The test for making interim orders under the Mental Capacity Act is similar (but not quite the same as) the threshold test for making interim care/supervision orders under the Children Act 1989
Section 48 provides:
“Interim orders and directions
The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if:(a)
there is reason to believe that P lacks capacity in relation to the matter,(b)
the matter is one to which its powers under this Act extend, and(c)
it is in P’s best interests to make the order, or give the directions, without delay.”
s38(2)A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).
The difference between the two being that the threshold for interim care/supervision orders is that the Court is ‘satisified’ that there are ‘reasonable grounds for believing’ rather than the Mental Capacity Act formulation of ‘there is reason to believe’
Up until now, no Court has quantified in percentage terms what ‘there is reason to believe’ is – Courts have just decided whether based on the evidence presented at an interim stage, the Court considers that there’s reason to believe in s48 MCA cases and whether they are satisfied that there are reasonable grounds to believe in s38 Children Act cases.
It hasn’t been considered necessary until now for a Court to unpeel those tests into the percentage degree of certainty that a Court has to have in order to make that decision. Until now.
A Local Authority v LD and Another 2023
If you had “Mostyn J” in your sweepstake, congratulations!
Mostyn J, as always, carefully sets out and draws on the jurisprudence to derive his decision, which is this:-
‘rather higher than 25% or at odds shorter than 3-1 (but not odds on)’
Now, for the time being, that’s certainly the test for section 48 Mental Capacity Act cases. I can’t say whether this principle is going to be imported into s38 Children Act cases.
The wording is, as I’ve highlighted above, different for s48 MCA and s38 Children Act 1989, although one of the sources that Mostyn J draws on in the judgment says this:-
Spectrum: In particular, it is possible to identify the two ends of the spectrum. A requirement to “suspect” something before acting is the lowest level, and a requirement to “be satisfied” is the highest.”
My suspicion is that this case just got put on a whiteboard somewhere at the Court of Appeal and will be tidied away in due course. See recent posts… But who knows?
For my part, I think a formulation that a Judge is satisfied that there are reasonable grounds to believe that the threshold criteria are met pending a full resolution of the case is cleaner and less subject to quibbling and challenge that a Judge declaring in Court that they have concluded that there is a 29% probability that the Local Authority will demonstrate to the burden of proof at a later date that the threshold criteria is satisfied.
“Reasonable grounds to believe” or” reasonable grounds for believing” ….;;
Unbelievable that the fate of babies and young children should lie with judges all interpreting their beliefs and justifications differently before issuing interim care orders etc .
Surely the criteria should be whether or not the child has actually suffered significant harm or not as a result of negligence or assaults by the parents.
That is how the law used to be before the infamous Children Act of 1989 and that in my opinion is how it should be now.Judges and social workers who claim to be able to predict the future and who split up families for “risk of future emotional harm” should think again before causing misery to thousands of innocent children.Future predictions are nearly always wrong………