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Law for social workers (Part 1)

This piece is aimed at social workers, but it isn’t exclusively for them. Basically, the law has moved very fast in care proceedings since I started writing this blog, and on Twitter yesterday there was a conversation about there not being an easy place for social workers to find out what they now need to know.  So the idea here is two short(ish) pieces that tell you all of the important legal principles and then in part 2, what the specific tests are for each sort of order.

 

None of this is intended to be a substitute for getting legal advice from your own lawyer, it is just a guide to what sort of things the Court is looking for, and what tests they are applying. If you’re very confident about the basics, you can skip to Part 2  (though not immediately, because I am still writing it!)

 

The Acts

 

We all know, I think, that there are two main pieces of legislation involved in care proceedings.

 

The Children Act 1989

http://www.legislation.gov.uk/ukpga/1989/41/contents

 

and The Adoption and Children Act 2002

http://www.legislation.gov.uk/ukpga/2002/38/contents

 

There are a few others that come up occasionally – the Mental Capacity Act 2005,  the Care Act 2015, the Children and Families Act 2014 and various mental health Acts, Housing Acts, if you’re really really unlucky Education Acts.  And of course, the Human Rights Act 1998 permeates everything. In terms of the Human Rights  Act – the big bits that you need to know is that a social worker, as part of the State, owes parents duties under the Human Rights Act – they owe parents an article 6 right to fair trial (which is not limited just to Court, but involves fairness in all decisions) and interference by the State with parents Article 8 rights to private and family life, which can only be done where it is PROPORTIONATE and NECESSARY.

 

Key principles of the Acts

 

  1.  The Child’s Welfare is the Court’s paramount consideration when making any decision – it won’t be the only consideration, but it is the main one.
  2. The Court can only make an order if satisfied that doing so is better for the CHILD than making no order  (the ‘no order principle’)
  3. Any delay is harmful to the child, and has to be justified (the ‘no delay principle’)
  4. The Court should try to make the least serious of the orders available to it, if that will meet the child’s needs  (‘the least interventionist principle’)
  5. There’s a set of guidance of the main issues for the Court to consider when making decisions about children – the Welfare Checklist. Parliament has given us that as a valuable toolkit to reach the right decisions, and you stand the best chance of making the right decisions if you use it.

 

And from Human Rights, the key principles are :-

FAIRNESS  – in all decisions, strive to be fair – take things into account, even when they don’t fit with your hypothesis or initial thoughts, listen to what parents have to say, be honest about what you are seeing, recognise change when it is happening, be willing to consider that you might be wrong. Try to approach the task of working with a family in the way that you would hope someone would work with you if the roles were reversed. Recognise that for a parent, the State can be a scary and powerful force – you might not feel powerful yourself, but be alive to the possibility that that is the way the State can come across. Imagine someone coming into YOUR home, looking in YOUR cupboards, criticising YOUR relationship. It might need to be done, but be aware that it doesn’t feel nice to be on the receiving end.

NECESSITY – is it NECESSARY to do X or Y?  Not just is it helpful or useful or desirable, but did it NEED to be done? And even if it NEEDED to be done, did it NEED to be done in that particular way?

PROPORTIONALITY – looking at what you’re worried about and what you want to do about it, and thinking hard about whether what you want to do is proportionate to the worries that you have.

All of those principles really boil down to being a REASONABLE person – if you are reasonable, and try to do the job in a REASONABLE way, the Court’s are more likely to be receptive to what you’re saying and you are going to be less exposed in the witness box than someone who goes around like a bull in a china shop.

 

The threshold criteria

 

In order for the Court to make an Emergency Protection Order, or a Care Order or Supervision Order, or Interim Care Orders or Interim Supervision Orders, they need to be satisfied that the threshold criteria is met. If there’s no threshold criteria, the Court CANNOT make the order.

The burden of proof (who has to prove it) is on the Local Authority. It is for the Local Authority to PROVE that the child has suffered significant harm, or is at risk of such harm, NOT for the parent to prove that the child isn’t.

The standard of proof (how sure does the Court need to be) is the BALANCE OF PROBABILITIES.  If a Court thinks that something is MORE LIKELY THAN NOT to have happened (in percentage terms 50.000001% or higher) then that is sufficient.  If a Court thinks that the LA has NOT proved that, even if there’s a 49.99999999% chance of it having happened, then in law it did NOT happen. When it comes to factual issues, the law is binary – if it is MORE LIKELY THAN NOT to have happened, then it happened, if not, it DIDN’T.  And if it is exactly 50-50 (which doesn’t happen often, but it HAS happened) then the burden of proof means that the LA failed to prove it was more likely than not, so it DIDN’T happen.

The threshold criteria itself

 

s31 (2)A court may only make a care order or supervision order if it is satisfied—

(a)that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)the child’s being beyond parental control.

 

The likely to suffer has been quite tricky to resolve over the years – basically, if you’re going to say that a child is LIKELY to suffer significant harm, you need to :-

 

(a) Prove some facts

(b) Prove that those facts mean that there is a risk of significant harm

(c) Prove that it is MORE LIKELY THAN NOT that the risks involved ‘cannot sensibly be ignored’

 

So you don’t HAVE to show that the risk is MORE LIKELY THAN NOT to materialise.  Sometimes, if the level of the possible risk would be very serious, there can be a lesser chance of it happening as long as there is a FACTUAL basis for saying that the risk exists and it cannot be ignored.

 

Case law

The Acts themselves only give you so much – most of the legal arguments are about how to intepret those Acts – what precisely does such and such a word mean, what has to be taken into account when deciding whether such and such applies. Rather than different Courts across the country having the same arguments over and over and coming to different decisions in different places, when an important point of principle is decided  (for example – WHEN does the threshold criteria have to be satisfied? When proceedings were issued? When they finish? What if the child was in foster care for 2 months before issue – the child wasn’t at any risk in that placement…)  a senior Court – the High Court, the Court of Appeal, the Supreme Court decides a case that deals with that point, and that’s the answer from then on  (in this example, threshold has to be satisfied when the Local Authority ‘took protective measures’  – that could be by issuing, or it could be by a section 20 placement or written agreement)

The next time THAT issue comes up, the Court is able to say ‘well, that’s been decided now, there’s a PRECEDENT for it, and we’ll follow that’.   The Children Act has been around for over 25 years and you would think that all of these technical and interpretation questions would have been sorted out years ago now, but they still keep coming, and occasionally the interpretations change or shift a bit.

For basically ALL of the things that a social worker might want to do, or ask the Court for, knowing what the Act itself says is just the tip of the iceberg. The really important information, and the wording that you are working to is set out in case law.  And as I said, it changes.

 

Part 2 is going to tell you what the current case law says about the various tests – and I’ll keep this up to date when it changes. The law is moving quickly at the moment, particularly in relation to adoption.

 

 

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

 

If you enjoyed the piece, or the blog, please visit the website about my book, and if it takes your fancy, pre-order it.  I’m 85% of the way to getting it published now, thanks to loads of support and help from very cool people. Be like Fonzie and be cool too.

 

https://unbound.com/books/in-secure

 

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“You can’t handle the truth!”

(An imaginary judgment about an imaginary situation, in homage to the incomparable A P Taylor’s “Misleading cases in the common law”)

This is an application brought by X County Council under section 31 of the Children Act 1989, who seek Interim Care Orders in relation to two children, a boy who we shall call A, who is aged 7 and a girl who we shall call B who is aged 5.   The Local Authority seek orders from the Court permitting them to remove A and B from their parents and to place them in foster care. Further, as I shall consider in more detail later, the Local Authority have placed the Court and the parties on notice that should their application be granted, they would not be able to accommodate the parents wish for the children’s religion to be observed in foster care. The parents contest the application and contend that the section 31 threshold criteria are not made out, that the test established by the authorities for removal of a child is not made out, and that even if the Court were to be against them on both of those issues, that the children’s religious practices should be observed in foster care. The children’s Guardian confesses that she has found this an extremely difficult case with deeply unusual features, but on balance supports the Local Authority case.

It is common ground that these children are happy, that they are doing developmentally well, that they attend school and nursery and have positive reports from those establishments, that they are properly fed, that their home conditions are clean, tidy and with suitable toys for the children; further that they are not mistreated either physically or emotionally and that they receive good quality parenting from parents who love them very dearly. The parents shun the use of tobacco, alcohol and drugs. There are many Judges who would gaze enviously at this litany of praise for parents within care proceedings before gazing sternly at the Local Authority who placed the application before the Court.

However, this particular application does have a feature which leads the Local Authority to suspect that the children are at risk of significant harm; they accepting that there is no evidence that the children HAVE suffered significant harm to date.

The parents in this case moved to the United Kingdom from the state of Arkanas in the United States. They are both committed to their faith, which they have practiced for their entire lives, including when they were children in Arkansas.  Their faith is that of snake-handling.

The Court has heard evidence from senior figures within the Snake-Handling faith, and this evidence has been sufficient to make it plain that the faith is legitimate and recognised, albeit, as the parents concede more of the margins than of the mainstream.  The faith arises from quotations from the Bible:-

And these signs shall follow them that believe: In my name shall they cast out devils; they shall speak with new tongues. They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover. (Mark 16:17-18)

Behold, I give unto you power to tread on serpents and scorpions, and over all the power of the enemy: and nothing shall by any means hurt you. (Luke 10:19)

In terms, those who practice the snake-handling faith believe, and it is a central tenet of their belief system, that they may handle snakes and drink poison and that it will not harm them as they are protected by God.

The parents in this case have made it plain, and their evidence on this aspect was, I find, credible, that they do not indulge in the consumption of poisons; as this was not the practice in the Church where they practiced their Faith.

They were, however, candid, that their religious practice is to pray and celebrate the words of the Bible whilst handling  live snakes. They gave evidence that they undertook this ceremony several nights per week, a minimum of three times and as many as five nights per week. The ceremony and handling of the snakes would be for a minimum of ninety minutes, and could on occasion last considerably longer.

Dr Parsel, the expert herpetologist who gave helpful and invigorating evidence confirmed that some of the snakes kept by the family are venomous, and that their bite would be harmful to humans, and in rare cases if medical attention were not sought, could be fatal. She indicated that she would consider the risk of a bite having serious consequences requiring for example an overnight  hospital stay to be at around 30% and the risk of a bite being fatal (if medical attention were sought) to be at around 5% – if medical treatment were not sought for a venomous bite, the consequences would be more severe.   In relation to the non-venomous snakes, her evidence was that a bite would be painful, comparable to the bite of a medium-sized dog, but more of a ‘nip’ than something that would necessarily require medical treatment.

She freely confessed to not have any particular expertise in whether snake-handlers were immune to pain or consequence from receiving bites, but did refer the Court to documented examples of some fatalities emerging from the practice. I note, in relation to this, that the snake-handling church treats such aberrations as being evidence of a lack of genuine faith in the religion, rather than a failure of the religion itself.

She was understandably cautious about estimating the possibility of a snake inflicting such a bite, but did accept in cross-examination by those representing the parents that the risk of a bite being inflicted was considerably reduced where the persons handling the snake are respectful, gentle and not apprehensive or scared.

The medical records of both parents, in this country and those obtained from America have bourne out their account that neither of them have received medical treatment for snake bites and of course, both are here to tell the tale.

They both gave evidence to the effect that being bitten by the snake is very rare in the ceremony, and that it is not the intention of the ceremony to provoke or promote a bite from the snake. I accept the parents’ evidence in this latter regard, but am more cautious about the rarity of the occurance.

Their further evidence, that if they were to be bitten, it would have no effect as they are protected by God and their faith is something that the Court have to be more cautious about. It would probably be best expressed in this way, that the Court is satisfied that the parents genuinely believe this to be the case, that they believe this as a fundamental part of their religious faith and that they are not knowingly placing themselves in what they consider to be harm or jeopardy.

The Court further accepts the following, as drawn from the parents’ evidence:-

1)    That they would intend for the children to become involved in the religious practice, and to handle the snakes, some of which are venomous.

2)    That the older child has already, under careful supervision been involved in the handling process; but not with the venomous snakes

3)    That the younger child has observed the ceremony and worship

4)    That both of the children have been shown how to handle the snakes with care and dignity

I now have to consider whether  there is, on the balance of probabilities a likelihood that significant harm may arise. For today’s purposes, the section 38 criteria apply and the test is whether there are reasonable grounds to believe that the children have suffered or would be likely to suffer significant harm, such harm being attributable to the care given or likely to be given not being what it would be reasonable for a parent to provide.

The risk of harm, as outlined by the Local Authority is as follows :-

(a)  that there is a risk of the children sustaining a bite injury from a non-venomous snake, which would be painful, on a par with a ‘nip’ from a medium sized dog, and which would be likely to hurt a child for several minutes but not require medical attention

(b)  that there is a risk of the children sustaining a bite injury from a venomous snake. This would have the same degree of pain as above, accompanied by a feeling of nausea and light-headedness, which would probably last for an hour or two  (if the anti-venom serum were administered immediately) and might require hospital treatment.

(c)  That if the parents did not, as a result of their religious belief that the children would suffer no ill-effect, obtain medical treatment, the consequences could be much more serious and there is a risk of a fatality

(d)  The Local Authority add that although the risk of either incident occurring might be said to be low for each ceremony (though they took pains to point out that they did not necessarily accept this) the Court were entitled to take into account that exposure to a low level of risk several times per week, over the children’s minority could give rise to a cumulative risk which would perforce be higher.

The parents respond in the following way:-

(a)  the children would feel no pain from the bite of non-venomous snakes, as is clear from their faith

(b)  the children would feel no pain or ill-effects from the bite of a venomous snake, as is clear from their faith

(c)  thus, no harm would result from the children demonstrating their faith and engaging in their legitimate act of worship

They accepted wholly that a parent who were not a snake-handler and protected by their faith, who gave venomous snakes to a child, would be acting in a way that it would not be reasonable to expect from a parent; as such a child would sustain a painful injury, and I myself would not find it a stretch to make such a finding.  (They do not claim that venomous snake bites are harmless to the population at large, and if I were required to find that being bitten by a venomous snake would be generally a bad thing for the average child, I would make such a finding)

I find myself in difficult waters here. I would have no difficulty whatsoever in finding that a parent who allows a child to handle venomous snakes for long periods, on numerous occasions per week, would have a child who was at risk of significant harm.

The parents’ case is, in part, that no harm could arise, because of the protection that their faith offers them and their children.

All parties accept that there is some risk (although they differ as to the level) that the children could be bitten by a snake whilst handling it. The Local Authority say that there would be consequences if so, which would constitute significant harm, the parents say that there would be no such consequences.

To reject the parents’ conviction out of hand would draw the Court into territories of ruling that an individual’s faith is incorrect in fact.  The accepted fact that this particular religion is followed by a relatively small group, rather than having a groundswell of popular opinion does not mean that I should discount their beliefs. There might be many who would regard their beliefs as nonsense, but the same could be said of those who believe that God sent his son to earth to die for our sins.   Many generations of philosophers and theologians have grappled with these weighty issues without necessarily coming to a conclusion; and it would certainly be wrong of me to attempt to do what Aquinas, Bertrand Russell and Descartes could not and put a full stop under whether a particular religion is true or misguided.

I have had to consider whether I need, to determine, on the balance of probabilities whether the Local Authority is right (and thus that the parents faith is misplaced) or vice versa.

Looking at the law, it is clear that what I must consider, in weighing up “likelihood”  is the construction set out in Re H and R 1996  “the context shows that in section 31 (2) (a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”

With that in mind, I am able to determine, with confidence, that there is a real possibility that cannot sensibly be ignored that these children, might over cumulative exposure to snakes (some non-venomous, some venomous) be bitten by the snakes and suffer adverse harm as a result.

I do not, when determining this, need to set out that the risk of this occurring is greater than 50%, and therefore do not need to determine that the parents belief is objectively true, or objectively false, rather that there is some margin for doubt.  I am absolutely plain that I could not rule that one could be absolutely categorically certain that the children of snake-handlers would suffer no harm if they were bitten by a snake, and thus I have to accept that there is a possibility which cannot sensibly be ignored that they might be.

I further accept that the consequences of a bite could constitute significant harm if consequences were to arise, and that therefore the threshold criteria as set out in section 38 of the Children Act 1989  are made out.  I do not believe that, having made that determination, there will be a dispute as to the section 31 criteria at final hearing, the same facts coming to bear.

Turning now to the test for removal, I shall not recount the plentiful authorities, as it is common ground between all of the parties that a satisfactory construction of the test would be “is the harm, or risk of harm that the child would suffer or be at risk of suffering proportionate to the removal of the child at interlocutory stage”

I am mindful here that having effectively established that the religious practice of snake-handling gives rise, if children are participating to a likelihood of significant harm, there is a risk of developing a position whereby the Court determines that effectively all parents who are snake-handlers and wish to bring up their children in that faith are not able to safely care for their children.

That in turn, would effectively be the Court saying to a parent that they do not have the right to practice their religion AND simultaneously parent.  Whilst snake handling is a relatively small religion, practised in some forty churches, it is nonetheless a religion. I am reminded of Martin Niemoller’s famous statement “First they came for the communists….”

Considering the body of authorities where the Court have had to consider the extents to which the State can interfere with someone’s religious practices, I would distill this concept  – that any person is free to believe whatever religious principles they wish and that the State should not interfere with that belief, but that where the exercise of such beliefs has an adverse, or potentially adverse impact on the rights and freedoms of another, the State may intervene and must consider whether such intervention is necessary and proportionate.

I have attempted to apply that principle throughout this case – it is perfectly legitimate for these parents to believe that they, and their children can safely handle snakes as part of their religious practice – it is the point at which they propose that the children actually do handle snakes which leads to the Court needing to become involved. That crosses the line from belief into action.

I have obtained some useful guidance from the Court of Appeal in Re R (A minor) (Residence : Religion) 1993 2 FLR 163 where it was held that it is no part of the Court’s role to comment on the tenets, doctrines or rules or any particular section of society provided that these were legally and socially acceptable, but that the impact of tenets and rules on a child’s future welfare was one of the circumstances to be taken into account.  I have endeavoured to approach the case in that manner.

I have to consider that the parents Article 9 right to freedom of religion, would be engaged. Whilst this is a qualified right, and the Court would be entitled to prescribe those rights if it were necessary in a democratic society for the protection of the rights and freedoms of others, the Court should be reluctant to curtail someone’s religious expression.

Speaking for myself, I would feel an enormous sense of disquiet in being the Judge who set a pebble rolling down a slippery slope; whilst I cannot think at present of other religions who might effectively be outlawed to parents I would not wish to set that particular precedent.

In relation to this issue, I have had to consider whether it is possible for safeguards to put in place so that the risks to children I have ruled cannot sensibly be ignored in snake-handling can be managed, such that the child can remain with the parent and that the family can have the freedom to observe their religious practices.

I have a proposal in mind, which I shall outline, and I propose to adjourn the hearing briefly to allow the parents to consider that proposal.

I would not rule that the snake-handling faith in all circumstances is dangerous to children, but I am prepared to decide that  the snake-handling faith, where children are participating in it, requires robust safeguards to be in place in order to prevent the likelihood of significant harm that otherwise would justify the intervention of the State in removing the children to alternative accommodation.

On that basis, I indicate that I would be minded, if the parents accept the safety proposals, to make Interim Supervision Orders, and for there to be monitoring of the adherence to these safety proposals between now and final hearing. If the proposals are agreed but the Court is later presented with evidence that they have not been adhered to, the Local Authority are likely to find the Court much more amenable to the application they have made today. They would be, as the saying has it, pushing at an open door.

If however, the parents are not able to bring themselves to accept the safety proposals, then my ruling will be that the risk of harm that the children are exposed to in the absence of safety mechanisms, is such that the removal of the children is a proportionate response to dealing with it, and would be minded to make the Interim Care Orders.

In the event that I make Interim Care Orders (and I would hope not to need to)  I would not be minded to invite the Local Authority to make arrangements pursuant to section 22 (5)  (giving due consideration to the child’s religious persuasion) , being satisfied that they are extraordinarily unlikely to find foster carers who are snake-handlers or to find foster carers who are willing to allow the children to handle snakes (even in a carefully prescribed environment or regime)

This also requires me to consider s 33 (6) of the Children Act 1989  “while a care order is in force with respect to a child, the local authority designated by the order shall not – (a) cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made ‘

And it could be argued that any form of placement other than with snake-handlers would be in breach of this, even if the carers had no religious beliefs  (it is hoped that at final hearing, one would not need to cross-examine Richard Dawkins as to whether atheism or agnosticism constitutes a religious persuasion in the negative)

Thankfully, Justice Baker rides to my rescue in that regard in the case of Re A and D (Local Authority : Religious Upbringing ) 2010 1 FLR 615  involving a child who had been brought up by Muslim parents but the mother reverted to Catholicism after they separated (it being largely impossible to raise a single child as both a Muslim and a Catholic)  and the Court determining that section 33(6) is subject to the overriding duties on the Local Authority under section 22 (3) to safeguard and promote the child’s welfare when they are caring for him.

I am satisfied that it would not be reasonable to expect the Local Authority to provide the children with live exposure to snake-handling in their foster placement, though the children should be educated about their religious faith without practically carrying it out. That would be sufficient to ensure that they are not in breach with either s 22 (5) or s 33(6).  As I have said, I would hope that the issue of these children being cared for by the State does not arise.

My proposals, which I invite the parents to consider very carefully are as follows :-

  1. When handling snakes as part of their faith, the children shall not handle venomous snakes until such time as the Court can review this safety package
  2. The children shall be supervised by adults at all times
  3. In any event, the parents shall obtain anti-venom serum suitable for treatment of bites from the venomous snakes that they own
  4. The herpetologist having identified the symptoms of snake bite from the venomous snakes that the parents own, the parents shall undertake to administer that anti-venom serum immediately if they observe either of the children to be bitten by a venomous snake; or if they observe these symptoms in the children, and to seek medical attention for the children in either event
  5. This is by way of a placatory mechanism, and does not reflect adversely on the parents’ deep-seated conviction and belief that the children would be unharmed by snake bites. It is simply their recognition that the State has to manage that degree of risk that cannot safely be ignored by the Court that the children would not be unharmed by snake bites, regardless of their faith.
  6. The parents accept, as a long-term proposal, that notwithstanding their faith and conviction that the children would be unharmed by handling snakes and would not require any medical intervention, they will keep this safety net in place until such time as the children are adjudged to be competent to make informed decisions about the risks themselves [by which I would contemplate their later teenage years], or the Court rule that the safety provisions may be relaxed.

I would refer the parents to the decision of the High Court in Re W (A Minor) 25th November 1991, involving parents of a child who were Jehovah’s Witnesses and could not consent to a blood transfusion.

In that case, the order was phrased “Being Jehovah’s Witnesses, the parents do not and cannot approve the order hereinafter stated but recognise the power of the Court to direct the same and cannot therefore maintain any objection to this order”

I would ask the parents to go further in this case, but I think a preamble to the order that  “It is accepted by all parties that the parents are snake handlers and profoundly believe that they and their children would receive no harm or damage from handling snakes as part of their religious practice, but recognise the authority of the Court to make decisions about children who are deemed to be at risk of harm, and offer the following assurances to ensure that during the children’s minority, they are protected from harm that might arise from snake-handling, even if that risk is no higher than one which the Court cannot sensibly ignore”   would be a sensible resolution to the religious quandary that the parents find themselves in.

what can the past of section 31 tell us about the future and the Family Justice Review?

 

 

No plan ever survives contact with the enemy

 

 

                                      Helmuth von Moltke the elder

 

 

 

I’m fairly sure that I’ll be writing about the Family Justice Review and their proposals on many occasions, but I just wanted to set aside any ideas for a moment about the merits of the ideas within it, or how practical they are to implement, and just to take the main headline idea and imagine how it will be once exposed to lawyers in the field; using the history of the threshold criteria and the litigation around that as an example.

 

I’m sure everyone who has done any public children work knows that the test for whether the Court can consider making orders that give the State (in the form of Social Services/the Local Authority) powers about children,  is the ‘threshold criteria’ set out in section 31 of the Children Act 1989.  (It is worth noting that the threshold criteria being met doesn’t mean that an order will be made or what it would be, but rather that it allows to proceed to the next stage of considering what is in the child’s welfare – no threshold means the State has to go away)

 

Section 31 (2) says “A Court may only make a care order or a supervision order if it is satisfied  –

 

(a)  that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)  that the harm, or likelihood of harm, is attributable to –

(i)            the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)          the child’s being beyond parental control  “

 

 

That appears to me to be a solid piece of drafting– positively wonderful by modern standards (where half of the relevant bits would be defined in Schedule 2 and another key element being with reference to other sections). It is self-contained – everything you need to know is set out in that one section, rather than cross-referring, and using everyday language and concepts.  [You can see, for example, that paraphrasing it as ‘the State have to prove that you’ve caused your child harm, or will probably cause them harm in the future, by not doing what the State expects of you as a parent’  distils the essence of it, without getting too far away from the concepts as stated]

 

Now, following contact with lawyers and thirty years of cases which have unpicked within it every single word other than ‘child’, the actual unspoken and unwritten, but legal meaning of the section is as follows, [original in bold, additions in italics]

 

 

A Court may only make a care order or a supervision order if it is satisfied [on the balance of probabilities, with the burden of proof falling upon the applicant Local Authority]   –

 

(a)  that the child concerned is suffering [at the time of the hearing of the application for the care or supervision order, or at the time when the local authority initiated the procedure for the protection of the child concerned provided those arrangements have been continuously in place until the time of the hearing – to cover the situation where a child is voluntarily accommodated before the application is made and would no longer be currently suffering significant harm at the time the application were made, it is possible to consider later acquired information as to that state of affairs at the relevant date but not evidence of later events unless these events can be used to show the state of affairs at the relevant date ] , or is likely to suffer [likely meaning having a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case, the seriousness of the allegations or the consequences having no impact upon the standard of proof to be satisfied,  and the facts upon which that prediction of likelihood is based having been proven to the balance of probabilities to have actually occurred, it not being sufficient that those facts may have occurred or that there is a real possibility that they did, and establishing that one child did suffer significant harm does not automatically establish that another child of the same family is likely to suffer significant harm, note also that the Court is not limited to looking at the present and immediate future but may look at the long-term future], significant harm [the harm must be significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose. It must be significant enough to enable the court to make a care order or a supervision order if the welfare of the child demands it; society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent, it is not the province of the State to spare children all the consequences of defective parenting; the harm must be more than commonplace human failure or inadequacy, where considering whether a child’s health or development has been significantly harmed one has to compare with that which could be reasonably expected of a similar child; and

(b)  that the harm, or likelihood of harm [see everything above], is attributable to

  1.     the care given [which can go beyond physical care and includes emotional care] to the child, or likely  to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him [it is not necessary that there be culpability on the parents part who may be trying their hardest yet failing to reach the required standard of care and thereby causing significant harm, also this test can be met in a circumstances where one parent has caused significant harm and the other has not, or where a parent and a person other than a parent, such as a childminder, cannot be excluded from having perpetrated an injury to the child where the identify of the perpetrator cannot be established on the balance of probabilities even where there is only a possibility that the parents themselves were responsible for injuries that the child had sustained,  regard may also be had to whether the failure of a local authority to provide the necessary statutory support has contributed to this]; or
  2. the child’s being beyond parental control [this must have caused the significant harm or created the risk of such harm, there is no requirement to show some failure on the part of the parent in order to establish that a child is beyond parental control, and parental control is something which will no doubt vary with the age of the child]

 

 

and we have gone from an 87 word definition to nearly 700  words, nearly an eightfold increase; and from a definition of a vital concept which could be read (albeit with some throbbing about the temples) by an ordinary person  to one which is to all extents and purposes unintelligible.

 

 

The point is, that these were all ‘clarifications’ or glosses to the existing statute that were required, and which arose in the context of individual cases where those shades of meaning were vitally important.

 

I have particularly fond memories, having lived through it of the changes to “likely” where there was a period when one couldn’t tell from one month to the next whether a sexual abuse allegation was capable of meeting the threshold or not. Frustrating for the day to day job, but fascinating for the inner-law-geek.

 

This was largely through the H&R case which changed tack at various stages of the process until the House of Lords delivered a final decision in 1996.  During that lengthy process, the sands were shifting as to whether the law was going to import an additional test in accordance with David Hume’s philosophy that ‘extraordinary claims require extraordinary proof;  or in the gloss put on it by lawyers ‘that where the allegations are very serious, a higher standard of proof is required’, this eventually morphing into ‘for very serious allegations, the difference between the criminal standard of proof and the civil standard is, in truth,  largely illusory this last commonly asserted maxim, derived from some judicial remarks in firstly a sex offender order, and secondly an ASBO case took a second House of Lords case in Re B  2008 to finally resolve once and for all  that neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied.

 

 

So, and here is the million-dollar question, how robust can a six month cap on the duration of care proceedings be, even if it is put into statute?  The fact that the FJR and the Government response both talk about there being a need for Judges to be able to make exceptions to the six month cap where the welfare of the child requires it, means that a  clause that says :-

 

Section 1   “The duration of care proceedings shall not, under any circumstances, exceed six months, the duration being calculated as being from the date that the proceedings are issued to the making of a final order”

 

cannot be what is being considered, and anything with more fluidity than that is just going to be litigated with vigour, to try to expand the definitions and categories and terminology that applies to the exceptions, and in the meantime, there will be a temptation to instead fudge the 6 month cap by saying that in the circumstances of this particular case, the child’s welfare requires additional time for the issues to be determined.

 

We are, after all, a group of professionals who spent from 1989 to 2008 arguing about what the word ‘likely’ meant, and aren’t necessarily done with it quite yet.