For many men that stumble at the threshold are well foretold that danger lurks within

The following is the revised entry on Threshold from our Family Law A to Z, but I thought it would make an interesting blog post in its own right.

 

The threshold is the point at which the neglect or ill-treatment of a child justifies the mandatory intervention of the state.

Ideally social services should provide parents with the support necessary to enable them to provide care for their children at home.  Section 22C of the Children act 1989 specifies that a local authority should first attempt to ensure that a child stays with his parents, then with a person who has parental responsibility for him, or with a person who has a child arrangements order naming him as a person with whom the child is to live.  If that is not possible they are obliged to find a home with a relative, a friend or finally another person who is also a local authority foster parent.  If none of these is possible they must find him accommodation in a children’s home.

Social services are also under a statutory obligation when making a decision to consider the wishes of the child and of his parents; Section 22(4) CA1989 stipulates that before making any decision with respect to a child a local authority (LA) shall, so far as is reasonably practicable, ascertain the wishes and feelings regarding the matter to be decided of the child, his parents, any person who is not his parent but who has parental responsibility for him, and any other person whose wishes and feelings the authority considers to be relevant.

Guidance on the principles and parameters of assessing the needs of individual children and organisational responsibilities for the safeguarding of children are to be found in Working Together to Safeguard Children, published by the Department for Education in 2013:

  1. Assessment must be carried out early in a case so that alternatives can be tried before engaging the child protection system. It must be undertaken by a lead professional who should provide support to the child and his family, act as their representative and co-ordinate the delivery of support services;
  2. Everything communicated to the family must be clear and consistent and confirmed in writing;
  3. Where the lead professional believes this early support cannot resolve concerns the case must be referred to the children’s department of the LA and a social worker will then take over. The LA must acknowledge receipt of the referral and confirm what action will be taken within one working day; the full assessment must then be completed within forty-five working days from the point of referral.

It is at this point that good intentions break down; the Children Act has been blamed for ending the system’s reliance on forensic evidence and replacing it with an erratic decision-making process enabled by broad, nebulous concepts such as ‘future harm’.  The quality of these decisions became even worse following the case of ‘Baby P’ in 2007.  Everyone in the system now goes along with these decisions because they fear being discredited if they resist, and there is thus little check on the process.  There is no evaluation of any harm social work might cause – by the forced night-time removal of children, for example – and no evidence it improves matters for children.  The impulse is to remove children from risk, with little thought of what will happen to them once in care.

The first test is to determine whether the child’s carers cannot be removed from the pool of potential perpetrators; the Court of Appeal had to decide on this issue in Re B and W [1999] 2 FLR 833 in which a baby had suffered serious shaking injury at the hands either of her parents or of her child-minder.  The LA made Section 31 applications to take both the parent’s baby and the child-minder’s ten-month-old child into care.

At the full care hearing the first instance judge could not find whether the injury had occurred while the baby was in the care of her parents or of the child-minder.  He dismissed the LA’s applications on the grounds that the threshold criteria had not been met.  Instead he made a Section 40 order placing both children in care pending the LA’s appeal.

The LA duly appealed and the Court allowed the appeal relating to the baby, but the appeal relating to the child-minder’s child was dismissed.  The Section 31(2) threshold criteria had been reached in respect of the baby and the harm suffered was attributable to the lack of proper care; the word ‘attributable’ did not require the Court to find that a specified individual was responsible for the harm caused, care was often shared by a number of adults.  Risk had been proved and the child should not be left at risk because it wasn’t clear which adult had failed in their duty of care.

In the case of the child-minder’s child there was no actual harm, so the criterion to be considered was the risk of future harm; because it could not be proved the child-minder had caused the baby’s injuries it could not be established that her child was certainly at risk of harm in the future.

The parents’ appeal against the care order (Lancashire County Council v B [2000] 1 FLR 583) was dismissed; the Court ruled that the phrase at Section 31(2)(b)(i), ‘the care given to the child’, could refer to the care given by any of the care givers where care was shared.  The parents could not be removed from the pool of potential perpetrators; this is now called a ‘Lancashire finding’ after this case.

For many years, parents have complained that LAs intervene before the threshold is crossed and that parents are therefore losing their children without justification.  One case was judged by James Orrell in a mere fifteen minutes; three children were taken into care on the flimsy grounds that a bruise on the ear of one of them could have been caused non-accidentally.  In the Appeal Court, Thorpe LJ exclaimed,

I am completely aghast at this case.  There is nothing more serious than a removal hearing, because the parents are so prejudiced in proceedings thereafter.  Once you have lost a child, it is very difficult to get a child back… There is a point where a judge’s brisk conduct of business in his search for protection of a child is just not acceptable.  This does not seem to me like acceptable process or natural justice.

In July 2013 the courts finally began to acknowledge and grapple with this issue in a series of Court of Appeal rulings.  A number of subsequent judgments have refined the approach which local authorities and judges must take.

An LA must prove, on a balance of probabilities, the facts on which it relies; must show that these facts amount to the child suffering, or being likely to suffer, significant harm; and must show that the proposed course of action is the only one possible, that ‘nothing else will do’.  The best interests of the child are paramount.

Failure to do this risks unacceptable social engineering: the Court has no mandate to improve on nature or secure that every child has a happy and fulfilled life; its single task is to be satisfied the threshold has been crossed.  The starting position must be Lord Templeman’s words in Re K D [1988] AC 806,

The best person to bring up a child is the natural parent.  It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.

Hedley J elaborated on this in Re L (Children) (Care Proceedings: Significant Harm) [2006] EWCA Civ 1282 in which he dismissed the LA’s application for a care order on the basis that the parents’ deficiencies had ‘subtle and ambiguous consequences’ for the children but could not amount to significant harm,

Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.  Children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it.  It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability.  These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting… It would be unwise to a degree to attempt an all embracing definition of significant harm.  One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.

In Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, Lady Justice Hale defined the fundamental justification for interference in family life,

[34] Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end.  Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.

If the parents dispute a matter of concern, then it is in issue and the onus is on the LA to adduce proper evidence and prove their allegation.  It is not enough merely for the LA to allege the parents do not accept the allegation made or give it sufficient standing.  If the Court is to find that the threshold has been crossed it must evaluate the evidence presented and make a finding-of-fact.  In Re P (A Child) [2013] EWCA Civ 963, Lady Justice Black emphasised,

[115] …Allegations which are denied are not facts.  If the local authority need to rely upon them as part of their case, they will have to produce the evidence to establish them.

The LA must demonstrate that the harm or likelihood of harm is the result of the care provided by the parents being less than it would be reasonable to expect from them.  The harm must be attributable to a lack, or likely lack, of reasonable parental care.  The Court should identify the respects in which parental care is falling short, or is likely to fall short, of what it would be reasonable to expect.

The LA’s evidence must include all the realistically possible options for the child with an analysis of the options for and against each option, and an assessment of the benefits and risk of harm involved in each option.  There must be evidence for the lack of any viable alternative option for the child other than adoption.  Too often this is missing; in a case which has received much attention, Re B-S (Children) [2013] EWCA Civ 1146, the President, Lord Justice Munby, declared,

[30] We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments.  This is nothing new.  But it is time to call a halt.

[40] This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

The LA must next prove the link between the facts (if proved) and its claim that the threshold has been crossed.  It must explain why the facts justify a conclusion that the child is suffering, or is at risk of suffering, significant harm.  Both local authorities and the lower courts have based past decisions on flimsy evidence and a lack of proper analysis.  In Re V (Children) [2013] EWCA Civ 913, Lady Justice Black said,

[88] …Very careful consideration has to be given to whether these children’s welfare required that the parents’ consent to adoption be dispensed with and whether adoption is necessary.  I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering.

Before they make an application for care or adoption the LA must show they have fully considered all other possible options for the child.  In Re S, K v The London Borough of Brent [2013] EWCA Civ 926, Ryder LJ lamented the frequent absence of justification,

[24] …The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available.  Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available.

In Re G (A Child) [2013] EWCA Civ 965, McFarlane LJ expressed the crux of the issue,

[49] In most child care cases a choice will fall to be made between two or more options.  The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

[50] The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.

[54] …What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.

The final requirement is that no other option than the one proposed by the LA will do; the European Court had warned in YC v United Kingdom [2012] 55 EHRR 967,

[134] Family ties may only be severed in very exceptional circumstances and… everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family.  It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.

In the influential Re B (A child) [2013] UKSC 33 in June 2013, Lady Justice Hale introduced the now common phrase ‘where nothing else will do’,

[198] …the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.  In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions.

In Re P (A Child) [2013] EWCA Civ 963 Lady Justice Black cited Hale,

[102] …Re B is a forceful reminder that such orders are “very extreme”, only made when “necessary” for the protection of the child’s interests, which means “when nothing else will do”, “when all else fails”.  The court “must never lose sight of the fact that [the child’s] interests include being brought up by her natural family, ideally her parents, or at least one of them” and adoption “should only be contemplated as a last resort”.

Finally, in September the President, Munby LJ, gave his thoughts in Re B-S (Children) [2013] EWCA Civ 1146,

[22] The language used in Re B is striking.  Different words and phrases are used, but the message is clear.  Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”.

Social workers reacted angrily and Munby was criticised for his remarks which seemed to be at odds with the Government’s pro-adoption agenda.  He responded in April 2014 that it is Parliament and not the Government which makes the law and judges who must interpret it.  In Re R (A Child) [2014] EWCA Civ 1625, he clarified that he had not changed the law and that adoption still sometimes remained the only sensible option.  The evangelical adoption ‘tzar’, Martin Narey, accused LAs of misinterpreting the judgments and issued an alarmist ‘myth-busting’ guide written by Janet Bazely QC which ignored the fact that some children who would formerly have been adopted by strangers were now benefiting from Kinship Care.  It is true that the law did not change, but the understanding of it did, and practice improved accordingly.

In Re A (A Child) [2015] EWFC 11, Munby had to repeat yet again the logical process a court must follow:

  1. Establish the facts upon evidence and not suspicion or speculation; if the parents refute an allegation it is not a question of them not admitting or acknowledging it: the matter is in issue and the LA must prove it;
  2. The LA must demonstrate a link between the facts and the conclusion that the child has suffered or is likely to suffer harm;
  3. Finally, the LA must resist natural temptation; Munby quoted Judge Jack in North East Lincolnshire Council v G & L [2014] EWCC B77,

[16] …the courts are not in the business of social engineering.  The courts are not in the business of providing children with perfect homes.

In Re J (A Child) [2015] EWCA Civ 222 in the Court of Appeal, McFarlane LJ reiterated the single criterion for removing a child,

[56(vi)] It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other.  The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established.  It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm.

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