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Category Archives: threshold criteria

composite threshold – a living example


I wrote about the difficulties of composite thresholds here  particularly where a document is produced that sets out what everyone says but doesn’t end up with clarity as the precise way that threshold is said to be met.


This judgment by Her Honour Judge Owens  OCC v B and T 2015 is a really good example of that.

Particularly since the Judge includes a suitably anonymised version of the threshold at the end of the judgment. I commend that, I think it makes far more sense when considering what decisions was made by a Court to see the factual background set out.  I really like it.

The version provided is a composite document, set out in tablular form (and again, I like the way that this is produced, it is really helpful in terms of seeing what the allegation is, where the evidence is for it and what the parents say).


But it is a composite document. It doesn’t end up by setting out the findings that the Court was either making by agreement or was asked to adjudicate upon. So it isn’t a final threshold.

And then, there’s this bit in the judgment itself

Threshold is no longer in issue in this case. A composite threshold document has been agreed and the Local Authority accepts that the concessions recorded in that document are sufficient for threshold purposes. They do not therefore seek findings in relation to the issues not accepted on that document and I adopt that threshold document as my threshold findings in this case and make no findings in relation to items 1 (e), 3(a) and (b) on that schedule. A copy of that schedule, suitably redacted in relation to the identities of the parties, is appended to this Judgement


All very sensible and practical – the LA deciding not to push for additional findings where there is agreement and the concessions are sufficient.

However, when I look at the composite document, I see that whilst mother accepts all of the matters that remain (3 a) and (3b) were the only bits that she disputed, father was disputing just about EVERYTHING.  And the LA were accepting that they did not seek any findings in relation to matters that were disputed, so effectively all of those matters are just crossed out of the threshold.

Here is what father actually concedes, in totality


1(b) I accept arguing which can be seen as verbally abusive but not aggressive.  [Really hard to see in the light of Re A and Re J – and even before then, that this amounts to threshold]

1(c) The mother made allegations of domestic abuse against father but then withdrew them.   [Well, that’s not threshold unless the assertion is that the allegations were true OR that the making of false allegations caused emotional harm to the child, neither of which are asserted]

1(d) Both parents sent abusive text messages and Facebook messages to each other

2 The father had an argument with the Health Visitor because she came to the home for an important meeting without a sign language intepreter  (again, that’s not threshold)

4. The father accepts that he had some convictions, the most recent of which was ten years ago.


5. The father accepts that his other children were placed on the Child Protection Register but disputes that this was the right decision.


As we’ve previously discussed, it is possible that on a line by line basis, each individual allegation in and of itself would not amount to threshold, but that taken as a totality, it would. But that’s also not the case here. [Given that para 5 as drafted by the LA contains reference to his two older children being adopted, the Court could have been asked to find that the threshold relied upon and found in those proceedings was sufficient to establish a risk of harm from father, depending upon what was in it and how historical it was, but that didn’t happen]


Given what the Judge says about threshold  – LA don’t invite Court to make findings on any matters in dispute and that those matters which are accepted are how threshold is established, then those are the only concessions that are agreed by both parents.  The Local Authority could have invited the Court to find that the threshold was met on the basis of the mother’s concessions, and the Judge would then have had to rule on the matters that father disputed, but that’s not what happened. The LA invited the Court to make a finding that threshold was met on the basis of father’s concessions.

Now, just imagine for a moment, drafting a threshold that contains only those matters set out above. As a stand alone document, saying that this is why the children are at risk of significant harm.  It appears to me that this would be very short of threshold.


[There are 3 matters that relate chiefly to mother that father does not dispute, so we could add those in. She wasn’t always honest with professionals, she went to a refuge and then went back to father, and refused to go into a refuge just before the Court proceedings were issued.  IF the Court established that father was domestically violent, then those are matters which could add to the threshold, but there isn’t such a finding.  On the threshold that the case has ended up with, the very high point of the findings made is that harsh words were exchanged between mother and father (both verbally and via text messages/facebook) ]


I’ll be clear,

(a) The allegations set out by the Local Authority in their original document (the first two columns of the composite document) were more than capable of meeting threshold

(b) From reading the judgment, I would be confident that most, and perhaps all of them, would have been found had the LA pushed for this – the evidence was there to do so

(c) I’m fairly sure that all involved were approaching the case on the basis that it was not in dispute that there had been DV between father and mother and that he posed a risk to the children

(d) But actually there was. Father’s response to threshold disputed this. And that became a live issue as to whether his admissions were sufficient or whether the Court needed to deal with the disputed issues on threshold

(e) In my opinion, the actual concessions made and accepted, are way short of threshold  (particularly threshold for deciding that the children should be permanently separated from their mother – whilst there is only one section 31 threshold criteria it is plain from the Supreme Court in Re B that the Court’s final orders have to be proportionate to the harm suffered or a risk of being suffered.  )


I think there was ample evidence for the Court to find that father was a risk to the children and that mother had been subjected to domestic violence and had not been able to protect. And reading the totality of the judgment, I think that’s the basis on which the Court approached the case. Additionally, there were three significant  findings made which could properly go into a finalised threshold, and given that the Judge set these out in passages of her judgment that were explictly considering ‘risk of harm’ I would legitimately be putting them into a final threshold document.  BUT that would have been dependent on the Judge’s paragraph about threshold adding ‘and the specific matters that I found in my judgment in relation to risks of harm to the children’ or something similar.


  If they return to the care of their mother, however, I find that the likelihood is that this placement would breakdown due to her inability to apply the required parenting skills to a good enough standard

I find and the only conclusion I can draw is that she is simply not capable of working openly and honestly with the local authority in the best interests of her children.

The stakes are therefore very high indeed for them and the risk of them suffering further disruption and emotional harm is, as I have found, high


The Judge also makes comment that mother failed to understand the risk that father poses (and that’s very important, but it is equally important to remember that the Court hasn’t actually made findings about the level of risk father poses, and the adverse findings against him relate to mutual exchanges of harsh words between him and mother. )


There is also reference to what was probably the most important incident

On the 9th December 2014 RB moved to a place of safety following an alleged assault on her by ST on 8th December 2014. This assault was witnessed by a member of the public and ST was arrested. The Police records of this assault are at F110-112 and F129 – 144 and I have also seen the DVD recordings of ST’s Police interview and RB’s statement to the Police about this incident.


Although that is in the LA threshold document, at 1(d),  it is disputed by the father, and because of the formulation of words in the judgment about threshold (which I’ll repeat here) it is NOT a finding made. The Judge had done sufficient to make a decision about that allegation, and would probably have made the finding if asked, but was not in fact asked to do so.


Threshold is no longer in issue in this case. A composite threshold document has been agreed and the Local Authority accepts that the concessions recorded in that document are sufficient for threshold purposes. They do not therefore seek findings in relation to the issues not accepted on that document and I adopt that threshold document as my threshold findings in this case and make no findings in relation to items 1 (e), 3(a) and (b) on that schedule.


It is really obvious that the Court is proceeding throughout on the basis that it is established that father is a risk to the children and indeed to the mother.

BUT the threshold findings that were actually made by the Court were astonishingly low – far lower than I suspect anyone involved really grasped. And if there had been a second threshold document, one that went beyond just setting out a Scott Schedule  (we say,she says, he says) and into just setting out the precise allegations that were actually agreed i.e a final threshold, looking at that on a piece of paper would have made it clear that the concessions given were not sufficient to cross threshold and that the Judge would have to be invited to make findings.

IF this father were to be involved in future Court proceedings, someone picking up this judgment might consider that the Court had made findings that he posed a risk to his children and that he had been domestically violent to the mother   (and I’m sure that’s what those involved thought had happened) BUT as a matter of law, the findings against dad that were made were only those things that he admitted to – which amount to an exchange of harsh words with mother and an argument with a Health Visitor.  Would the actual findings that were made by this Court be sufficient to establish a likelihood of harm with future children?


I don’t mean to be critical of anyone involved – this is just an illustration of how a composite style threshold can pose a problem. Had a second document that sets out, taking into account just those matters that were accepted, it would have been really plain that the LA needed to go above and beyond just the accepted matters and into asking the Court to make findings on the central issue (was father domestically violent towards the mother and was he a risk to the children?).   I am sure that all involved took those matters as a given – I’m sure that if father had been fighting the allegations he would not have succeeded, but the approach that the concessions themselves were sufficient to meet the threshold doesn’t seem to stack up when you look at it with fresh eyes.


There’s a lot of other stuff to praise in this judgment, it is just a shame about that one element.





Smokey and the Bandit – “boy adopted due to smoky house”


This story appeared in the Guardian yesterday.  Two year old boy from smoky house to be placed for adoption.


It relates to a case decided by a Circuit Judge (in Hull)- so the case is not binding authority for later cases*, but it is still of public interest.  (* the reason it is not binding is because it was decided by a Circuit Judge, not because it was decided in Hull)

Re AB 2015


The author of the Guardian story had clearly read the judgment, and read it carefully, because it draws out all of the many, many references to the smoky atmostphere in the house being a concern. This is a continuing theme throughout the judgment.

  the most graphic testimony came from health visitor Julie Allen, who told the judge that the family’s living room was “so smoke entrenched that I had difficulty breathing”.

“On entering the living room Allen described being able to see a visible cloud of smoke surrounding the father and [the boy],” said the judge. “[The boy] was asleep on the sofa and had been unwell for some time by this point.

“Ms Allen described the room as ‘so smoke-entrenched that I had difficulty breathing’. She immediately expressed concern to the parents as to the impact of such smoke on [the boy], who had already been prescribed an inhaler within the previous month to help his breathing.


That’s obviously the public interest debate, because it raises a spectre that a parent doing something lawful (smoking) can find themselves in care proceedings, and could ultimately find the child being adopted. If that was right, it would obviously worry people, and be thin end of the wedge material.

Remember that in establishing threshold, one has to not only show that X event happened and that the child suffered significant harm as a result (or is likely to) but that X is a type of behaviour that one wouldn’t expect from a reasonable parent or care that it would not be reasonable to expect a parent to provide for him.


Of course, reasonable is always a difficult concept. It ties into the Illusory Superiority concept – just as everyone considers that they are above average (in terms of intelligence, sense of humour, looks, driving ability), everyone considers that THEY are reasonable, and they assess other people’s behaviour as reasonable or unreasonable based on their own standards.

A non-smoker, or anti-smoker might hold that no reasonable parent would smoke within the same building as their child. Someone who smokes twenty a day might hold that a reasonable parent would smoke, but try not to blow smoke into the child’s face.  Someone else might think that a reasonable parent would try to smoke in a different room to the child, and so on.  What consitutes reasonable parenting is a really subjective issue.  (And it may well be part of the problem of care proceedings, since a social worker assessing reasonable parenting does so from the mindset of  (a) someone who was concerned enough about children to go into a profession aimed at safeguarding their welfare (b) has a degree and (c) is working in a culture where protection of children is the paramount concern)

I personally would prefer that a parent smoked outside, but I wouldn’t consider it unreasonable if they decided to smoke in their own home, or to give up entirely and insist that no visitors to their home smoked whilst there. I have a pretty broad spectrum of what is reasonable in terms of smoking near children. I know others who would have a much narrower band of what’s okay and what is unreasonable.


{My experience may be coloured by the fact that (a) I was able as a child to go to my ice cream van and buy cigarettes for my grandmother, something you can’t imagine today and that (b) when I was about twelve, our sweet shop sold a product called Skoal Bandits – sachets of tobacco that you would put in your mouth and suck, till they were banned  – I see that you can still buy them in America and other places and I suppose (c) that I began my childhood smoking on cigars, so I never ended up becoming a regular smoker}


"Smokey and the Bandit Two - Smokey IS the Bandit!"

“Smokey and the Bandit Two – Smokey IS the Bandit!”

When looking at smoking, and a smoky atmosphere, I would argue that it would need to be a very very high level of smoking to amount to threshold – since smoking, even heavy smoking in your own home is a type of behaviour that some parents would think was abhorrent and some would think was normal. It would be hard, I think,  to categorise even a sixty-a-day habit as behaviour that would amount to threshold.   (There might be exceptions – for example, if your child has a lung disease and has to breathe with the assistance of an oxygen tank, or suffers with life-threatening asthma attacks then a reasonable parent would take steps to prevent him being exposed to smoke)


So if the smoky house was the sole, or main reason for the decision, the decision would be very questionable and probably wrong.  We need to see if that WAS the sole, or main reason.


The Guardian piece does say several times that smoking was one of a number of concerns, and touches on some of the others during the article.

To provide some of that context, the Judge sets them all out as bullet points

  • potential drug paraphernalia observed at the parents property on 2 occasions
  • Mother failing to engage with DVAP and the freedom programme
  • the lack of involvement of the father in AB’s care
  • outstanding therapy for the father
  • concerns re the father’s mental health
  • parents responding aggressively/defensively to challenge
  • a decline in the parents engagement with agencies whose role was to support them in their care of AB
  • the amount of smoke in the home of the parents and AB
  • risks within the household including objects left in AB’s reach and electric wires being within his reach
  • dirty, smelly and unhygienic home conditions
  • the parents and AB presenting as dirty and with an unpleasant odour
  • father testing positive for cocaine in October 2014 and subsequently failing to fully engage with hair strand testing


So it is certainly true that the smoky atmosphere was part of the Local Authority case, but there were other matters – probably the most serious one being the use of drugs.


The Guardian piece doesn’t cover this much, but actually the electrical wires were put as a high concern by the Health Visitor

A further risk that Ms Allen documents is the issue of trailing wires which she described as being a strangulations risk, running across the room directly over AB’s toybox. It was put to her in cross-examination that she was perhaps exaggerating in describing this as a strangulation risk but she was very clear on this point. She showed clear frustration and exasperation as to why the parents did not address and rectify this issue, describing that it took them some 8 weeks to remove this risk. She described how they were clearly capable of addressing risks when they were identified as they had dealt with a similar concern in their previous home. She described that all it would have taken to make the wires safe was to buy some inexpensive tacks to secure the wires to the wall.


That’s one of those common bugbears. Yes, wires running over  over a child’s toybox have a strangulation risk, but what effort is made to quantify that risk?  Risk isn’t binary – something is either completely safe, or there’s a risk that X could happen which is not worth taking.  Human beings take risks every day. Every time they cross a road, or put food in their mouths, there’s a risk that this activity could lead to serious injury or death. But we weigh up that the risks are very very small, and the consequences of trying to lead a risk free life (by avoiding say, the risk of choking on some food, by not eating, or liquidising all your meals in a blender) are more problematic than taking a slight risk.

I’ve no doubt that seeing electrical wires dangling over a toybox doesn’t feel nice, that you’d feel much more comfortable if it was fixed and it seems a small thing to ask, but when you describe it as a strangulation risk without quantifying that the risk there is very very small, for me, it is over-stated.  For example, if I let a pet python sleep in a baby’s cot, that is a strangulation risk, and one that most people would think was more risky than overhead wires.  You lose sense of risk and risk management if you describe both the wires and the python scenarios as ‘risk of strangulation’

[It is a not unreasonable point to respond by saying ‘it would be very easy and relatively painless to remove that small risk entirely, so why not do it in this case?’ ]


A lot of the evidence about home conditions was contested and challenged, so the Judge had to reach conclusions.


  1. I find that I prefer the evidence of the health visitor, Julie Allen and the support workers, Emma green and Janine Potts in terms of their observations of the home conditions and I find that the recordings of Laura Gill provide further corroboration of these matters. I find that the home conditions were sometimes extremely dirty, unhygienic, and placed AB at risk of exposure to germs and contracting illness. I further find that he was at risk of sustaining serious injury or possible strangulation through clutter in the home and the failure to deal with unsecured wires. AB himself was exposed to these conditions and his personal care was sometimes inadequate with him being dirty and on occasions smelling of smoke. I find that there were numerous occasion when AB was exposed to excessive levels of smoke in the home that will have had an impact on his health and wellbeing.
  2. I find that his weight plateaued when he returned to the care of his parents and that he dropped by one centile on the growth charts. I find that his diarrhoea and general unwellness is likely to have been impacted on by the lack of cleanliness and unhygienic home conditions. When a child is suffering as AB was and there are simultaneous concerns about his lack of weight gain, the advice of the health visitor to maintain hygienic and clean home conditions should have been prioritised.
  3. As a general observation, I find that the parents do not accept or follow advice if they do not agree with the advice (both parents disputing the strangulation risk identified by Julie Allen and the risk from cigarette smoke identified by several professionals).
  4. I also find that the parents failed to engage fully with the support services that were available and provided for them, in particular the family links programme, the safety workshops, the children’s play sessions and freedom programme for the mother. I am afraid that whilst I accept that these parents had a lot going on, these courses and programmes were important and needed to be prioritised, if the mother was to attend, the father had a responsibility to ensure that she was supported and encouraged by him in attending. Even if he was working long hours, he needed to be staying on top of the housework when he returned if the mother had been unable to attend to it during the day. This plan for AB to be cared for by his parents needed these parents to work together and support each other to ensure that AB’s needs were fully met.
  5. I find that the father struggles in managing his levels of anxiety and that sometimes this can manifest itself in him presenting as aggressive or confrontational, as recorded by the health visitor and the social worker. Whilst I am pleased that the father is now receiving some appropriative assistance with this, it is clear that this is at an early stage of what will be a long therapeutic process. I also find that as a way of managing stress the father has reverted to illicit drug use on at least one occasion and I find that this is an ongoing risk for the future. I find that the communication between the parents was extremely poor with the mother not knowing about the father’s heightened stress levels and the fact that he reports he was reducing his anti anxiety medication (I cannot understand why he would be doing that just after AB had been removed from his care) and the father not knowing that the mother was failing to attend the courses and groups that were expected of her.
  6. When considering the evidence in relation to the care that AB has received and is likely to receive, I have found it helpful to consider in some detail the documents from the care proceedings and in particular the assessments. I also find that is of real significance that the parents, having achieved their aim of a plan for AB to be placed in their care, were then unable to motivate themselves sufficiently to ensure that the home conditions were suitable for him to be placed. The standard that was needed was simply good enough, I would have thought it would not have been too much of a sacrifice for the parents to stop smoking (or at least to stop smoking in the home) and to ensure that the home was clean and tidy. In addition, I accept that the parents delay in seeking the courses that had been recommended and were to some extent part of the plan for AB to be placed in their care, demonstrates a lack of organisational skills and lack of commitment. Following the court approving a plan for AB to be cared for by his parents, I would have expected the parents’ commitment and motivation to be at its very highest.


The Judge had to analyse both harm, and whether the parents were able to meet the child’s needs to a ‘good enough’ standard, and if not whether they could be supported to do so.

  1. Has he suffered harm? I am afraid that I find that he has. Those changes in placement will themselves have been harmful and I think it will have been harmful to him that his return to his parents care was delayed by 4 months, a significant contributory factor to that delay was the parents’ lack of action and motivation. In addition he has been placed at real risk of injury to his health and wellbeing by his exposure to hazards in the home, lack of appropriate supervision and unsuitable and dirty living conditions. The impact on a child’s self esteem as they get older of being dirty and smelly should not be underestimated. They can be isolated from their peers and struggle to form friendships.
  2. The father still has some issues with managing his moods and with a risk of reverting to illicit drug use when he is under stress. The mother on her own, without significant support from the father cannot consistently meet AB’s needs. Dr Parsons found that and there is no evidence that this has changed since his assessment. Therefore the father’s difficulties are all the more significant. He has not been able to compensate for the mother’s own limitations and indeed some of the recent issues in relation to his mental health and anger issues and drug use actually heighten the risks. I do not accept that the issue is as simple as him now being available as he in no longer working.
  3. Are the parents capable of meeting his needs? Yes they are. At times it is clear that they are able to recognise and prioritise his needs. They have shown that they can maintain a clean and suitable home; they can show commitment to AB by attendance at contact and consistent care within contact. However, I must consider the evidence in relation to their actual care of AB when he was living with them and was due to be living with them. Sadly, I find that this fell well below the level that I would say is good enough. I really don’t know why this was.
  4. The parents are entitled to support in their parenting. Having considered the evidence of all parties I consider that the level of support offered to the parents was extremely high (indeed the mother reported the support worker visiting “every day”). Not all of the support that was available was taken up. Given the significant concerns that then arose, it is apparent that support from the LA or other services unable to redress the parents’ difficulties in meeting AB’s needs. It is hard to see what other or further services could have been offered. The level of support offered through Janine Potts visiting all day and every day is simply unsustainable in the longer term and ceases to be “support” and instead becomes substituted parenting.
  5. I think that the mother is right when she recognises that some of the problems that the couple experienced were due to immaturity. This couple needs to be able to care for themselves and maintain an appropriate home, manage their finances and address the issues in their relationship in respect of communication and The father needs to be much further on with this therapeutic work before they would be in a position to take on the care of a dependant child. In my view they still have some way to go with this.
  6. I am afraid that all of these matters lead me to an unavoidable and difficult conclusion that the risks to AB in being placed once again with his parents are far too high. The parents have given me no confidence in their written or oral evidence that they have sufficient understanding and awareness in relation to the processionals concerns to ensure that such concerns would not arise again in the future. Adoption really is the only option now available to AB, in my view, nothing else will do. I therefore refuse the parents application for discharge of the care order and make a placement order authorities n the LA to place AB for adoption.
  7. I want AB to know that in my judgement his parents loved him very much and tried very hard but due to their own difficulties and difficult backgrounds, they were simply not able to meet his needs.



This is a difficult one – it isn’t the most overwhelming case for adoption that I’ve seen, but the Judge does do what the Court of Appeal have commanded – to grapple with the issues and weigh up both sides of the argument, and the Judge makes conclusions. I don’t think that it is a judgment that is vulnerable to appeal (which is not to say that the Court of Appeal might view that differently if asked) but there are no obvious flaws in the decision making.

If the case had been solely on the basis of the smoking and smokey atmosphere, then I don’t think it would have had this result, and if it had, it would have been successfully appealed.  As part of the large number of issues, its evidential importance becomes less significant.


I think that there’s an argument or debate about whether too much emphasis appears in the judgment on the smoking, but looking at the analytical portion of the judgment (as opposed to the passages where the Judge is quoting what the witnesses said), I don’t think that the Judge puts particular emphasis on the smoking – it is mentioned, but not disproportionately so.

Does this bit of the findings go too far?

I find that there were numerous occasion when AB was exposed to excessive levels of smoke in the home that will have had an impact on his health and wellbeing.


He probably was exposed to excessive levels of smoke on the evidence. It is whether there was evidence that this exposure caused him harm, that might be more problematic. There is the evidence that the child had been prescribed an inhaler to help with his breathing a month earlier, so if the evidence before the Court was that the child had breathing difficulties, which would be causing him harm or discomfort, there could be a caustive link that the cigarette smoke, if excessive, was impacting adversely on his well being.  (In light of the President’s comments on Re A, I think that if there is to be a finding that the parents smoking caused him significant harm, the link needs to be very explicit)

Nor do I think that the report in the Guardian was misleading or distorted – its a very good summary of the case and certainly when you read the judgment, it is possible to see it being largely about smoking, too much so on first reading.  It was only when I read the analytical sections with close inspection that the case became more balanced than first appeared.


It is also worth noting that the Judge was critical of the Local Authority – when this case was first listed for final hearing,  it was only really in the mother’s evidence, that it became apparent that there were pfoessionals who had been frequently visiting the home for whom the Court had no records and no statements.The records were produced the next day. .  The parents wanted time to prepare their case and also wanted these witnesses to be called. In the event, those witnesses turned out to be key witnesses. The adjournment had to be granted. The Judge criticised the Local Authority for not having addressed their mind to the case that they were trying to prove and that these witnesses should have had statements prepared and served much earlier.

It was a shame that the Guardian (and the other advocates) had not grasped the significance that there was valuable evidence in the knowledge of potential witnesses who had not been called.  This case highlights that Guardians now very rarely read the primary evidence – the social work files and records, and are urged by CAFCASS not to do so – on the basis of ‘proportionate working’   (I’d sarcastically comment that where the order sought or contemplated is one that leads to adoption, that it would be proportionate for the independent representative of the child to look at the files, but that would be beneath me)


25. I queried whether the Guardian had considered the LA records and seen the significant involvement of these other workers. I was told that the guidance from Cafcass, in line with proportionate working, is that LA files will only be inspected if it is necessary. Sadly, in this case I think it was. I also made it clear to the LA that in my view the Presidents guidance, whilst helpfully sending out a clear message, is not new law. It is always for the LA to prove its case and it must do so on the best evidence available. It is unfortunate that no-one within the LA took a step back to assess what case it was trying to prove and what evidence there was to support such a case and then what witnesses could give that evidence. For example, a large plank of the LA case is that the home conditions were frequently dirty and cluttered and that the home was very smoky and smelly. Ms Tomblin had only visited on one occasion prior to AB’s removal and what she observed on that date whilst raising some issues, was not the picture that had been recorded by others of a home situation that was unsafe and unsuitable. Thought should have been given to what evidence she would actually be able to assist the court with and whether there were others who were able to give more direct evidence of the matters that the LA was seeking to prove.

  1. This became even more stark when I was told at the resumed hearing of this matter that the LA had actually obtained a statement from Emma Green who was heavily involved with the family at the relevant time and who’s evidence was highly relevant, but for some inexplicable reason this had not formed part of the bundle, nor had it been served on the other parties.
  2. I reminded all of the representatives, that I saw a collective responsibility between them to consider the evidence that it was proposed the court would be asked to consider and whether further evidence was needed, whether to support a party’s case or to enable an effective challenge and to alert the Judge to the fact that there may be evidential difficulties. Applications can be made on short notice and consideration could have been given to whether further witness evidence was necessary. It is disappointing that the parties have held a number of advocates meeting and as I have already said, the case has been listed for final hearing previously, yet these matters have never been raised. Nevertheless, the parents’ right to a fair trial undoubtedly required them to have the opportunity to see direct evidence and to have the ability to challenge such evidence. Inevitably therefore a further adjournment was necessary. I was also concerned that there should be no abuse of process and that the matter needed to be heard as soon as possible and therefore directed that the final hearing would be adjourned to commence afresh. I directed that the LA file evidence from those professionals who had been involved with the family during the rehabilitation period, specifically the Family Support workers and the Health Visitor. These documents have now been filed and all parties have had the chance to consider and respond to them. The parents have filed a further statement in which they perhaps go a little further in acknowledging some of the concerns.




Composite threshold documents – in which, a tightrope is walked


Two nightmares of legal blogging this week. The first was the McKenzie Friend case in which I had to write an account of the Court roasting a person for bad behaviour when that person was not just a name on a page but someone that was in my mind a real flesh and blood person.  And now this one, where the judgment is written by my local Designated Family Judge.

That’s something that I dread seeing, because it puts me in an ethical quandary. If I praise it to the skies, I’m a suck-up. If I take a red pen to it and dissect its flaws – well, I’m stupid but I’m not THAT stupid.  So if I see one, I hope that it has nothing of wider relevance and I can ignore it. That avoids the need for me to walk a tightrope.


Damn. This one does have some wider relevance. It says things that have been said before and emphasises them, but it also says some things that haven’t been said before and that have been worth saying.

Behold, Suesspicious Minds walks a tightrope, without a safety net. GASP as he wobbles. WONDER if he will plummet to his certain demise?  PUZZLE as to why he has thought up too late that he could have put at the start that this particular article was a Guest post…


Why am I going to walk the tightrope for this case?

Firstly, it is the DFJ identifying several flaws in practice and I know that many of my readers practice in Sussex and will come before this DFJ. Forewarned is forearmed, and actually many of these practice issues would, if fixed, make for smoother running of Court hearings. What the Judge has to say about practice issues is important to read.  The less time that the Court has to spend in a hearing on fixing practice issues, the more that everyone can concentrate on the child and the child’s future, and we all want that.


Secondly, the DFJ says things about composite threshold documents which have wider implications for practitioners in all parts of the country.  What the DFJ says about composite threshold documents is, in my opinion, very long overdue, and I can’t think of an authority which sets out just how problematic they have become.

So I’d recommend that all Sussex practitioners put this judgment high on their “to-read” pile, and I have little doubt that these issues are troubling other Judges across the country and that similar judgments will be following, so it should go on everyone’s “to-read” pile, which will for many of you involve getting a stepladder and sliding the authority in the ever-decreasing gap between the top of the pile and the aertexed ceiling of the office.  (Top tip – avoid starting the pile directly under a ceiling fan)


East Sussex County Council v BH and Others 2015


A quick note, for readers who aren’t lawyers. (Ah, how I envy you all).

The threshold document is a 2 page document prepared by the Local Authority setting out the harm that the child has suffered or is at risk of suffering and the allegations/facts that lead to that. The parents both respond to that, with the help of their lawyers. The Local Authority then prepare a final, or composite threshold document that sets out exactly what is agreed.

The problem is, and this isn’t a Sussex problem – I’ve seen it all over the county, and it has always irked me,  that often what you end up with is a “He said, she said” document, that doesn’t set out what the parties agree happened, so much as just squash the parents responses in next to the Local Authority allegation.


I’ll give you an example.  We are going to work on the basis of a single sentence within the LA threshold, and for illustrative purposes it is going to be  “The quick brown fox jumped over the lazy dog”

[Pedantic note – I originally used ‘jumps’ as in the typist sentence, but because the threshold is in the past tense, it made me wince every time, so I had to go back and change it. Also, because my father was a speed typist and taught me with the sentence  “The quick brown fox jumps over the lazy dog’s back”  to put a punctuation mark into the mix, I felt guilty for not using that version. ]

[That is NOT real threshold, before anyone rings the Daily Mail and claims that children are taken into care as a result of athletic foxes]


Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”


Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”


And the composite threshold document then becomes.


Paragraph 7.  The quick brown fox jumped over the lazy dog

Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”

Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”


Not only is that cumbersome and unwieldy, but it doesn’t actually tell you anything about what actually happened.  It could instead be put like this.


Paragraph 7.  Something happened. Nobody agrees what, but they all agree that something happened.

And you can end up with two pages of long-winded “Something happened. Nobody agrees what” as being apparently the factual basis on which the Court is invited to make final orders – serious final orders.

When a Judge comes to hear the case, and considers what the risk of a future episode of a lazy dog being jumped over by a fox might be, how on earth does that composite threshold help anyone?


This is a problem on two fronts. Firstly, there’s a tendency in responses to threshold to put in extraneous detail and mitigation, when that could be in a statement instead. If the response focussed on – is the allegation accepted in full, accepted in part or denied?  And if accepted in part, provide a form of words which would be acceptable to your client, we would avoid much of the superfluous detail that clouds the issues.  In this case – was there a dog, was there a fox, did the dog jump over the fox?

Secondly, there’s a failure by the person drafting the final composite threshold (that’s someone like me, and even though I hate it, I’m sure I’ve been guilty of it) to not be able to strip away all the superfluous detail and mitigation, to be able to get to the core of what form of wording would be agreed.


For example, here are three acceptable composite documents.


The quick brown fox jumped over the lazy dog   – this is accepted

The fox jumped over the dog and the dog showed no later ill-effects – this is accepted

The quick brown fox jumped over the lazy dog – this is denied by the parents and the Court is asked to make a finding


(and a fourth, which the allegation is disputed, and the Local Authority agree to remove it from the document.   There are some important issues about whether you’d go for option 3 or option 4 and whether a parents concessions are sufficient – I’ve written about it here


So, for parents lawyers, please please please stop your documents being pleas of mitigation, and hone in on the task of ‘is this agreed, partially agreed and here’s my form of words, or denied’ .  It’s a response to threshold, not a plea of mitigation.  And for me, and those like me – produce a final threshold document that actually sets out for the Judge (and those to read it in years to come), what the AGREED basis for the order is, and where there is not agreement, set out what finding is sought from the Court.


The Judge deals with this without the need for fox and dog imagery.


  • As frequently happens, a “composite threshold document” had been completed in a cut-and-paste fashion. By that I mean the document set out the evidence relied upon by the local authority, together with the responses and explanations of each parent in turn. However, whilst it was clear from the document that the threshold was met to the requisite standard, the replies when examined clearly revealed that a number of facts relied upon were not accepted, and not capable of being resolved. There was no indication to me, even at the eleventh hour, as to what I was being expected to determine from the outstanding facts and matters which were in dispute. Threshold must be thought out, and any issues in need of determination identified at the earliest possible stage and the PLO applies. It is entirely unsatisfactory to present a court at the start of a final hearing with matters relied upon which have not been either agreed or identified for determination. Precious time was therefore taken up on this issue alone. Either a threshold is agreed or it is not at the earliest possible stage, in which case the court takes a view. In the event the parties managed to agree threshold at the start of the hearing.


Finally, the judgment makes a point about judicial reading time. There is never enough of it allocated, but the parties don’t help by not estimating it properly. We are obliged to put in the case summary how much judicial reading time is needed.  That bit is never nice to fill in – if you are realistic, and put that for an IRH the Court ought to read everything, and have a grasp and knowledge of it, then for a 350 page bundle, a minute a page gives you a 6 hour reading time.  A minute a page might be breezy for some parts of the bundle but others might take much longer than that.  Handwritten medical notes for example… Or a page of heavy analysis or cross-references – you might have to slow down to check that the quotations from other documents are fair and representative rather than cherry picked and misleading.


Do you think any Judge is going to thank you for putting a 6 hour – or a cut-down slightly unrealistic 3 hour (30 seconds per page) time estimate for a hearing that is listed for an hour?  So we all fudge and put 2 hours…

If judicial reading time is included, advocates might consider how long it took them to prepare the case for hearing in terms of reading time and allocate judicial reading time accordingly.


Of course, if we had the old days of special prep SIPS forms, a Judge could tackle this by saying that the reading time that counsel would get paid for would not exceed the reading time allocated to the Judge. That would have made for more accurate estimates of judicial reading time…




Crime and care


This was an appeal decision, which really arose from the Court in care proceedings making findings that sexual abuse allegations against a father were proven (and then making Care Orders and Placement Orders) and the criminal trial then going down the route that the allegations were concocted and the jury unanimously acquitting the father.

The father applied for a re-hearing of the care proceedings.  As part of that re-hearing, it was vital to see exactly what the Judge in the criminal proceedings had said as part of his summing up to the jury before their acquittal. That information was very slow in coming forward and the Judge in the care proceedings refused father’s application for an adjournment to get that evidence.


Thus resulting in the summary of this case being :-

Appeal against refusal of an application for an adjournment of an application made by the appellant father for a re-hearing of care proceedings. Appeal dismissed.   {via Family Lore}

John Bolch at Family Lore managed to compress the nub of the appeal into a very short space, with remarkable economy.

Re U (Children) 2015


[I have to say that I don’t entirely agree with the Court of Appeal on this one. I’m not saying that I would necessarily have overturned the original findings, but I would have wanted to see exactly what the Judge in the criminal Court directed the jury, and probably the transcripts of evidence in the criminal case before deciding whether this was important fresh evidence]

In the care proceedings, there had been a number of allegations including of physical abuse, but the allegation in question was of a sexual nature.  The parents case was that these allegations were false and had been put into the child’s mind by a community worker named Raj.


  1. The final category of allegation made by ZU alone, was that she had been sexually abused by her father. The judge made findings set out in the schedule in relation to 4 occasions of attempted rape or sexual abuse. In addition to evidence of ZU and the parents, the court also heard evidence in relation to the sexual abuse allegations from a Miss Y and also from a community worker known as Raj.
  2. Raj was a community worker who became involved with the family around the 25 May 2013. It was a short lived connection as Raj and the parents fell out and he was no longer welcome in the family home by the 7 June 2013. It was to Raj that ZU made her first allegation on the 11 June 2013 and it was Raj who supported ZU when she reported the matter to the Social Services and thereafter to the police on the 21 June 2013. This was the extent of his involvement, he gave no evidence in relation to the events surrounding the physical abuse, nor could he.
  3. The focus in both the care proceedings (in relation to ZU’s allegations of sexual abuse) and the subsequent criminal proceedings, was as to whether Raj was a malign and dishonest influence, who encouraged a vulnerable girl to make false allegations against her father in revenge for his having been slighted by them. The reason it was said that ZU would have been susceptible to such influence, was her own desire to see her parents separate and to punish her father for being too strict and not allowing her enough freedom.
  4. In the care proceedings the judge concluded that Raj was an honest and hardworking member of the Tamil community. He regarded Raj’s evidence as much more reliable than that of the parents in relation to the circumstances in which their relationship broke down. In this, he said, he was supported by the evidence of the social worker in relation to issues of timing and ZU in relation to the influence that he exerted over her. The judge found as a fact that Raj did not use his position, such as it was, to persuade ZU to tell lies because the family had slighted him.
  1. Evidence was given by Miss Y on behalf of the parents; Miss Y alleged that Raj had shown photos of young girls of a sexual nature, and that she had heard that Raj had acted towards the mother in a sexual way. The judge regarded Miss Y as “utterly unconvincing witness” clearly “partial and biased”. He did not accept her evidence and believed it likely that she had been “put up to it by the father or someone on the father’s behalf”.
  2. Accordingly the judge, having analysed various inconsistencies that he had identified in the girls’ evidence and considered reasons why ZU might have made up the allegations, concluded that they were true and accordingly made the findings.

The Judge in the care proceedings thus went on to make findings of fact that ZU had been sexually abused by the father.

There were, as I said earlier, other issues that went to threshold, including a finding that the children had been hit


The judge heard extensive oral evidence including (via video-link), evidence from ZU and AU. At the conclusion of the trial the judge made findings of physical and emotional abuse, and domestic violence. The findings of physical abuse made by the judge are summarised in a schedule presented to the court for the purposes of this hearing and include ZU and BU being assaulted by their father, he having beaten them with a wooden implement on 23 April 2013. This beating left ZU with, amongst other injuries, an area of severe bruising of 17 cm x 8 cm on her left forearm. Overall the judge concluded:

“Prior to the incident on the 23 April 2013, all members of the household (including all of the children, the mother and the paternal grandmother) had frequently been subjected to physical abuse by the father. The abuse against ZU, AU, the mother and the paternal grandmother was sometimes very serious. The abuse against ZU, AU and the grandmother included the use of implements at times. The physical abuse against BU was less serious and not very often, the abuse against the twins including them being smacked on their bottoms and on a few occasions they were hit when the father was hitting the mother or other members of the family who were then holding the children.”

The judge also found that the mother would on occasion, physically chastise the children, sometimes on the father’s instruction. The judge made the inevitable finding that the mother had failed to protect the children.


But, staying with ZU’s allegations of sexual abuse, the Judge in the care proceedings had concluded that the parents explanation that Raj had concocted these allegations and put them in ZU’s mind was not correct.


By the time the criminal proceedings took place, two months later, the mother, father, ZU and Raj all gave evidence and the father was acquitted of the sexual abuse allegations.

He then made an application for a re-hearing of the care proceedings, on the basis of what had happened during the criminal proceedings.

“5. It is understood that at the criminal trial of the father before HHJ Saggerson sitting with the jury ZU admitted under cross examination that she had only made allegations of sexual abuse against her father after she had met Raj and commenced a relationship with him. It is understood that she accepted her motivation had been to take revenge on her father as she desired that her parents separate. HHJ Saggerson directed the jury on the basis that there were many inconsistencies in the evidence given by ZU and that further the evidence of Raj could not be relied upon. The jury returned a unanimous verdict of “not guilty” and the father was acquitted.”

Remember that the criminal court is applying a higher standard of proof   [What most people still think of as ‘beyond reasonable doubt’ but is actually now to convict the juror must be persuaded ‘so that they are sure’ in percentage terms probably high 80s, if not 90s]  rather than the civil standard of proof in care proceedings [more likely than not – i.e 50.01% or more]


But this seemed to be more than a Judge just indicating that it was impossible to be sure, and verging towards an indication that the evidence of Raj and ZU was such that it would be unsafe to rely on it due to the flaws in it.

When considering the father’s application for re-hearing then, the substance of what the criminal Judge had said was vital.

  1. The local authority did not accept the accuracy of this summary in the absence of a transcript of the evidence or summing up. Accordingly when the matter came back before HHJ Wilding on the 27 October 2014, the application was adjourned by consent until 12 December 2014 to allow a transcript to be obtained. The order made by the judge on the 27 October 2014 contained a number of recitals including:

    And the court expresses the view that a transcript of the summing up by HHJ Saggerson in the trial of R v KU would assist the court in determining the issues.

  2. The matter came on before the judge on 12 December 2014, when unhappily, but perhaps predictably, the transcript remained unavailable notwithstanding that the requisite application form had been sent to the Crown Court by the proposed appellant’s solicitors some weeks previously.


On 12th December then, the father asked for an adjourment to get this evidence. The Court refused the adjournment and went on to consider the father’s application for a re-hearing in the absence of that evidence.

  1. The inevitable application for a further adjournment was made on behalf of the appellant in order for the transcript to be obtained. The application was opposed by both the local authority and the guardian, although supported by the mother. The judge refused the application for a further adjournment and set out his reasons in an extempore judgment. He then went on to hear the substantive application for a rehearing, which he refused for reasons to be given at a later date.

    The Refusal of the Adjournment

  2. The judge, as he identified in his extempore judgement, was faced with balancing two rival issues saying:

    “[8] Clearly there are a number of competing issues here. There is the need to ensure justice to the father and the mother and the children. There is a need to have finality in respect of the proceedings generally, but in relation to children particularly and to avoid delay. It is not I confess, an easy decision to make weighing up each of those factors.”

  3. The judge then weighed up, on the one hand the detriment to the welfare of the children in the event of further delay and on the other, the prejudice to the father if his ability to make an effective application for a rehearing was undermined by the denial of a further adjournment.


Of course, in a practical sense, the delay for the children still occurred, since the decision was appealed, and the appeal Court didn’t hear the case until mid March. It might have been a far less disruptive delay to have waited until mid January to actually get the transcript of the Judge’s summing up…


The Court of Appeal accepted that any decision made by the Judge hearing that application would be imperfect.

  1. When the judge heard the application for an adjournment on 12 December 2014, it was already 19 months since proceedings had been issued and over 5 months since the placement orders had been made. Had the judge allowed the adjournment, it was anticipated that it would be something in the region of 5 months from the date of the making of the application, until the next case management hearing, (just a little under the statutory time limit for the whole of a care case from beginning to end). It was accepted by Counsel that if he were to succeed in his ultimate goal to set aside the findings of sexual abuse, there would thereafter be further substantial delay for these children; the summing up when obtained would not be evidence in itself but would provide a pointer as to which, if any, transcripts of evidence from the criminal proceedings should be obtained for consideration by the court in determining the father’s application.
  2. In the event that the judge, having examined the transcripts of evidence ultimately allowed the case to be reopened, further delay would ensue as many months would inevitably pass before a retrial of the sexual abuse allegations could be accommodated. The judge was only too well aware that the two younger children, settled in their adoptive placement, were developing the attachments vital to their future well being, and that their prospective adoptive parents would be living with the near intolerable strain brought about by the protracted uncertainty as to the children’s future; strain which would necessarily impact on the family environment to the detriment of the children.
  3. The older children too were, and would be, further affected by delay. They were in foster care, still connected to their family and living with the uncertainty of whether the case had come to an end or whether, in AU’s case, she might have to give evidence again.
  4. If delay sat heavily on one side of the scales, on the other side was the prejudice to the father if he were unable to draw upon what he asserted to be the evidence in the criminal proceedings; evidence which it was submitted on his behalf, had led to an acquittal and which notwithstanding the differing standard of proof applicable in the two jurisdictions, significantly undermined the findings made in the care proceedings. The care judge recognised that there was little the father could do to further his application without more than the assertions he was putting forward as to the content of the summing up.
  5. The judge frankly recognised the difficulties inherent in whichever decision he reached, but a decision had to be made. This was a classic example of a case where any decision made by the judge would be “imperfect”.


With that in mind, the Court of Appeal considered that there had been a proper balancing exercise about the pros and cons of the father’s application for an adjournment and the Judge was right to refuse it

  1. In my judgment the judge was entitled to conclude that the balance lay in favour of refusing the application for a further adjournment. He properly identified the competing arguments and weighed each one up briefly but with care. He clearly had at the forefront of his mind the importance of the application and the potential prejudice to the father’s case which would result from a refusal. The judge had had the advantage of conducting a lengthy trial and of making his own assessment of the parties prior to making the findings of fact to the civil standard of proof. He appropriately considered the father’s case at its highest and properly bore in mind the other extensive findings, which were unaffected by the criminal trial and which were in themselves serious, before concluding that the further substantial delay which would be occasioned by a further adjournment could not be countenanced in the interests of the children.
  2. In my judgment the judge conducted the appropriate balancing exercise and reached a conclusion which cannot be categorised as wrong and accordingly I would dismiss Grounds 1–3 of the Grounds of Appeal which relate to the refusal to adjourn.


[It is really hard for me to put out of my mind that the reason father’s case was prejudiced here was not due to any inaction on his part or those acting for him, but on the delays in the Court process of obtaining a transcript that was so vitally important. The Court of Appeal have remarked many times on how slow the transcription of judgments for appeals has been and how the system gets bogged down. Here, that transcript was not just an informative document but a piece of evidence that the father was deprived of making use of, because the system is so unfit for purpose. That leaves a very bad taste in my mouth]


Having lost the argument that the application for an adjournment should have been granted rather than refused, the father was inevitably going to lose the second part of his appeal that the re-hearing should have been ordered.

  1. Application for a rehearing
  2. By Ground 5 the father seeks to appeal the judge’s dismissal of the substantive application for a rehearing pursuant to s31F(6) Matrimonial and Family Proceedings Act 1984.
  3. In considering this application the judge made his decision by reference to the test found in Re ZZ, (Children)(Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95, an approach which was not resisted by any of the parties. Re ZZ adopts a three part test first propounded by Charles J in Birmingham City Council v H and Others and adopted by the President in Re ZZ at [12] as:

    …Firstly the court considers whether it will permit any reconsideration or review of or challenge to the earlier finding…If it does the second and third stages relate to its approach to the exercise. The second stage relates to, and determines, the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant tests to the circumstances then found to exist

  4. In considering the first stage the President said [33]

    ……one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my part I would be disinclined to set the test any higher.

  5. The judge explained that there was no evidence to support the father’s submission other than his own assertions about what had happened at the trial The judge’s decision to refuse to permit a reconsideration of the findings of sexual abuse did not rely exclusively on the absence of the availability of the summary of evidence that the father had hoped would be found within the summing up. The judge concluded there were no grounds, let alone solid grounds, for revisiting his findings. The judge pointed to the fact that he had seen and heard all the witnesses and that he was alert to the father’s case that ZU had ulterior motives for making the allegations. In relation to the criminal trial, the judge observed that even had the judge conducting the criminal trial said that which the father alleged he had in the summing up, care proceedings are conducted to a different standard of proof. The judge alluded also to the likelihood there was significantly more surrounding evidence available to the him as the judge in the care proceedings than that put before the jury in the criminal proceedings; an observation accepted on behalf of the father.
  6. Not only did the judge unequivocally conclude that the first limb of the test was not satisfied, but he referred to the other serious findings of physical and emotional abuse and domestic violence saying There is no suggestion… that those findings would not stand against the father, and indeed the mother. Finally the judge concluded that even had the father passed the first test in Re ZZ, there would be no reason for further investigation as there was more than adequate material which is unchallenged, to found the making of the orders that have been made in respect of each of the children.
  7. I agree with the analysis of the judge, who was well aware that his decision meant that the father would be unable to challenge the findings of sexual abuse. Given the totality of the unimpeachable findings and the need for finality in the interest of these four damaged children, I cannot see upon what basis the court could conclude that the earlier findings need revisiting in order for a court to reach the right decision in the interests of the children.
  8. I would accordingly dismiss the father’s appeal in relation to the substantive application for a rehearing of the finding of fact hearing.


I personally think that if the father had been able to obtain a transcript from the criminal trial showing that an experienced Judge had seen ZU and Raj crumble under forensic examination and shown themselves to be unreliable witnesses who had concocted this story and more importantly that ZU had accepted in her evidence that she HAD fabricated the allegations, that would have been enough to meet the test.

Of course, it might be that the transcript would, if obtained, fall substantially short of that. Perhaps father was over-stating it. Perhaps he was completely right. We will never know. It doesn’t seem that it even materialised for the Court of Appeal hearing.

Have the Courts here really upheld the father’s article 6 right to fair trial? Given that father was deprived of the key piece of evidence not because he was dilatory or hapless, but because the Court system for getting a vital transcript was so hopeless.

Well, they have upheld his Article 6 rights , because the Court of Appeal say so. But I haven’t read many Court of Appeal decisions that made me feel so squirmy and uncomfortable  (Cheshire West in Court of Appeal  was the last one I felt like this about)

Only just over the threshold


I am tending to think that there’s a repositioning of the threshold criteria going on at the moment. It is a little hard to call, since there’s always been the unspoken background that what constitutes threshold in Liverpool doesn’t necessarily be the same things that consitute threshold in Torquay. But it feels that Re A and Re J are a subtle raising of the bar.

When a bar is raised, it can be tricky to work out exactly where that bar now is. We know that on the facts of Re A, threshold was not made out, but we don’t know if it was miles short or inches short.

Which is why when the President decides a case and says that the threshold criteria was satisfied but only just, it gives us some potentially useful information.


Leeds City Council v M and others 2015  is the follow-up to the President’s judgment on Female Genital Mutilation (you may remember, this was the case where that was alleged, and the President had to decide (a) if it had happened (no) (b) whether it could amount to threshold (yes) (c) Would it amount to risk of harm to a male child (no) and (d) if it had happened, would it by itself justify adoption (no)

The President’s first judgment pre-dated Re A, which is what makes me think that there’s a shift in thinking. The President here didn’t seem to be struggling with the idea that domestic violence, even if not of the most serious nature could amount to significant harm:-


“(i) The local authority is unable on the evidence to establish that G (as I shall refer to her) either has been or is at risk of being subjected to any form of female genital mutilation.

(ii) There was a greater degree of marital discord than either M or F (as I shall refer to them) was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety.

(iii) Given all the facts as I find them, including but not limited to (i) and (ii) above, threshold is established.

The President had said in the first case that adoption, the LA’s plan, was not proportionate, and was seeking an alternative resolution. This case is that resolution.

In giving his final judgment, the President identified four key areas where the LA contended threshold was met:-

1. Mother’s mental health

2. Domestic violence

3. Neglect and physical abuse

4. Lack of cooperation / engagement

Remember, the President concluded that threshold WAS met, but only just.

I am prepared to accept, in the light of my findings, that threshold is established, though not by a very large margin.

So, looking at things in detail


1. Mother’s mental health

The psychiatrist, Dr T, made the diagnosis that mother had ‘schizo-affective disorder’, currently in remission, but a lifelong condition vulnerable to relapse caused by stress. Dr T said at least 12 months’ stability in M’s condition was essential if B and G were to be safe in her care and that the necessary period had not yet elapsed. If stability and compliance could not be maintained over that length of time, it would be “very risky” for them to be returned to her care

The Judge accepted Dr T’s evidence and opinion.


  • I accept that there has been improvement in M’s mental health. But Dr T’s evidence, which I accept, is clear, compelling and withstood all challenge. It would be irresponsible not to heed and give effect to it. In my judgment, M is not at present able to look after B and G.

[You might look at that and say that this in and of itself is sufficient to cross the threshold – there’s a factual matrix which allows the Court to establish that there is a risk of significant harm – remember that if a factual matrix is established, the risk itself does not have to be more likely than not, it is sufficient to be a risk which cannot sensibly be ignored, as decided by the House of Lords in H and R 1996. ]


2. Domestic violence


The mother had made allegations of domestic violence against the father, but later retracted them. The Court had heard evidence from mother and father.

My conclusion, having carefully considered the mass of material put to me and the helpfully detailed submissions from counsel, is that there was, as I have said, a greater degree of marital discord than either M or F was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety. It was, as Mr Ekaney submits, at the lower end of the scale. Beyond that it would not be right to go.


Remembering that the definition of ‘harm’ was expanded in the Children Act 1989  to include the words in bold  “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];     – the words being added in the Adoption and Children Act 2002. So a child being exposed to domestic violence, or at risk of being so exposed can be considered to have suffered harm, or risk of such harm – the issue really being whether it is significant.  The President does not, in his judgment, specify whether his conclusion about domestic violence here amounted to significant harm or the risk thereof.  The best we can do is go back to this bit

“(i) The local authority is unable on the evidence to establish that G (as I shall refer to her) either has been or is at risk of being subjected to any form of female genital mutilation.

(ii) There was a greater degree of marital discord than either M or F (as I shall refer to them) was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety.

(iii) Given all the facts as I find them, including but not limited to (i) and (ii) above, threshold is established.



and suggest that domestic violence was part of the factual matrix that led the President to conclude that threshold was crossed, though not by a very large margin.


3. Neglect and physical abuse


This is the section where you get to see the Re A dynamics play out. There are facts established to show what happened to the children

There were two very specific allegations of neglect, amongst more general complaints

in October 2013, G was taken to nursery with spare clothes that were damp, soiled and smelled of urine; much more significant, on 7 November 2013 M, it is said, abandoned G in an alleyway in the city centre, where she was found cold, wet and very distressed. 

[The mother accepted the abandonment. G was born in July 2011, remember]


There is no doubt that B and G experienced instability and inconsistency of care, brought about by M’s recurrent mental health difficulties and F’s limited ability to cope with them. There were the specific instances of neglect I have already referred to.  To the extent that there was marital discord between F and M, B and G were exposed to it. I think it is probable that on a few occasions B and G were exposed to mild chastisement – but nothing more serious.


But as Re A showed us, establishing a contested (or accepted fact) as being proven is only half of the story. The next stage is for the Local Authority to satisfy the Court that what happened caused the children harm.

In this case, the Guardian considered that the children did not present as having been damaged by their experiences

“Without exception these two children have been described in very positive ways; it is clear they are delightful and endearing children who make a good impression on anyone who meets them. It is also clear that the first impressions of these children did not signify children who had been exposed to neglect, or an abusive home environment. They appeared to have been protected from the worst excesses of the mother’s mental health challenges. They have experienced positive parenting.”


The President says

I entirely agree. The guardian’s analysis accords with everything I have read and heard.

What is important, however, is the fact that, as I have already found, none of this seems to have had any significant or prolonged impact on either B or G – so nothing they have been exposed to can have been that serious.


The President doesn’t say so explicitly (which is somewhat vexing for those of us who are trying to decipher the Delphic offerings), but I think that that final remark can be read to mean that he did not accept that the threshold was made out on the basis of the neglect aspects.

Frankly, I think abandoning a 2 1/2 year old child in an alleyway is significant harm, but it appears that I am wrong about that.


Firstly, this troubles me because that sort of thing also feeds into risk of future harm, and of course a child isn’t yet showing the ill-effects of future harm. This approach seems to ignore future harm entirely.

The other thing that concerns me about this approach is that I can forsee that we are ending up with a different threshold criteria for a resilient child, who is exposed to poor parenting but has inner qualities that allow them to cope, and a fragile child whose reaction to the same parenting is marked and plain to see.  And it also requires that the child is showing the effects of the harm that they have suffered in a very visible and measurable way – I know that the neuroscience is controversial, but there is at least some evidence to suggest that neglect has much longer repercussions than the immediate visible impact.


4. Lack of cooperation / engagement


Here the parents made concessions



  • M admits poor engagement with professionals due to her mental health problems.
  • F accepts that, prior to the children being taken into care, he failed to engage and co-operate with the local authority and that this led to him adopting what was understandably perceived as a controlling attitude towards M. This, I accept, was driven by the two factors to which Mr Ekaney drew attention. The first was F’s perplexity about the family situation, largely caused by his failure to recognise the nature and extent of and inability to understand M’s mental health difficulties. The other was F’s desire to protect his family and his fear, from his perspective well-founded fear, that B and G would be removed from their care. Since B and G were taken into care, F’s attitude has changed. There has been, as Mr Ekaney puts it, a high level of co-operation and engagement with the local authority, coupled with a high level of commitment to B and G. And, as I accept, this is not due to any compulsion; it reflects F’s growing realisation and acceptance of the underlying realities.
  • Given M’s and F’s concessions, which appropriately reflect the reality of what was going on, there is no need for me to make any further findings.


[Well, there is a slight need – again, I am assuming that this was not found to have amounted to significant harm or the risk of significant harm, but it is rather difficult to say for certain, because the judgment doesn’t outline it.  To be honest, I do not envy the Local Authority advocate who had to draw up a final settled threshold based on this judgment. I THINK that the totality of the judgment suggests that findings of fact were made across points 1-4, but only those in points 1 and 2 amounted also to findings of significant harm. But I would not race to Paddy Power with bundles* of fivers to back that conclusion. My actual bet would be that over the next year, the number of cases where threshold is agreed rather than fought out will dramatically reduce. And as we can’t have fact finding hearings any more, thresholds will be fought out at final hearings. How’s that going to work out for 26 weeks, I wonder?]



The President ruled that whilst mother could not care for the children now or within their timescales, the father could and should be given that opportunity, and the children would be placed with him under Supervision Orders.

So there we have it, on these facts, the case crossed the threshold, but not by a very large margin.



*IF I did happen to be going to the bookies with bundles of fivers, I would ensure that in accordance with Practice Direction 27 there were (a) no more than 350 of them (b) They were A4 sized  and (c) that they were printed only on one side. Which explains why Paddy Power doesn’t want me going in there any more.


Adoption – here we go again?

The Court of Appeal have found the reverse gear to their reverse gear (from the original reverse gear of Re B-S).  Sort of.

I actually think this is just the Court of Appeal reminding Judges that in cases where Placement Orders are being made, it is actually a requirement that the judgment explains why.


There have been a few cases where the judgments have been flawed and the Court of Appeal rolled up their sleeves, got under the bonnet of the case and got oil on their forearms in order to set out what the Judge must have meant, but omitted to say. This wasn’t one of those.

Re J (A child) 2015


It is pretty bad that the Court of Appeal remark of the judgment that it barely contains any information that emerged during a three day final hearing or any analysis of the evidence that the Court heard.

The judgment is contained within 38 paragraphs and runs to some 16 pages. Two thirds of the substance of the judgment consists, however, of verbatim recital by the judge of sections within the local authority chronology and the parenting assessment

The judge’s approach to the content of the assessment report was to select substantial passages from that document and simply quote them in narrative form within his judgment. From time to time the judge punctuates these extensive quotations with a comment and, on three occasions, with respect to specific matters the judge simply states that he “rejects” or “accepts” one account or another. No reasons are given for such acceptance or rejection and no references are made to any oral evidence given to the court on any of these three specific points during the three day oral hearing. Indeed, the judgment does not contain any account at all of the oral evidence. The judge’s quotations with regard to the parents’ capacity are all drawn from the written report alone.

This Judge also did something that I have complained about (not with my own Judges, but because I read the published judgments that go up on Bailii) where it appears that simply setting down the law and the rigorous tests to be applied has become a substitute for actually engaging with those tests. The Court of Appeal in Re BS deprecated the practice of stock phrases being used as ‘judicial window dressing’ rather than Judges actually engaging with those ideas and applying them to the facts of the case, but if anything since Re B-S the published judgments on Bailii just show that the stock phrases have just become stock paragraphs.

10…the judge gives a brief outline of the legal context within which he was required to make the necessary decisions. He did so in these terms at paragraph 4:


“I recognise immediately that to accede to the Local Authority application I must conclude that there is no other option open, no other option exists for the welfare of this child other than to make the order that the Local Authority seek, it is a position of last resort and it is only a position I can adopt if nothing else remains. It is a draconian order that the Local Authority seek, I have to adopt a holistic approach measuring the pros and cons, the child has a right to a family life with birth parents unless his welfare and safety direct that I am forced, and I underline the word forced, to accede to the Local Authority application.”

  1. Insofar as it goes, the judge’s description of the legal context cannot be faulted. It is repeated towards the end of the judgment at paragraph 36 in these terms:

    “Again I repeat I cannot concur with the Local Authority application unless what they say establishes a case of necessity for adoption, nothing less than that will do, intervention in a child’s right to a family life if at all possible should be through the birth parents or extended family, is it possible that the Local Authority could provide a package of support to maintain the child in the family?”

  2. Again, that account by the judge is entirely in keeping with the current case law regarding these important decisions. The criticism made by Miss Fottrell and Miss Hughes is that in all other parts of the judgment the judge signally failed to operate within the legal parameters that he had described.


It is of note that the Court of Appeal formally acknowledge and approve the President’s judgment in Re A about thresholds, giving them even more weight if any were needed.


In fact, as Lord Justice Aikens not only approved the points in Re A, but provided a distillation of them, this authority bolsters those points considerably. You won’t get far re-arguing those points with the Court of Appeal.   [Although I note with heavy heart that ‘nothing else will do’ is making a comeback, after I thought we’d reverted to Baroness Hales full paragraph]


  1. This case exhibited many of the shortcomings that were highlighted in the judgment of Sir James Munby P in Re A (a child) [2015] EWFC 11. I wish to endorse and underline all the points of principle made and the salutary warnings given by the President in that case. It is a judgment that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases. As the judgment of the President in that case is necessarily long and detailed, I have respectfully attempted to summarise below the principles set out, none of which are new. I venture to give this summary in the hope that advocates and judges throughout England and Wales who have to deal with these difficult care cases will pay the utmost heed to what the President has said. Advocates and courts are dealing in these cases with the futures of children, often very young and therefore very vulnerable. They are also dealing with the futures of parents who may be imperfect (as we all are) but who often dearly love the child who is at the centre of the litigation. Separating parents and child by placement and adoption orders must only take place if it is proved, upon proper evidence, that “nothing else will do”.
  2. The fundamental principles underlined by the President in Re A, which, as I say, are not new and are based on statute or the highest authority or both, can, I think, be summarised thus:i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.

    ii) If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.

    iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.

    iv) The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)

    v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority. “The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.

    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. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.

    vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.

    viii) In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] 2 RLR 625.

I think that is an excellent distillation, and much more user-friendly than the original.

Ms Daisy Hughes drew out a particularly good point, and one which I expect to see appear again  (I applaud her work here)

On behalf of the father, Miss Daisy Hughes draws attention to the fact that there is no reference at all to the father’s evidence in the judgment. In this context Miss Hughes relies upon the case of Re A (A Child) [2015] EWFC 11 in which, at paragraph 6, Sir James Munby P states:

“I add two important points which I draw from the judgment of Baker J in Devon County Council v EB and Ors (Minors) [2013] EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?”

In short terms, Miss Hughes submits that the approach that is described there by The President is plainly correct and that the judge in the present case failed to conduct any effective analysis of the evidence in the sense of giving any regard to the evidence from either of the parents. To the extent that the judge made any findings, Miss Hughes relies upon the complete absence of any reference to the father’s evidence to make good her submission that this judgment falls well short of what is required.

In this particular case, the parents were disputing the threshold and the order sought was the most serious that the Court could make. So it was imperative that the Court gave a judgment that resolved the factual issues and set out what harm the Court considered the child was suffering from or at risk of suffering, as the ‘baseline’ for considering what orders might be necessary.


The trial Judge had failed to do this. The Court of Appeal expressed some doubt as to whether, as pleaded, threshold was capable of having been met.


  1. The parents did not accept that the facts of the case justified a finding that the threshold criteria under CA 1989, s 31 were met. On the facts of this case, and, in particular, on the basis upon which the local authority had chosen to plead the threshold grounds, the parents’ stance was not without merit.
  2. In addition to the threshold document, the local authority analysis was summarised in a witness statement made by the key social worker in May 2014 in these terms [page C166 paragraph 38]:

    “It is my professional opinion that [mother] and [father] have demonstrated no positive change since the initial removal of J from their care, and neither have they accepted the local authority’s concerns, throughout Social Care involvement. This refers to the concerns raised regarding Domestic Violence, J’s exposure to a lack of routine and consistency, their own levels of immaturity and the impacts of [father’s] substance misuse. It is my professional opinion that many of the local authority’s concerns relate to the lack of maturity of the couple.”

    In that paragraph ‘Domestic Violence’ must, even on the judge’s findings, be confined to the assault a year prior to J’s birth, clothes being thrown out of a window in March 2014 and the mother’s reported complaint in April 2014 of controlling behaviour and punching. The lack of routine and consistency arise from the parenting assessment. The father’s admitted cannabis misuse does not relate to a time when either parent had the care of J. Immaturity is undoubtedly an issue but, as my lord, Lord Justice Vos, observed during submissions, a presumption that no young person would behave other than perfectly is unsustainable.

  3. To my eyes, the content of this central paragraph within the social work statement begs the question whether this statement of the local authority’s ‘concerns’, even taken at its highest on the basis of the factual evidence, is sufficient to support a finding that it is necessary for J to be placed permanently away from his parents and adopted. In that respect, and with particular regard to what is said about domestic violence, I readily endorse the words of the President in his judgment in Re A (see above), which was handed down in the week prior to our hearing where, at paragraph 16, he stressed the need always to bear in mind the approach described by His Honour Judge Jack in North East Lincolnshire Council v G and L [2014] EWCC 877 (Fam):

    “I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.”

  4. There was a need for the judge to make clear and sufficiently reasoned findings of fact with respect to any disputed issues. There was then a responsibility upon the judge to identify whether, and if so how, any of the facts found, either alone or in combination with each other, established that J was likely to suffer significant harm in the care of either or both parents. Finally it was necessary for the threshold findings to identify (at least in broad terms) the category of significant harm that the judge concluded was likely to suffered by J.


The Placement Order was over-turned and the case sent back for re-hearing before a different Judge.

A tottering edifice built on inadequate foundations

The President’s decision in Re A (a child) 2015 in which the Court were asked to make a Care Order and Placement Order on a child who was not quite a year old, and refused to do so – even more significantly finding that the threshold criteria for making such orders were not made out, and castigating professionals for sloppy thinking and lack of rigour in their analysis of significant harm.


(It comes pretty close to how I expected the Supreme Court to have dealt with threshold in the Re B case, but in the event, Baroness Hale was the only one who went near that)


Skipping ahead to the core analysis and decision on threshold and the applications:-


  1. I have gone through the local authority’s various concerns in some detail. As I have explained, many of the local authority’s allegations have been abandoned or cannot, for the reasons I have given, be substantiated. What is left? I can summarise it as follows:

    i) The father is immature and can sometimes act irresponsibly. As the history of his relationships with both the mother and J illustrate all too clearly, he seems to have a tendency to fall very quickly into unsatisfactory and short-lived relationships.

    ii) In some instances, though not to the extent alleged by the local authority, the father has minimised or played down matters which were properly of concern to the local authority. He has not always been open and honest with professionals. He failed to appreciate the significance of his actions in relation to J.

    iii) To an extent the father is lacking in insight regarding A’s needs and minimises some aspects of his character and behaviours which may bear adversely on A.

    iv) On occasions the father drinks to excess. On occasions he has taken cannabis. There have been episodes of domestic discord between the father, his mother and his step-father, involving the police and, on occasions, actual violence.

    As against that, I should record that on matters of fact I found the father to be a truthful and, for the most part, reliable historian.

  2. What does this amount to? Does it suffice to establish a real possibility that A will suffer significant harm? Even if it does, has the local authority established that A’s welfare requires that he be adopted, that “nothing else will do”?
  3. In my judgment, the answer to each of these latter two questions is No. My essential reasoning is two-fold. First, the many flaws in the local authority’s case to which I have already referred go a very long way to weakening its case. Taking account of all the evidence, and surveying the wide canvass, the real picture is very different from that which the local authority would have had me accept. Secondly, and having had the advantage of hearing the father and his mother give evidence, I cannot accept that the father presents the kind of risk to A which gives rise to a real possibility of A suffering significant harm, let alone the degree of risk which would have to be demonstrated to justify a plan for adoption. I say that taking full account of all the father’s faults but also factoring in the positives identified by SW1 and giving appropriate weight to the degree of commitment to A the father has demonstrated in contact.
  4. I can accept that the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father’s care.


And later

I am very conscious that in coming to this conclusion I am departing from the views and recommendations not merely of the local authority (that is, of SW1, SW2 and TM) but also of A’s guardian, CG. But I have to have regard to a number of factors to which I have already draw attention:

i) In a significant number of very material respects the local authority has simply failed to prove the factual underpinning of its case.

ii) SW1’s work was seriously flawed. Neither SW2 nor CG seems to have explored or analysed in any detail the underlying factual basis of the local authority’s case. In large part they simply accepted SW1’s factual assumptions. Insofar as they conducted independent investigations with the father, each met him only once, SW2 for about 75-80 minutes, CG for only 45 minutes.

iii) The local authority was too willing to believe the worst of the father, which led to it being unduly dismissive of what he was saying.

iv) The local authority failed to link the facts it relied upon with its assertions that A was at risk. Nor did CG.

v) The local authority and CG did not sufficiently reappraise the case once it had become clear that the father was no longer in a relationship with either the mother or J.

For all these reasons I am entitled, in my judgment, to come to a different conclusion. My duty is to come to my own decision having regard to all the evidence, and, for reasons which will by now be apparent, I am driven to conclusions other than those shared by the local authority and CG.



A lot to cover in this, but let’s start with the Children’s Guardian. This read to me like a Guardian who saw which way the wind was blowing and jumped off “HMS Adoption Full Speed Ahead” and onto the “good ship Naughty Local Authority”   (this is one of my pet hates – by all means criticise a Local Authority and challenge them on poor work, but don’t do it after the event)

We have a Guardian who was saying to the President that she was “appalled” by the social work assessments and evidence, but in her written evidence to the Court was supporting their conclusions and saying there wasn’t a need for any further assessments.

  1. On 6 October 2014 CG completed her initial case analysis. It is striking for what it did not say. In her oral evidence to me, CG described herself as being “extremely concerned” by the assessments. She was, she said, and this was her own, unprompted, word, “appalled”, not merely because of the local authority’s delay in issuing the proceedings but also because of the poor quality of the assessments, both the assessment of the father and the assessment of the paternal grandmother and step-grandfather. Nothing of this is to be found, however, in her initial case analysis. Having summarised what was reported by the local authority, she turned to the assessment of the father, which she described as “negative” and as highlighting various concerns, which she then enumerated. She said:

    “Taking into consideration all of the information contained within the documentation filed with the Court by the Local Authority I do not consider that any further assessment of either parent will assist in determining the long term plans for A.”

    Having expressed concerns about the local authority’s delay from 17 February 2014 to 16 September 2014 in issuing proceedings, she identified the need for any other potential kinship carers to be identified and assessed and recommended the making of an interim care order.

  2. The letter from Mr Leigh had, as we have seen, referred to the guardian being “most concerned at the social work exhibited in this case” but it focused on the issue of delay. In her oral evidence to me, CG said that she had brought her concerns about the quality of the assessments to the attention of the local authority’s representatives when the matter was back at court on 6 October 2014. No doubt she did, but what is far from clear is the extent to which, if at all, her concerns were articulated, either to the other parties or to Judge Taylor. I am driven to the unhappy conclusion that whatever may have been said was wholly inadequate to bring home, either to this very experienced family judge or to the parties, the guardian’s real views about the inadequacy of the assessments. The order made following the hearing recorded the guardian only as having “significant concerns regarding the delay” and as wishing matters to be concluded “swiftly”.


The Authority is named, but social workers are not. . I know that this vexes people, so given that it was the President who wrote the guidance saying social workers should be named AND that this judgment is a mullering, I’ll allow him to say in his own words why he decided that


  1. It will be noticed that I have, quite deliberately, not identified either SW1 or SW2 or TM, though their employer has, equally deliberately, been named. There is, in principle, every reason why public authorities and their employees should be named, not least when there have been failings as serious as those chronicled here. But in the case of local authorities there is a problem which has to be acknowledged.
  2. Ultimate responsibility for such failings often lies much higher up the hierarchy, with those who, if experience is anything to go by, are almost invariably completely invisible in court. The present case is a good example. Only SW1, SW2 and TM were exposed to the forensic process, although much of the responsibility for what I have had to catalogue undoubtedly lies with other, more senior, figures. Why, to take her as an example, should the hapless SW1 be exposed to public criticism and run the risk of being scapegoated when, as it might be thought, anonymous and unidentified senior management should never have put someone so inexperienced in charge of such a demanding case. And why should the social workers SW1, SW2 and TM be pilloried when the legal department, which reviewed and presumably passed the exceedingly unsatisfactory assessments, remains, like senior management, anonymous beneath the radar? It is Darlington Borough Council and its senior management that are to blame, not only SW1, SW2 and TM. It would be unjust to SW1, SW2 and TM to name and shame them when others are not similarly exposed.
  3. CG stands in a rather different position. I have expressed various criticisms of her: see paragraphs 39-40, 49 and 97 above. But it would be unfair and unjust to identify her if others are not.

Looking now at some of the detail, although much is fact specific, the President is really attacking a wider malaise, in that there was an approach here in relation to threshold which put in almost everything negative about the parents that one could think of, without proper consideration of these two issues:-

1. Could those things be proved? And proved properly, not merely relying on hearsay?


2. Even if proved, did they go to establishing that the child had suffered harm or was at risk of suffering harm?

To highlight one example, the father in the case had a conviction, when he was 17 for having sex with a girl who was 13. He accepted that, although said that he had not known her age at the time. The offence was nine years ago.

In her witness statement SW1 said much the same. I need not set it all out. Two passages suffice:

“[He] has failed to work openly and honestly with the Local Authority, as has his mother and her partner. [His] acceptance and understanding of the severity of the offence … continues to cause the Local Authority significant concern …

Despite several attempts of advising [him] that the Local Authority acknowledge that this offence was committed a significant period of time ago, he was unable to acknowledge the significance of this. A requires appropriate role models within his life whereby he is given the opportunity to learn socially acceptable behaviours. It appears [the father] fails to acknowledge the immoral nature of this offence, and as he did not receive a criminal conviction, feels this incident is not significant, nor is it in the interests of A for this to be explored further.”


That is the sort of thing that one does see in social work statements and assessments fairly often, and it is perhaps not a huge surprise that the social workers considered this something of a roadblock to their work with father and whether they could trust him.

The President puts them right, as falling foul of the second question above. They could prove it, yet, but did it MATTER? Was it harm?

  1. There are two things about this which, to speak plainly, are quite extraordinary. First, what is the relevance of the assertion that the offence he committed was “immoral”? The city fathers of Darlington and Darlington’s Director of Social Services are not guardians of morality. Nor is this court. The justification for State intervention is harm to children, not parental immorality. Secondly, how does any of this translate through to an anticipation of harm to A? The social worker ruminates on the “current risk he poses” to “vulnerable young women”? What has that got to do with care proceedings in relation to the father’s one year old son? It is not suggested that there is any risk of the father abusing A. The social worker’s analysis is incoherent.
  2. The schedule of findings asserts (W1) that the father “minimises the significance of these events”. Perhaps he does. But where does this take the local authority? I sought elucidation from both TM and SW2. Their answer was two-fold. First, that the father’s trivialisation of what he had done would inhibit his ability to protect A were A to be at risk of future sexual abuse by others. Secondly, that it would prevent him instilling in A a proper understanding of society’s values. With all respect to those propounding such views, the first is far too speculative to justify care proceedings and the second falls foul of the fundamental principle referred to in paragraphs 14-17 above.
  3. It is an undoubted fact of life that many youths and young men have sexual intercourse with under-age girls. But if such behaviour were to be treated without more as grounds for care proceedings years later, the system would be overwhelmed. Some 17 year old men who have sexual intercourse with 13 year old girls may have significantly distorted views about sex and children, and therefore pose a risk to their own children of whatever age or gender, but that is not automatically true of all such men. The local authority must prove that the facts as proved give rise to a risk of significant harm to this child A. It has failed to do so, proceeding on an assumption that is not supported by evidence. The father has not helped himself by his behaviour towards the social workers, but the burden of proof is on the local authority, not on him. The fact that he was rude to the social workers does not absolve the local authority of the obligation to prove that there is a risk of significant harm. It has failed to do so.
  4. Many children, unhappily, have parents who are far from being good role models. But being an inadequate or even a bad role model is not a ground for making care orders, let alone adoption orders.


That is an illustration of the sort of thing that peppered the threshold, and the President really encapsulates the issue in this line here


9. It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.


and then in paragraph 10

The schedule of findings in the present case contains, as we shall see, allegations in relation to the father that “he appears to have” lied or colluded, that various people have “stated” or “reported” things, and that “there is an allegation”. With all respect to counsel, this form of allegation, which one sees far too often in such documents, is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion. What do the words “he appears to have lied” or “X reports that he did Y” mean? More important, where does it take one? The relevant allegation is not that “he appears to have lied” or “X reports”; the relevant allegation, if there is evidence to support it, is surely that “he lied” or “he did Y”.

  1. Failure to understand these principles and to analyse the case accordingly can lead, as here, to the unwelcome realisation that a seemingly impressive case is, in truth, a tottering edifice built on inadequate foundations.

12. The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority’s case was that the father “lacks honesty with professionals”, “minimises matters of importance” and “is immature and lacks insight of issues of importance”. May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority’s evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts. Here, as we shall see, the local authority conspicuously failed to do so.

What we don’t know, to be fair, is whether this mealy-mouthed threshold document which was a tottering edifice was as drafted by the Local Authority, or the composite document that ends up being produced as an ‘agreed threshold’  – I often see responses to threshold which purport to be an agreed threshold but the revised version is so watered down and wishy washy that it no longer meets the test.  “seemed”, “appeared”  “the child said X but father denies it”, are all the sorts of things that either end up being inserted in an “agreed” threshold to remove argument and dispute OR to be put in to the document in the first place with a view to the threshold not being controversial.

After the opening bit of a threshold document that tells you the child’s name and date of birth and parents, every other paragraph should be  sharply focussed on:-

This is an allegation that can be proved and if proved would demonstrate that the child had suffered significant harm, or is at risk of significant harm.


As the President points out, where the case becomes dominated by the fringe issues of whether a parent has insight, or is truthful, or is open and honest, or is working with professionals, one loses sight of the actual statutory test that we are working to.  These things may have some value  (though less than is believed) when deciding on the right orders ONCE threshold is crossed, but they have no probative weight in deciding WHETHER threshold is crossed.


I have noticed over the last fifteen years a real shift in litigation about care proceedings from scrapping over every single allegation and inch of threshold to a rush to get threshold accepted and resolved, ideally at the first hearing, and all of the litigation being about future disposal and care plan. The President is right – it is rigour in analysing threshold and whether it is met and how which enables the Court to properly decide whether the State should be intervening at all.


Going back to detail, there was substantial play made of the father’s membership of the English Defence League, and it gets crowbarred into the threshold document.

  1. In her statement SW1 returned to the same theme. I need set out only the key passages:

    “the immoral nature of the values and beliefs of members of the EDL and the violence within the protests EDL members engage in is inappropriate and supports inflicting violence injury to innocent members of the Muslim heritage …

    … it is commonly known that this barbaric protestor group promote ignorance and violence in respect of the muslim community … By all means, the assessing social worker supports equality, difference of opinion and that not all races and cultures agree with one another’s beliefs and views. What cannot be condoned however is expressing these beliefs through violence, irrational behaviour and inflicting physical and psychological pain against others due to their religion, the core beliefs and subfocus of the English Defence League. A should reside within an environment that supports difference, equality and independence. He needs to be taught how to express his views systematically and in a socially acceptable way. A should not reside within an environment whereby violence is openly condoned, supported and practiced. [The father] and J need to appreciate this is the twenty first century, the world is a diverse place whereby all individuals should feel accepted, regardless of their ethnic background, race and origin.”

  2. In the schedule of findings the allegation (paragraph 5) is that the father “has been a member of the English Defence League” and that the mother “has previously stated that he has been the target of serious threats to his person and home.”
  3. As in relation to what is said about the father’s previous sexual activity, I find much of this quite extraordinary. The mere fact, if fact it be, that the father was a member, probably only for a short time, of the EDL is neither here nor there, whatever one may think of its beliefs and policies. It is concerning to see the local authority again harping on about the allegedly “immoral” aspects of the father’s behaviour. I refer again to what was said in In re B, both by Lord Wilson of Culworth JSC and by Baroness Hale of Richmond JSC. Membership of an extremist group such as the EDL is not, without more, any basis for care proceedings. Very properly, by the end of the hearing Mr Oliver had abandoned this part of the local authority’s case. Not before time: it should never have been part of its case. That the local authority should have thought that it could, and that its case should have been expressed in the language used by SW1, much of it endorsed by TM, is concerning.
  4. If it really were the case that the father was at risk of serious threats to his person and home, that might be a very different matter, though it is not easy to see why the appropriate remedy for such threats should be the adoption of A rather than the provision of suitable security arrangements. Be that as it may, the local authority has in my judgment failed to establish that such threats were ever uttered with any serious intent, that, if they were, there remains any continuing risk to either the father or his family, or that the risk, if any, is such as to justify its concerns. It is, after all, noteworthy that there is no suggestion that there has been any actual attempt either to harm the father or to damage his home.


The President was also dismissive of the items in the threshold relating to the father drinking and smoking cannabis

  1. It is further said that the father “has a history of use of illegal drugs”, that “alcohol played a part in an incident on 3 December 2014”, that his mother “says that it [alcohol] affects his temper” and that he “failed to disclose that there was a police search of the property … where he was a tenant during which there was discovered 4 cannabis plants and 18 buds on 24 April 2014”.
  2. I have no doubt that the father on occasion drinks to excess, but not to such an extent as to justify care proceedings. He may have taken cannabis on occasions, but the reality is that many parents smoke cannabis on occasions without their children coming to any harm. The police search was of a property which at the time was tenanted and there is nothing to suggest that the father was in any way complicit. These allegations take the local authority nowhere. Parental abuse of alcohol or drugs of itself and without more is no basis for taking children into care.


Okay, say the Local Authority – you’re going to strike out the sexual offence, the lack of insight, the lack of honesty, the alcohol and drug misuse – but we’d still rely on the domestic violence. Not so fast…

I accept, and find, that there have on occasions been episodes of domestic discord between the father, his mother and more particularly his step-father, that drink has played a significant part in this, that the police have on occasions been called out, and that there was a particularly physical confrontation with violence on 3 December 2013. I accept also that there was some lack of frankness on the part of both the father and his mother in relation to the accounts they gave the local authority of that incident. This history, however, needs to be kept in perspective. Neither the number nor the frequency nor the gravity of these incidents is such, in my judgment, as to cause any major concern. Moreover, it is clear to me, having heard their evidence and watched them carefully throughout the hearing, that, despite their differences and notwithstanding these incidents, the relationship between the father and his mother is, overall, positive and mutually supportive.


This is probably the most significant thing about this case – it wasn’t a Local Authority who felt they were on thin ice with dad and were scratching around for threshold – they instead probably legitimately felt that there were a raft of concerns in a number of areas and that the threshold was crossed quite comfortably. As the President showed, if you dissect each and every part of the foundations with that two fold approach – (i)can you prove it? and (ii) if you can prove it, how does it establish harm or likelihood of harm, all of those foundations crumble away leaving the Local Authority with nothing.

This case would have very little to say if it were a case where the LA were “trying it on” but as it relates to a body of thinking where the threshold can be made up of ‘concerns’ or ‘worries’ or ‘issues’ rather than allegations that (a) can be proved and (b) can be shown have a direct bearing on harm or likelihood of harm to the child, it has much broader implications.

If you are a lawyer reading this case in thorough detail, I’d be surprised if you weren’t picking up a red pen and looking through some recent threshold documents.

Where does that leave a parent who has conceded the threshold as being met (given that the PLO and the case management orders press the parties to resolve this issue at the very first hearing)? Well, you’d probably argue that the President’s clarification and sharper focus might warrant looking at the threshold again. I doubt whether this alone would justify an appeal of orders already made, but it might involve some recalibration of threshold documents in cases yet to be concluded.


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