Cases on threshold must be supported by stated facts: Court of Appeal
Court summarises principles set out by the President in Re A (A Child)
The Court of Appeal has expressed concern about local authorities’ lack of precision in pleading that the threshold criteria have been met in care proceedings. Lord Justice McFarlane, giving the main judgment in Re J (A Child)  EWCA Civ 222, said that he expressly welcomed and endorsed the importance that the President of the Family Division, Sir James Munby, ‘has attributed to the need for there to be linkage between the individual facts relied upon [by a local authority] and the requirements of s 31 of the Children Act 1989’. In Re A (a child)  EWFC 11 the President had said:
“The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A+B+C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z.”
McFarlane LJ also endorsed the “View from the President’s Chambers (2)” (June 2013), which set out that threshold should state: “what the nature of the local authority case is; what the essential factual basis of the case is; what the evidence is upon which the local authority relies to establish its case; what the local authority is asking the court, and why” in a short, concise document.
In Re J a mother appealed the decision to make care and placement orders in respect of J, an 8 month old boy. The mother was aged 16 when J was born and had spent time, from age 13, in the local authority’s care. She went into a mother and baby foster placement that broke down shortly after J’s birth – proceedings were issued and J remained in foster care.
The parents disputed some of the factual matters relied upon and it was necessary for the judge to evaluate whether the established matters
(a) justified concluding that the threshold criterion of significant harm was met and, if so,
(b) whether the plan for adoption was justified as a necessary and proportionate response.
In this case, McFarlane LJ said, the question of whether this young, immature couple was likely to cause significant harm to their baby required a far greater degree of analysis than it had received from the local authority or the judge. Even if there was a conclusion that threshold was met, there should also have been a similarly thorough and clear analysis of the evidence to determine the welfare outcome.
The only factual matters referred to in the original judgment in the family court were an admitted domestic incident between the parents prior to J’s birth, a domestic incident when clothes were thrown, and the father having a caution for possession of cannabis. The other matters relied upon (lack of parenting role models, dishonesty, failure to engage and emotional immaturity) were in the most general terms. The ‘findings’ did not identify what significant harm the judge found J to have suffered, nor was the type of significant harm that J was likely to suffer.
McFarlane LJ concluded that the judgment in the family court was, “by a wide margin, wholly inadequate”. The Court allowed the appeal and remitted the cases to be heard by a different judge.
Aikens LJ, agreeing with McFarlane LJ, summarised the principles set out by the President in Re A “in the hope that advocates and judges throughout England and Wales who have to deal with these difficult care cases will pay the utmost heed to what the President has said”:
i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.
ii) If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.
iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.
iv) The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.).
v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority. “The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.
vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.
vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.
viii) In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” insection1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent)  EWCA Civ 535.
For the judgment, prefaced by a summary by Ariel Ricci of Coram Chambers, please click here.