CHAPTER ONE – WHAT IS THRESHOLD?
The threshold test or ‘threshold’ is central to all care proceedings. Whether or not this test is established can make or break a local authority’s case and substantially impact the options available to the court. Yet the importance of threshold is often overlooked in the course of proceedings and is frequently more complex than it first appears.
This book will consider the elements of threshold in detail and the evidence that can be relied on in support of threshold. The book is not intended to cover all the cases that have been decided about threshold but instead will focus on the key decisions that have been made in order to fully explain each threshold element. This book will also set out ten practical tips to bear in mind when drafting or responding to threshold. The final chapter of this book will summarise the preceding chapters, including a list of cases cited within each chapter.
By way of introduction, this chapter will provide a brief overview of what is meant by the term ‘threshold’ within care proceedings. To illustrate this, this chapter will break down threshold into its different elements, which will be explored in more detail in the rest of the book. Additionally, this chapter will explore the difference between the final threshold and the interim threshold as well as the distinction between threshold and the welfare stage of care proceedings. Lastly, this chapter will consider the ability of the local authority to withdraw proceedings when threshold is not met and the court’s role in this process.
The Threshold Test
Within care proceedings, if the local authority seek a final public law order, such as a supervision order or a care order in respect of a child, they must first satisfy the court that the test set out in section 31(2) of the Children Act 1989 is met.
This section states:
31(2) A court may only make a care order or supervision order if it is satisfied –
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to –
(ii) the child’s being beyond parental control.
This test is referred to as ‘threshold’ and threshold is said to be crossed once the local authority have satisfied the court that this test is met. This test essentially requires the court to be satisfied that;
The child is suffering or is likely to suffer harm (risk of future harm is considered further in Chapter 6)
The harm is significant (considered further in Chapter 5)
The harm or likelihood of harm is caused either by the care given to the child or the child being beyond parental control (Causation is considered further in Chapter 7, beyond parental control in Chapter 8 and the care given to the child in chapter 9)
Where the harm is caused by the care given to the child, the care given to the child must fall below or outside of the type and standard of care that it would be reasonable to expect a parent to give to the child (what is reasonable care is considered further in Chapter 10).
The local authority must satisfy the court that the child is suffering or likely to suffer significant harm at the relevant date. This is generally the date when the care proceedings were issued, though exceptions will be considered further in Chapter 4: Relevant Date. The burden of proving that threshold is crossed rests on the local authority. As per Lord Lloyd of Berwick in Re H  UKHL 161, the word ‘satisfied’ is a neutral word, simply meaning ‘to make up its mind’. It does not impose any particular burden of proof on the court. However, in order to satisfy the court that this test is met, the local authority will need to seek particular findings and this will be considered further in Chapter 2: Findings.
As care practitioners will be aware, crossing threshold does not mean that a care or supervision order will be made. The court must go on to consider where the child should live and what order, if any, is in the child’s best interests. This is known as the welfare stage and is beyond the scope of this book. However, it is important to bear in mind that the decisions the courts have taken in relation to threshold have been made knowing there is a further safeguard for parents before any order is made.
While the majority of the case law in this book will focus on threshold at the end of proceedings (‘the final threshold’), it is important not to overlook the interim threshold. The interim threshold must be crossed in order for the court to make interim public law orders and proceedings may be dismissed if the interim threshold is not met. The test for the interim threshold is contained in s38(2) of the Children Act 1989, which is set out below:
“A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2).”
In contrast to the final threshold, the court does not have to be satisfied that the test under s31(2) of the Children Act 1989, set out above, is met. At this stage, the court only needs to have reasonable grounds to believe that the child is suffering or likely to suffer significant harm, attributable to one of the grounds set out in s31(2)(b). This acknowledges the fact that, at this stage, the local authority may need time to investigate their concerns and gather evidence before the final hearing. However, despite the lower threshold test, there is protection for parents when the court goes on to consider whether any interim orders should be made and if the children should be separated from their parents. It is these questions, rather than the interim threshold test, that are the focus of the majority of the case law surrounding interim orders. These questions form part of the welfare stage and, as such, are beyond the scope of this book.
If the local authority, having issued care proceedings, then determines that it is in the children’s best interests to withdraw their application for public law orders, they will need permission from the court to do this. As set out by Hedley J at paragraph 36 of his judgment in the case of K and Ors (Children)  EWHC 4031 (Fam)2, the court must first determine whether they still need to hear evidence on whether threshold is met. If this is not needed, the court will consider whether, without hearing evidence, the court can conclude that it is unlikely that threshold will be met. If the answer is yes, then the local authority should be allowed to withdraw proceedings. If not, the court will need to consider whether withdrawing the proceedings is in the children’s best interests.
This chapter has provided an overview of what is meant by the term ‘threshold’ and the statutory test for threshold. The chapter has considered the essential elements of threshold, interim threshold, the welfare stage and withdrawal of proceedings. The following chapter considers threshold findings, in particular how these findings are relied on to establish threshold and the court’s role in determining which findings are necessary.