do you need to have significant merits to challenge the outcome of the assessment, but that you must also meet the financial threshold. Each practitioner may take a slightly different view about the merits involved in challenging an assessment.

To anyone seeking to challenge a negative viability assessment, it is clear from the law that it is really important that you set out clearly exactly what in the assessment you are challenging, why you feel that is inaccurate, and what your relationship with the child is.

For further information or advice about challenging an assessment please contact Kerry Avis on 01733 394000 or by email at Kerry.avis@familylawgroup.co.uk