RSS Feed

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   http://www.bailii.org/ew/cases/EWFC/HCJ/2015/27.html  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)

 

https://suesspiciousminds.com/2015/01/14/fgm-an-important-authority/

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.

 

Advertisements

About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

23 responses

  1. totallyconfused

    Well interesting…let’s go through the list shall we:
    *Mental Health: I have a report that specifically states that the LA have ‘given me’ PTSD.
    *Domestic Violence; my other half and I had one instance in 15 years. Yep, I pulled his hair and scratched his neck. I had good reason. The Magistrates said ‘We don’t want to find you guilty but we have to appear to take DV serious; £25 fine. We are both Ok with what happened and soo over it (yep still together..oh, and the event, child was not home!)
    *Neglect and Physical Abuse: not found….ever.

    I told the LA everything; kept them informed; got a nasty email so gave up; next thing I know I am accused of not being co-operative!!!

    I am dying to know how my strapping 13 year old has ever been neglected or abused IN MY CARE….(He has in LA care)

    Basically, the LA don’t like it when I point out every mistake of policy and procedure….but it my background.

    *A hint; I have been asked the question: Do you want to be right or do you want to be happy? They don’t like my answer: ‘Being right makes me happy.’

    • Hey, totally confused, “being right makes me happy” too.

    • Of course you are only obliged to cooperate with the State if the child would suffer harm without the State being involved. So Re A is probably a significant decision for you. (and Re J likewise)

      Can’t advise you whether threshold IS or is NOT met in your individual case, but from what you’ve said, those cases would seem to be pertinent.

  2. Now this where Judges are walking the high wire; any fool can get it right when they are looking at a straightforward situation and the question answers itself, but the closer you get to the margin it becomes exponentially more difficult.

    Incidentally, I have been tootling about your blog and noticed your comments on Justice Rowlatt, otherwise known as God to tax specialists. He was immensely knowledgeable and yet wrote judgements which the vast majority of the population could understand; a skill sadly eluding some of today’s judges.

    He was also numerate; the vast majority of gamblers lose money. He did the maths and realised that vast numbers of loss claims would flood in, and the Exchequer would take a massive hit. His judgement precluded that state of affairs…

  3. So question if you get to final hearing and parents argument is threshold not met and there hasn’t been a fact finding hearing nor a parenting assessment within the case what happens next

    • I suppose a couple of things are possible.

      1. There’s a contest about interim orders – the interim threshold is lower than the final threshold, because it is just ‘reasonable grounds to believe the threshold is met’ – however, now if you had a threshold that was Re A or lower, the parents would have a strong argument to say that interim threshold not met because the Court can’t reasonably believe that the s31 threshold would be made out at final hearing. That would end the proceedings early on, if no threshold established or capable of being established the parents aren’t obliged to participate in any assessment and the State shouldn’t be intervening in their lives. I suspect we are going to see one of these cases reported within the next 6-9 months, because it is an obvious angle of attack given Re A.

      2. Threshold is disputed, but falls to be decided at the final hearing and the case proceeds in the normal way until that time – so assessments take place and the parents decide whether or not to participate. The risk of not participating would be that if the argument on threshold is lost at final hearing, the parent has less of a chance of persuading a Court that they can change or have changed.

      So it ultimately depends on whether the argument is “These things the LA say have not happened” or “These things may have happened, but even if they did, they don’t add up to significant harm”, and of course whether a Local Authority are seeking in the interim to remove the children where it is the latter argument.

      Damn good question.

    • The Court will hear argument, and possibly evidence, about whether the threshold is met. It is for the Local Authority to prove that threshold is met, not for the parents to prove that it isn’t.

      The Court would also be hearing argument and evidence about what should happen with the children IF the threshold is met. (What lawyers call ‘disposal’ – what orders might the Court make)

      If the Court decides that threshold isn’t met, then the children will be with the parents (if the parents themselves are arguing about which of them should have the child, the Court might have to also resolve that, and the parenting assessments might come into that)

      If the Court decides that threshold is met, the next decision will be what orders should be made in relation to the children, which in effect is deciding where the children will live (The Court of Appeal say that the decision is what orders to make not where the child will live, but they amount to almost the same thing)

  4. Really interesting area for discussion. I haven’t read the case, but…..

    From the bit you cite concerning the mother’s mental health, I cannot see how this was used to meet threshold. Clearly there is an issue about likelihood of harm but aren’t disposal and threshold being muddled up here? If the children can’t now safely be returned to her care for a period then at the relevant date they must have been at risk of serious harm (assuming this harm is correctly set out).

    And were perhaps the Neglect / Physical abuse (I don’t see that there was physical abuse tbh) in reality features of the mental health difficulties or unstable home? This heading is used far too frequently but I keep going back to the suggested threshold concerning neglect that came from the President himself e,g, “the parents didn’t feed the children properly” or some such.

    I’m concerned about the domestic violence aspect, which deserves some further thought: only a bit of a slap around such as permitted chastisement of the mother by the father? is this where we are going?

    As for only just meeting the threshold, either it’s crossed or it isn’t. Reminds me of the housemaid who, when the lady of the house find that the housemaid has had a baby says “but it’s only a little one, madam.” Parties have been encouraged to regard the threshold document as a summary only and this inevitably has consequences.

    And yes, different practices are confusing. Some judges just allow enough in the threshold to get threshold met.

    • I think that there is a move towards ‘not all domestic violence equates to significant harm’, from the HH J Jack case, Re A and the Court of Appeal in Re J. I suppose this is a logical extension of Hedley J’s decision in Re L, and of course Lord Templeman. But yes, it is somewhat difficult to criticise a father for minimising dv given that the Courts are also at it.

      (I think there’s something of a conflation here, which is unhelpful, about crossing the threshold such that the State in the form of the Court can properly make orders, and there being a ‘threshold’ for the sort of harm which justifies adoption being the outcome. It amazes me, to be honest, that 25 years on, we are still arguing about what amounts to s31 significant harm)

      We seem to be in an extremely different position on threshold to the President’s “common sense, plain English, keep it short” strictures. At the moment, I’d find it really quite difficult to call whether any particular threshold would meet with Presidential approval or displeasure.

      [Looking back at the summary justice that was doled out to the mother in Re S – the refusal of the assessment and extension of the timetable was inexorably going to lead to adoption, wasn’t she in better shape as a carer than the dads in Re A and this one?]

      • Andrew, are you surprised at the possibility that not all domestic violence equates to significant harm? I would want this to be the default position. Of course the dv incident should be investigated and the family circumstances fully explored in order to assess the risks. In my experience, the usual approach is to regard one incident, e.g. where the police are involved but no-one is physically harmed, as low risk but sufficient to justify registration. Then, if another incident occurs, it moves up the tariff and care proceedings may be considered, if there are continuing risks. During care proceedings the court may accept that that threshold has been met but must not make an order ‘unless it considers that making the order would be better for the child than not doing so’. So a supervision order may be tried before a care order – but obviously if that fails there may be grounds for a care order.

        My point is that formal interventions are better if they gradually move up the tariff and are seen as a necessary response to further incidents/concerns. However, the stage may eventually be reached where the care plan becomes adoption because this meets the child’s need for permanency. At this stage the threshold for adoption has finally been met.

      • A fair point Hilary, and made well.

    • If you read the case you will see that mother’s continuing mental ill-health clearly met the threshold – due to the fact that her illness is a lifelong condition vulnerable to relapse through stress. The risk of harm is therefore proven (though the word ‘harm’ might seem inappropriate). Her diagnosis and subsequent history provide sufficient evidence that she is not emotionally equipped to parent the children.

      Father is dealt with separately because the marriage is over. He seems to be on the borderline but was treated as just over the threshold because there were reasons for believing that the children might possibly be at risk living with him – and supervision is required to keep a watchful eye on them.

  5. This latest judgment provides an excellent account of how to apply the threshold criteria. It is a complex case and very unlike the simplicity of the other recent case – Rotherham Borough Council v L and other 2015 – where evidence of father’s strong belief in the benefits of mild chastisement, domestic violence with police being called, plus his controlling attitude, were enough to meet the threshold – though only for a supervision order, not a care order.

    These recent cases provide much-needed clarification of sec 31. I agree with Andrew that the interim threshold is often lower than the final threshold. However, it is essential that at the interim stage the evidence presented by social workers has been obtained through a formal process of social work investigation and assessment. Some of the problems that have arisen at the final hearing are due to ‘evidence’ being of a poor quality but the judge had allowed to case to progress to the next stage.

    Some social workers do not understand that a shift in approach from ‘family support’ to ‘investigation of concerns’ sets them on to the more formal path underpinned by the 1989 Act. In Re A they used informal care and delayed the start of legal proceedings. The result was that the adoption failed owing to the ongoing failure of the local authority to act lawfully and its evidence being presented in a highly subjective way. In my opinion, if this case had been handled better the boy would probably have been adopted.

    In Re J the case for adoption fell down because of the lack of a proper social work assessment, including information about capacity for parenting – and this is a more familiar scenario.

    • “the interim threshold is often lower than the final threshold”.

      Yes indeed. Because the courts have always understood s38 to have been drafted that way. Whilst remembering that meeting the threshold does not lead inevitably to removal, which is the crucial point that has always to be highligted.

  6. An interesting read indeed.

    I don’t think the bar was set that high in the 1st place, imho the courts abused it by taking it to a whole new level, Sir Munby has simple brought it back to the common sense level it was designed to be at, common sense, how I love common sense, especially when it creates common law.
    As there is no legal age as to when a minor can be left alone, I’m guessing she didn’t do anything wrong, although common sense tells us the child could be in trouble while abandoned, but it’s still not a legal issue ( another blog maybe, but I do believe the law regarding leaving a minor must be changed and strictly adhered to)
    Therefore, there cannot be punishment without crime.
    It is also a concern when the LA do not wish to bring care proceedings to the court, stating private law is manageable, yet the judge bullies them into a care proceedings application, he then of course accepts the threshold he has so neatly engineered, no one wants to have to stand in the RCJ

  7. I can see why you would prefer an abstract definition because it’s always easier as an algorithm, and there’s that vague feeling that the rules should be the same for everyone, but in reality some children do weather things very well, and others suffer harm from identical circumstances.

    Your difficulty is that at some point you would be forced into arguing that, whilst you concede that this particular child hasn’t come to any harm, other children would if they were placed in the same situation, so the threshold should be regarded as met pour encourager les autres.

    That isn’t going to fly, and if you then fall back on ‘there may be psychological damage we can’t yet see’ you are not only not off the ground but probably sunk six fathoms under.

    It is incredibly hard to predict individual outcomes in what would be regarded as a straightforward physical illness or injury. Even with the massive array of technology that exists in modern medicine the best you are going to get is probabilities. Say, for example, a procedure works in 90% of cases and fails in 10%. Even with perfect statistical analysis, ensuring that you really are comparing like for like, there is still no way of knowing whether the patient will fall into the 90% or the 10%.

    Extrapolate that known inability to predict in purely physical matters to the nebulous areas of psychological harm and you are left with ‘your guess is as good as mine’ which is probably not something a Judge would find persuasive…

    • I agree that this is not an exact science. What judges are required to do is to make decisions informed by cultural assumptions about the meaning of ‘significant harm’ that would be upheld by most people in society.

      I think the case of the man who insisted on his right to smack his children shows that judges look at risk factors, but also have to make moral judgements. This kind of parenting is widely regarded as unacceptable in society, even though some people might share the father’s views, but judges are the final arbiters of what is right or wrong.

      • John Bolch of Family Lore did a very good piece on this in relation to ancillary relief – the tension that exists between certainty and discretion. With certainty, everyone knows where they stand but you might find that cases don’t fit comfortably into the one-size fits all mould. With discretion, you get a bespoke solution for each individual case, but it can be hard from the outside to predict the outcome.

        Worth a read – I think it has application to this particular discussion

        http://www.marilynstowe.co.uk/2015/03/18/discretion-versus-certainty-by-john-bolch/

      • I personally deplore smacking children. However, I think that as long as Parliament declines to alter the law which says that physical chastisement of children, within set boundaries, is perfectly legal we have no choice but to accept it.

        Social workers are perfectly entitled to believe that Parliament is misguided: what they are not entitled to do is to substitute their own views for those of Parliament.

        I was thumped vigorously for 20 minutes, 2 or 3 times a day, from the age of five onwards. Indeed, I am still thumped vigorously on occasions; I’m due to go into hospital again next week, and physiotherapists still use ‘percussion therapy’. (it sounds better than thumping).

        Parents who believe that smacking children is beneficial for the children have the same motives that the physiotherapists who thump me have. Parents who declined to perform percussion therapy on a small child would run the serious risk of being judged as severely neglectful of their child’s health.

        However much lawyers would like clear bright lines, real life is a lot more complicated; theoretically I should be profoundly traumatised by the brutality of my medical treatment as a child. As far as I can tell, I’m not…

  8. Obviously, the issue of smacking children exposes a clear divide between professionals who believe it is morally wrong and parents who see no harm in it. Currently the criminal law only treats it as an offence if it is serious enough to be deemed an assault.

    In the case of Rotherham v L & Others there was no doubt that the threshold criteria had been met (p 94 lists the reasons) and social workers were commended for their presentation of the evidence. Every effort had been made to engage the father in collaborative work. He had been told clearly what was wrong and what needed to change but had not changed his attitude. It was good to read a case in which social workers demonstrated a clear understanding of the law and I have been surprised about the lack of discussion of the judge’s decision.

    • It seems to me that the judges decision was so blindingly obvious that there isn’t much point in discussing it; the smacking was simply one aspect of the father’s overarching need to control and dominate all around him.

      That is very different to a parent who smacks a child’s hand when said child is trying to insert a fork into an electric socket…

      • Ashamed to be British

        Unfortunately, some judges (I won’t name and shame here, Andrew won’t like it) seem to think it’s vitally important that children (older children) should live in a shared care arrangement between parents, even if one parent has mentally tortured and physically abused these kids and the other parent for many years, until all are now in therapy due to the bullying, controlling, dominating and sheer spite towards all. What do you do with judges like that, especially when the LA are standing in front of him telling him, this is happening and you are not listening?

        I’m pro smack, as I said to the social worker not long ago, there’s smacking/tapping your children (I used the electric socket analogy as it happens) and there’s beating them up, totally different

      • Absolutely. I wouldn’t want to get in the middle of the pro or anti-smacking debate – it blows up very fast. But a smack or a tap as a form of discipline or to emphasise a risk is legal in this country; and beating children to hurt them or to demonstrate power and control is not.

%d bloggers like this: