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Tag Archives: concessions in threshold document

Pitiless detail

Posted on August 1, 2022 by suesspiciousminds

This is an interesting High Court decision delivered by Mostyn J, about the need (or not) for a fact finding hearing when the parent concedes that threshold is met.

That’s always a bit of a vexed question, so any case on the point is always interesting.

In this case, the mother was in agreement that her child, her second child, be made the subject of a Care Order and a Placement Order and agreed that threshold was crossed. The Local Authority considered that the threshold concessions she had made were ‘anodyne’

Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought

In very broad and overly-simplistic terms, the mother was accepting a lot of described content in the threshold but not accepting that it amounted to FII or that she was a person who had or was likely to inflict FII (Fictitiously Induced Illness , or where a person manufactures medical symptoms in another so that they have to receive medical treatment)

The Local Authority sought a 5 day fact finding hearing.

Mostyn J considered the general legal principles and the specific family law principles, arising from two Court of Appeal cases – Oxfordshire County Council v DP & Ors [2005] EWHC 1593 (Fam) and Re H-D-H and C (Children: Fact-Finding) [2021] EWCA Civ 1192, [2021] 4 WLR 106 

The fundamental difference between the two cases is that Oxfordshire did not have within its list of factors to consider the ‘different child’ issue (i.e there’s no direct advantage for Child A of resolving the factual background, but if the parent goes on to have another child, Child B, there might be advantage to having that factual dispute resolved rather than having to go back and litigate the contentious issues some time later). As Mostyn J points out, that is because those issues had been specifically litigated in earlier authorities and explictly rejected – that the case is dealing with Child A only, and should not look into the future about a Child B who does not even exist.

Wheres Re H-D H and C does specifically include the ‘different child’ issue as a reason why a fact finding might be necessary

“The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered.”
(Emphases added)

(That also includes what Mostyn J categorised as the ‘whole truth’ issue – the benefit to Child A of having the fullest possible picture of what had or had not happened to lead to them being in care or adopted)

Mostyn J considered that as the proper relevant authorities had not been cited in Re HD H and C, that he should consider himself bound by Oxfordshire, but not by Re HD H and C which was possibly an erroneous expansion of the authorities in a way that conflicted with them whilst having not grappled wiht them.

Mostyn J h says that a Judge dealing with this sort of issue should stay strictly within Oxfordshire’s guidance and will not go wrong, and that if Re HD H and C is to be considered the guidance in that needs to be reworked, which he helpfully does at para 37 (all bold is Mostyn J’s addition)

“(i) When considering the welfare of the child, the effect on the child’s welfare of an allegation being investigated or not is relevant.
But the significance to the individual child of knowing the whole truth cannot, of itself, be a main purpose of the investigation.
(ii) The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases.
(iii) The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument.
(iv) The evidential result relates only to the case before the court.
Its potential utility in a future case about another child cannot, of itself, be a main purpose of the investigation.
Similarly, the public interest in the identification of perpetrators of child abuse cannot, of itself, be such a purpose.
(v) The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met.
(vi) The impact of any fact-finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children.
(vii) The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date.
(viii) The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court’s decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality of the case.
(ix) Above all, the court must be satisfied that a fact-finding hearing is necessary.
This means that the court must be satisfied that the findings, if made, would produce something of importance for the welfare decision.”

Mostyn J went on to consider the facts of the case.

The threshold document sets out in pitiless detail why it is said that VW poses a risk of serious harm to IW were he to be entrusted to her care. In summary it alleges:
A: VW has experienced abusive and neglectful parenting throughout her childhood.

B: The resulting mental and emotional instability has resulted in an itinerant unstable lifestyle, and emotional and mental health issues.

C: VW has extensive, serious and enduring psychiatric, psychological and emotional difficulties. She suffers from: (a) somatic symptom disorder, (b) factitious disorder, and (c) malingering.

D: VW has an extensive history of deliberate self-harm spanning from the age of 12.

E: Since the age of 13, VW has frequently and repeatedly been detained in secure accommodation.

F: VW hoards medication and conceals sharp implements so she can continue to deliberately self-harm, even whilst under hospital care or detention.

G: In December 2020 whilst detained under section 2 of the Mental Health Act 1983, VW floridly self-harmed.

H: From her early teenage years VW has abused alcohol and various illicit substances including cocaine, crystal meth, magic mushrooms, ecstasy, and cannabis.

I: VW has an extensive history of presenting at numerous hospitals throughout the country with wide-ranging complaints as reflected in nearly 20,000 pages of medical records.

J: VW falsifies signs and symptoms in order to mislead and manipulate medics.

K: VW is dependant on opioids.

L: On repeated occasions during her pregnancy with IW, VW deliberately and surreptitiously self-administered insulin in order to manipulate her blood sugar levels and thereby factitiously induced a state of hypoglycaemia.

M:. VW’s psychiatric and psychological difficulties and behaviours are enduring, and by virtue of them, any child placed in her care is at risk of serious physical and emotional harm.

N: VW’s first child, AW, was the subject of care proceedings in which it was found that AW’s life-threatening collapse on the 28 January 2017 was consistent with dihydrocodeine poisoning and that the dihydrocodeine present in AW’s system was due to VW, who gave dihydrocodeine to AW.

O: VW’s vulnerability and underlying issues have led her to form a series of damaging, controlling, emotionally and, on occasions, physically abusive relationships with men and to place herself at risk.

In her witness statement of 15 July 2022 VW made extensive, but far from complete, admissions in relation to the contents of the threshold document. Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought”.
I emphatically reject these descriptions. VW’s admissions were extensive. She admitted a large number of the concrete facts alleged against her. So, for example, she accepted that she had self harmed by cutting herself; by swallowing razor blades; by overdosing even when in hospital; by tying ligatures around her neck; by threatening to jump off bridges or in front of trains; by self harming in relation to food; by abusing cocaine; and by her extraordinarily high number of hospital attendances. She accepted that from a young age she was involved in abusive relationships. She accepted the findings made by Recorder Bugg. She accepted that she cannot care for IW.
Mr Garrido QC described her admissions as accepting the underlying facts but disputing the professional label. Therefore, while she admits much of the conduct that led the experts to conclude that she suffered from FII, she disputes that diagnosis. In my opinion to have a state trial about professional labelling or nomenclature would be the height of futility.
In the Stockport case Thorpe J refers to the very considerable emotional and psychological cost to parents in accepting advice that leads to the conclusion of the case without a hearing. I can completely understand VW’s instinctive reluctance to condemn herself as being a sufferer of mordantly described psychiatric conditions. In my opinion it was brave and sufficient for her to make the admissions that she did in relation to concrete facts. Those concrete facts have been analysed by the experts and they have rendered their diagnostic opinions, which are uncontradicted

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composite threshold – a living example

Posted on June 20, 2015 by suesspiciousminds

 

I wrote about the difficulties of composite thresholds here https://suesspiciousminds.com/2015/05/28/composite-threshold-documents-in-which-a-tightrope-is-walked/  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  http://www.bailii.org/ew/cases/EWFC/OJ/2015/B73.html  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.

 

 

 

 

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