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Tag Archives: responses to threshold

composite threshold – a living example

 

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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Composite threshold documents – in which, a tightrope is walked

 

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

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

 

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

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

 

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

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

 

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

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

 

East Sussex County Council v BH and Others 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B57.html

 

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

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

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

 

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

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

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

 

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

 

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

 

And the composite threshold document then becomes.

 

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

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

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

 

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

 

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

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

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

 

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

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

 

For example, here are three acceptable composite documents.

 

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

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

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

 

(and a fourth, which the allegation is disputed, and the Local Authority agree to remove it from the document.   There are some important issues about whether you’d go for option 3 or option 4 and whether a parents concessions are sufficient – I’ve written about it here  http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/view-from-the-foot-of-the-tower-horse-trading-and-threshold-concessions#.VWa9FEY1Ouc)

 

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

 

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

 

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

 

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

 

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

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

 

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