When a Local Authority issues Care Proceedings, the Court must ensure that all parties can participate effectively in the process. One crucial consideration is whether a parent has the mental capacity to understand, engage with and instruct their legal representatives. In some cases, the Court may also need to understand a parent’s cognitive functioning and how this affects their ability to provide safe and consistent care for their child.
Cognitive assessments are psychological evaluations designed to measure how a person processes information, learns, reasons and solves problems. They assess areas such as memory, attention and verbal comprehension. The purpose is not to label or diagnose but to understand how a parent’s thinking skills might influence their parenting capacity or ability to engage with professionals.
Capacity assessments are governed by The Mental Capacity Act 2005 (MCA). They determine whether a person can understand, retain and weigh information in order to make a specific decision, and then communicate that decision. Capacity is decision-specific and time-specific, meaning a person might have capacity for some decisions (for example attending contact with a child) but not for others (such as instructing a solicitor).
Within Care Proceedings, cognitive and capacity assessments are often directed when concerns arise about a parent’s ability to understand the concerns being raised by professionals, engage in assessments or make safe decisions about their child’s welfare, or provide consistent care where there may be evidence of learning difficulties, mental health needs, or neurodiversity.
Cognitive and capacity assessments can influence whether a parent needs additional support or reasonable adjustments (for example simplified documents or an intermediary at Court), the approach professionals take when working with the parent, the viability of rehabilitation plans or support plans, and decisions about whether a parent has capacity to instruct a solicitor or consent to plans for a child. A cognitive assessment may conclude that a parent requires a specialist parenting assessment known as a ParentAssess parenting assessment. https://www.johnsonastills.com/child-care-or-issues-involving-social-services/what-is-a-parentassess-assessment-how-is-it-different-to-pams/
An expert psychologist, psychiatrist or other suitably qualified professional is usually appointed under Part 25 of the Family Procedure Rules 2010 to carry out the assessment and provide an independent report to the Court. The Children Act 1989 underpins the Court’s focus on a child’s welfare as the paramount consideration; however, the Family Procedure Rules 2010 requires the Court to ensure that all parties can participate fairly. Where a party lacks litigation capacity, the Official Solicitor may be appointed on their behalf.
The Court must balance fairness to the parent with the need for Proceedings to progress without delay. Expert assessments are only directed where necessary to assist the Court’s understanding.
Cognitive and capacity assessments play an essential role in ensuring fairness and informed decision-making in Care Proceedings. They help the Court understand not only a parent’s limitations, but also their strengths, enabling decisions that are both protective of children and respectful of parents’ rights. Properly instructed, and clearly reported expert assessments support the Court’s duty to achieve a just, proportionate and fair outcome for every family.
If you have been asked to undertake a cognitive and capacity assessment, please get in touch with Johnson Astills to see how we can assist. Please call us at our office in Leicester on 0116 255 4855 or our office in Loughborough on 01509 610 312 and ask to speak to a member of the Care Team. Alternatively, you may prefer to email us at legal@johnsonastills.com or fill in our enquiry form.
