Cognitive and Capacity Assessments in Care Proceedings

A Cognitive Capacity Assessment Guide for Parents and Carers

Social services may be working with your family. Or you may already be in the family court. You might be asked to take part in an assessment.

An assessment looks at how you take in information. It looks at how you make decisions and what help you might need. It is not a test of whether you are a good parent.

People often call this a cognitive and capacity assessment. It is usually one appointment with one expert, who writes one report. That report answers two questions. One is about how you take in information. The other is about whether you can run your own case.

This guide explains both questions. It covers why the court might ask for the assessment, what happens on the day, and what the result could mean for you. It covers the law in England and Wales.

You may be asked to take part in one of these assessments.

• Cognitive and Capacity Assessments
• Psychological Assessment
• Psychiatric Assessment

What is a Cognitive Assessment?

In the first part of the assessment, a psychologist will:

• Look at how your mind works with information.
• Look at your memory.
• See how well you keep your attention on something.
• Look at how you read and understand things.
• See how quickly you take in something new.

The point is to help everyone find the best way to talk to you. Maybe you find long documents hard to follow. Maybe you need more time to take things in. If so, the report will say so. The court and social services can then change how they work with you.

This is not a test of how clever you are. It is not a judgement about you as a parent. It is about finding out what help you need, so you can take a full part in your own case.

What is a Capacity Assessment?

The second part is about decisions. It asks whether you are able to make one decision at one point in time.

In care proceedings, that decision is usually whether you can run your own case. This means understanding what the case is about. It also means being able to tell your solicitor what you want them to do.

Lawyers call this litigation capacity.

Capacity is decided under a law called the Mental Capacity Act 2005. It covers anyone aged 16 or over. The law starts by assuming you can make your own decisions. Someone has to prove otherwise before that changes.

The Two-Stage Test

There are two stages to the test in the Mental Capacity Act 2005.

1. Is something affecting the way your mind or brain works? It might be a learning disability. It might be a brain injury. It might be a mental health condition.
2. If so, does that stop you making this decision? You are treated as unable to make a decision if you cannot understand the information, cannot hold it in your mind long enough, cannot use it to make a choice, or cannot tell anyone what you have chosen.

Both stages have to be met. Finding one part hard does not on its own mean you lack capacity.

Rules that Protect You

• The law assumes you can make your own decisions until someone shows that you cannot.
• People must give you all the help they reasonably can before they say you cannot make a decision.
• Making a choice that other people think is a bad one does not mean you lack capacity.
• If you are found to lack capacity, any decision made for you must be in your best interests.
• Anything done for you must limit your freedom as little as possible.

What is the Difference Between a Cognitive and a Capacity Assessment?

You will usually only go to one appointment. The psychologist looks at both questions and puts both answers in the same report.

It still helps to keep the two questions apart in your head. They are decided in different ways. They also lead to different things happening.

The cognitive questions	The capacity questions
How do you take in, remember and use information?	Can you make this decision at this point in time?
There is no set legal test. The expert describes how you learn and understand things	There is a legal test. It is the two-stage test in the Mental Capacity Act 2005
Helps work out what help you need to take part fairly	Helps work out whether you can run your own case with a solicitor
May lead to changes such as plain words, breaks or an intermediary	May lead to a litigation friend being chosen to act for you

The two can also be done separately. Sometimes the only worry is whether you can run your own case. Then you may only have a capacity assessment. Sometimes nobody doubts your capacity, but the court wants to know what help you need. Then you may only have a cognitive assessment.

Most parents who are assessed are found to have capacity. Usually, the assessment just helps the court put the right help in place.

Why Might the Court Order a Cognitive and Capacity Assessment?

Your solicitor might suggest it. So might the social worker. So might the children’s guardian. It can be raised before the court case starts, at the stage called the Public Law Outline. It can also be raised once the case is in court.

Common reasons include the following.

• You had learning difficulties, or extra help at school.
• You have had a head injury.
• You find reading or writing hard.
• People working with you feel that information is not going in.

The court does not order these assessments unless they think they may help. Part 25 of the Family Procedure Rules 2010 says an expert can only be brought in when that is needed to decide the case fairly. The judge has to be sure the assessment will add something.

The President of the Family Division said the same thing in guidance in January 2025. That guidance covers intermediaries, lay advocates and cognitive assessments in the family court.

“If someone asks you to agree to an assessment and you are not sure why, ask your solicitor. Ask them what question the assessment is meant to answer. You have a right to know.”

What Happens During the Assessment?

Most people find it easier than they expected.

A conversation about your background

The psychologist will talk to you about school, work, your health and your daily life. This helps them understand your starting point. It feels more like a chat than a test. It does count as evidence, though, so answer as honestly as you can.

Structured tasks

You will be asked to do some set tasks. You might repeat numbers back, or try to remember short lists. Some tasks use pictures or patterns. Others ask you questions about words.

There is no pass mark. Nobody expects you to get everything right. The tasks are made so that most people find some of them hard.

A written report

The psychologist writes one report. It says what they found and what they suggest. Usually it will cover how you learn best, and what makes information easier for you to follow. It will also say what help you need to take part.

If they were asked about capacity, they put their answer in the same report.

The report goes to the court. It is also shared with the other people in your case. That normally means social services, the children’s guardian and your own solicitor. Your solicitor will go through it with you. If you think something in it is wrong, tell them.

What Support Can the Court Put in Place?

If the report says you would benefit from help, the court can order it. These orders are called participation directions. They come from Part 3A of the Family Procedure Rules 2010. This says the court must think about whether someone needs extra support. It must also think about how that person can take part and give evidence.

Changes to how the case is run

Most of the time, small changes are enough. This is the most common kind of help. The court can ask everyone to:

• use plain words instead of legal terms
• keep questions short
• take regular breaks
• give you more time to answer
• put things in writing for you
• agree in advance how you will be questioned

That last one happens at a hearing called a ground rules hearing. It takes place before you give evidence, so everyone knows the rules ahead of time.

Barristers and solicitors are expected to know how to do this. There is a set of guides called the Advocate’s Gateway which tells them how to talk to people who find court hard.

An intermediary

An intermediary is someone who helps with communication. They help you understand what is being said in court, and they help other people understand you. If you give evidence, they can sit with you while you do it.

You will not get an intermediary just because the report says you should have one. Only the judge can decide that.

The judge will want to know why simpler help would not work for you. Simpler help means things like plain words, short questions and regular breaks. The judge will also look at each part of the case on its own. You might get an intermediary for one part and not for the rest.

This comes from guidance issued by the President of the Family Division in January 2025. The Court of Appeal also looked at it in a case called Re M (A Child: Intermediaries) later that year.

A lay advocate

A lay advocate does a similar job to an intermediary. The court treats them in much the same way. Lay advocates are often used where language or culture makes it harder to follow what is going on.

What if You Are Found to Lack Capacity?

The report may say you are not able to run your own case. If so, the rules call you a protected party.

This does not mean you lose your voice.

It means someone is chosen to make decisions about how the case is run for you. That person is called a litigation friend. It might be a family member. It might be another suitable person. If there is nobody suitable, the Official Solicitor can be asked to do it.

Your solicitor still represents you. You are still involved. What you want still matters, and it is still put to the court.

Capacity can also change. If things get better for you during the case, the position can be looked at again.

Does the Assessment Affect Whether My Children Come Home?

This is the question most parents want answered, so here is a clear answer. A cognitive and capacity assessment does not decide where your children live. It is not a test of your parenting.

Lots of parents with learning difficulties or memory problems look after their children well. What matters to the court is whether your children are safe and whether their needs are being met. That is looked at in a different assessment, called a parenting assessment.

The cognitive and capacity report often helps at that stage. It tells the social worker how to explain things in a way that works for you. It also shows what help you might need to make changes.

Frequently Asked Questions

Do I have to agree to the assessment?

Nobody can force you to take part. But if you say no, the court may make up its own mind without that information. Talk to your solicitor before you decide. In most cases the assessment helps you.

Who pays for it?

You may be a parent with parental responsibility, and social services may have asked the court for a care or supervision order. If so, you get legal aid for that case. You do not have to pass a money test to get it.

The cost of the expert is usually split between everyone in the case. Your solicitor will apply for funding for your share. Ask them to check the position in your case.

How long does it take?

The appointment usually takes two to four hours. Sometimes it is split over more than one day. The report normally comes a few weeks later. The court sets a deadline when it makes the order.

Can I bring someone with me?

Ask first. Some psychologists are happy for someone to come in with you at the start. You usually do the set tasks on your own, so that the results are fair.

Will the result be held against me?

The assessment is there to make things fairer for you. It is not there to catch you out. It stops people assuming you have understood something when you have not.

Need Support Through Care Proceedings?

Being asked to take part in an assessment can feel worrying. You do not have to go through it on your own.

Our family and childcare law team works with parents and carers across England. Many of them need extra help to take part in their case. We will explain what is happening in plain words and make sure your voice is heard.

Get in touch to speak to a member of our team.

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This guide is general information about the law in England and Wales. It is not legal advice about your own situation. It reflects the position as at August 2026.

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All advice is correct at time of publication.

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