CHAPTER ONE – THRESHOLD
Section 31 Children Act 1989
A court may only make a care 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:
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or
(ii) the child’s being beyond parental control.
(Children Act 1989 Section 31 (2))
There are two elements to the threshold criteria:
- the existence of, or the likelihood of, ‘significant harm’, and
- the cause of that harm being attributable to either
(a) care given or likely to be given by a parent or
(b) a child is beyond parental control
Suffering, or is likely to suffer, significant harm
‘Suffering’ or is ‘likely to suffer’ must be in the present or the future. The past is not enough[1];
‘Likely’ means ‘a real possibility’ [2], ‘a possibility that cannot be sensibly ignored having regard to the nature and gravity of the feared harm in the particular case[3];
‘Harm’ means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;
‘Development’ means physical, intellectual, emotional, social or behavioural development;
‘Health’ means physical or mental health;
‘Ill-treatment’ includes sexual abuse and forms of ill-treatment which are not physical.
(Children Act 1989 section 31 (9))
‘Significant harm’ means harm that is “considerable, noteworthy or important”[4]. It is for the court to decide on the facts of a case whether harm is ‘significant’.
The ‘harm’ must ‘be significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose’.[5]
Not all harm will be significant:
“Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it…’; … ‘it is not the province of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done”. Re L (Care: Threshold Criteria) [2007] 1 FLR 2050.
‘Harm’ can be cumulative to make it ‘significant harm’.
Reliance may be placed on information acquired since the relevant date as to the state of affairs that existed at the relevant date Re G (Care proceedings: Threshold Conditions) [2001] 2 FLR 1111. Hale LJ considered the types of information that may have come to light since a case began:
- Information discovered after the relevant date that provides evidence of the facts at the relevant date e.g. medical evidence about the injuries that prompted removal, new complaints by the child about other forms of abuse within the home, admissions by parents. These can emerge during expert assessments the case.
- New events occurring during the proceedings which may or may not be capable of proving there was a risk of significant harm at the relevant time “this raises more difficult questions because there are obvious dangers of retrospectively validating a concern which was not in fact justified at the time”.
- New events which introduce a completely different risk which did not exist at the relevant date.
Parental care
In assessing the standard of parental care, it is an objective test, and it includes acts as well as a failure to protect.[6]
The provision “not being what it would be reasonable to expect a parent to give” “is not to be regarded as an abstract or hypothetical test but must be evaluated by reference to the circumstances the parent is confronting i.e. what would it be reasonable to expect of a parent in these particular circumstances, recognising that in a challenging situation many of us may behave in a way which might not objectively be viewed as reasonable. The test is not to be construed in a vacuum nor applied judgementally by reference to some gold standard of parenting which few (if any) could achieve. On the contrary, it contemplates a range of behaviour, incorporating inevitable human frailty. The reasonableness of the care given requires to be evaluated strictly by reference to the particular circumstances and the individual child” Hayden, J Lancashire County Council v M, F, W and Lancashire Clinical Commissioning Group [2021] EWHC 2844 (Fam)
Beyond parental control
The fact of a child being beyond parental control is not capable on its own of satisfying the threshold criteria. Being beyond control must have caused significant harm or a risk of harm to the child.
There is limited case law when considering whether a child is beyond parental control as a threshold finding.
In Re P (Permission to Withdraw Care Proceedings) [2016] EWFC B2 HHJ Redgrave’s view at first instance (disagreeing with Re K below) was that in care proceedings where the local authority was pleading the threshold criteria was met on the grounds of the child being beyond parental control, there needs to be an evidential connection with the parents’ care.
In Re K (Post Adoption Placement Breakdown) [2012] EWHC 4148 (Fam) HHJ Bellamy sitting as a Deputy High Court Judge applied a Court of Appeal decision Re L (a minor) [1997] EWCA Civ 1268 and held that it is not necessary to prove parental fault to establish that a child is beyond parental control.
Re L considered the Guidance to the Children Act Volume 1 para 3.25 “… the second limb is that the child is beyond parental control …It provides for cases where, whatever the standard of care available, he is not benefitting from it because of lack of parental control. It is immaterial whether that is the fault of the parents or the child. Such behaviour frequently stems from distorted or stressed relationships between parent and child”.
This decision was approved in T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2017] EWFC B1. Recorder Howe QC stated “in my judgment it is immaterial whether a child is beyond parental control due to illness, impairment or any other reason. The court simply has to consider if, on the facts, the child is beyond the control of the parent or carer. If that condition is satisfied the court then has to determine if the child is suffering from or likely to suffer significant harm as a result of being beyond the control of the parent. If the answer to that 2nd question is ‘yes’ then section 31 (2) (b) (ii) are satisfied”.
Current case law is clear that there does not need to be parental culpability for a finding that a child is beyond parental control.
These cases often involve teenagers and/or adoption breakdown. In these very difficult cases where there is a need for an order on welfare grounds, it is unhelpful for either the child to feel responsible for the breakdown of the family or blame to be apportioned to the parents.
Interim threshold
Section 38 Children Act 1989 sets out the threshold for the court to make an interim care order or an interim supervision order.
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 the circumstances with respect to the child are as mentioned in section 31(2).
(Section 38 (2) Children Act 1989)
Interim threshold being met is not sufficient to permit interim removal of a child from parents. The court must find the child’s safety demands immediate separation.
Relevant date
The ‘relevant date’ for determining whether a child ‘is suffering’ significant harm is:
- at the time of the application for a care or supervision order; or
- at the time when the local authority initiated the procedure for the protection of the child concerned, provided those arrangements have been continuously in place until the time of the hearing.
Burden of proof
The burden of proof is on the local authority to establish the threshold criteria are met.
Standard of proof
The standard is the ordinary civil standard of the balance of probabilities. Described as a binary system, if a judge finds it more likely than not that something has taken place, it is treated as having occurred. If a judge does not find it more likely than not something occurred, it is treated as having not occurred.
The standard of proof is not affected by the seriousness of the allegation or the consequences.[7]
Threshold statement/ Threshold document
A ‘threshold statement’ is a written outline by the local authority of the facts which the local authority will seek to establish by evidence or concession to satisfy the threshold criteria. It should be limited to no more than 2 pages.[8]
Threshold documents should be compliant with the guidance in Re A (A Child) [2015] EWFC 11, essential reading for any care practitioner. The guidance in Re A was expressly approved by the Court of Appeal in Re J (A Child) [2015] EWCA Civ 222.
In Re A, Sir James Munby, the then President of the Family Division, reminded practitioners of 3 “fundamentally important” points:
- “the elementary proposition that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation” (Re A (A Child)(No 2) [2011] EWCA Civ 12, which carries two practical consequences:
- local authority must adduce proper evidence to establish what they seek to prove. Hearsay evidence is, of course, admissible in family proceedings. But “a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness box to deny it.”
- there needs to be a clear assertion. Schedules of findings sought often contain references to things that a parent “appears” to have done or that people have “reported” or “stated” or that there is “an allegation that…”. This form of allegation “is wrong and should never be used.”The relevant allegation is not that someone ‘appears’ to have done something, it is that he ‘did’ it.
- link the facts relied upon by the local authority in its threshold with the conclusion that the child has suffered or is at risk of suffering a particular type of harm.
- “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent” (Re L (Care: Threshold Criteria) [2007] 1 FLR 2050).
As Baroness Hale said in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33:
“We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours, which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse antisocial political or religious beliefs.”
Practice points
- Look with a more critical eye at the allegations, particularly where the care plan is one for adoption.
- Are they clear in relation to the allegation itself?
- Is it clear what is alleged has caused significant harm?
- Is it specific about what significant harm has been suffered or is likely to suffer?
- Does it establish the causal link between the stated fact and the allegation of harm?
- Is there primary evidence, not suspicion or speculation?
A concession from a parent should never obviate the need for a proven factual basis.
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[1] Re S & HS (Children) [2018] EWCA 1282
[2] Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563
[3] Re B (Care proceedings: appeal) [2013] 2 FLR 1075
[4] Humberside CC v B [1993] 1 FLR 247
[5] Re MA (Care Threshold) [2009] EWCA Civ 853
[6] Re A (Children) (Interim Care order) [2001] 3 FCR 402
[7] Re BR (Proof of Facts) [2015] EWFC 41
[8] Family Procedure Rules 2010, PD12A para 7.1