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View from the Foot of the Tower: Horse-trading and threshold concessions

Date:7 MAY 2015
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Care Lawyer
Rather like the last piece, there’s something of a similarity between politics and negotiations in family law – last time it was that promises in manifestos and promises in care plans can have less solidity than one might suppose. This time it is about the negotiations on threshold criteria, something to which the term ‘horse-trading’ gets used almost as much as in political discussions about what might happen after an election that doesn’t deliver a majority.

I was somewhat curious as to why horse-trading had such pejorative connotations (you never hear anyone say ‘I am looking forward to beginning the horse-trading on this issue’ or ‘It is right that the two of us should engage in horse-trading for the benefit of the country’). Apparently it is due to the difficulties, when buying a horse, to know exactly what the quality of said horse will be, and thus those involved in the practice have a reputation of dishonesty and sharp practice.

In care proceedings, the local authority has to draw up a document (now limited to 2 pages) setting out how they say the s 31 threshold criteria are made out. The parents then have an opportunity to respond to this. Generally, the court expect that the local authority and the parents will come to an agreement. First, as to whether or not the threshold is met. If so, secondly, what the agreed details are that will go into a final threshold document. If it is not agreed that threshold is met, then the court will have to determine this at the final stage of the proceedings.

By way of example, you might see something like this:

4. The home conditions for Hildebrande Glossop have been dirty, cold, and unhygienic. Regular social work visits showed that on each occasion over a period of seven months there were animal faeces in the kitchen, that the child’s bedding was sopping wet, that there were no toys in the home, that the house was cold and there was shattered glass on the floor in the child’s bedroom. As a result of those home conditions, the child has suffered from physical harm (the admission to hospital for glass shards in the left foot), medical conditions (bronchitis, scabies, and nits) and his development has been impaired.

That might get horse-traded to

4. The mother accepts that there were occasions in February 2015 where the home conditions dropped below an acceptable standard. At that time, she had been suffering from depression and has now consulted her GP for help with this difficulty.

Both of those versions are, on the face of it, capable of meeting the threshold. You can see perfectly well why the local authority might prefer the first version to be in the final document and the mother might prefer the second.

What is to happen where concessions are made, but there is discord between the parties as to whether those concessions should replace the document as originally drafted?

In broad terms, the senior courts have ruled that where concessions are made that are capable of meeting the threshold criteria, a further investigation into disputed areas as to how the threshold is said to be met is not appropriate. However, the Court of Appeal in Re M (Threshold Criteria: Parental Concessions) [1999] 2 FLR 968 clarified that the ultimate decision as to whether the threshold criteria was crossed and how is a matter for the Court – there might be circumstances in which further litigation about the fine detail of the threshold MIGHT be in the child’s interests.

The usual rule of thumb has been that where concessions are made that cross the threshold, those are accepted; but where the disputed matters are grave or serious (perhaps allegations of serious physical harm or sexual abuse) the court might be asked by the local authority to go beyond what is conceded. That would be by way of the court conducting a finding of fact exercise (in the past as a stand-alone exercise, these days more likely to be bundled up with the final disposal hearing).

The most recent authority on this particular aspect comes from the High Court, from McFarlane J (as he then was), in A CC v DP, RS, BS (by The Children's Guardian) [2005] EWHC 1593 (Fam), [2005] 2 FLR 1031.

In that case, there was a concession by the father that the children involved should live with mother, and no party sought any s 31 order. The local authority, however, still sought a finding that the s 31 threshold was crossed – no doubt with an eye to future children or the father forming future relationships with women who had children. The key issue therefore was whether the court could be asked to make a finding that the s 31 threshold was crossed, even though it was not necessary for the final determination of the issues before the court.

21. If it is lawful for the court to conduct a fact finding exercise despite the fact that at this stage no party is seeking a public law order, it is common ground that the court has a discretion whether, on the individual facts of each case, it is right and necessary to do so.

22. The relevant case law is to be found in the following decisions:

Re G (A Minor) (Care Proceedings) [1994] 2 FLR 69 [Wall J]

Stockport Metropolitan BC v D [1995] 1 FLR 873 [Thorpe J]

Re B (Agreed Findings of Fact) [1998] 2 FLR 968 [Butler-Sloss and Thorpe LJJ]

Re M (Threshold Criteria: Parental Concessions) [1999] 2 FLR 728 [Butler-Sloss LJ and Wall J]

Re D (A Child) (9 August 2000) [Schiemann, Thorpe and Mummery LJJ]

23. It is not necessary to read substantial parts of this case law into this judgment. Indeed I note that, in a former life, I was myself rightly discouraged in Re M from taking the Court of Appeal through the authorities because the law on this point is not in any particular doubt [see p 731B].

24. The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)

b) The time that the investigation will take;

c) The likely cost to public funds;

d) The evidential result;

e) The necessity or otherwise of the investigation;

f) The relevance of the potential result of the investigation to the future care plans for the child;

g) The impact of any fact finding process upon the other parties;

h) The prospects of a fair trial on the issue;

i) The justice of the case.

If the local authority consider that they are not satisfied with the mother’s concession about home conditions (in the Hildebrande Glossop example we are using) then they would have to consider whether they could persuade a court to make a finding of fact on the two versions. That would fall within the A County Council v DP, RS, BS 2005 test. The critical issue is going to be a comparison of the ‘necessity or otherwise of the investigation’ as against ‘the time the investigation will take’ and ‘the likely cost to public funds’.

Unless the concessions are very distant from the case as initially pleaded, or the allegations are significant, it has been likely that most local authorities would take the Re M tack of accepting the concessions as satisfying the threshold.

However, although none of those authorities have been over-turned, the situation has developed somewhat.

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Crossing the threshold has always hitherto been analogous to getting past a nightclub bouncer and getting into a nightclub. If you don’t cross the threshold, you don’t get into the nightclub. Whether, once you are in there, you have a good time, you get served at the bar, you get accepted or rebuffed when you offer to buy a drink for someone who catches your eye, is still to be determined. When you are crossing the threshold, all you are doing is getting into the nightclub, and having the opportunity to dance, buy a drink or chat someone up. You may or may not succeed, but if you don’t get past the bouncer, if you don’t cross the threshold, the question never arises.

The threshold criteria for making no order, making a supervision order, making a care order – asking for a care order where the plan is adoption, has always been the same thing. There has not been a tiered approach. You cross the threshold, and that lets you into the nightclub to try your luck at leaving with what you want to achieve.

Post Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075, things are not quite so clear cut as that.

Lady Hale in her judgment (which is the dissenting judgment, but it does not appear that there is dissent on these particular issues) outlines what the Court is to do where there is dispute on threshold

193. I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind:

(1) The court's task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.

(2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.

(3) Significant harm is harm which is "considerable, noteworthy or important". The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.

(4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.

(5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents' future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a "risk" is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649

Moreover, and significantly in this regard, Lady Hale develops the Art 8 of the Human Rights Act 2002 point to incorporate the concept of proportionality. That does put a direct comparative link between the nature of the harm suffered and the order that the court makes – the court has to consider whether the orders sought are proportionate to the harm that one is trying to protect the child from. Therefore, the substance of the allegations of harm that are being considered becomes an important part of that exercise.

Lady Hale did make it clear that she did not consider that there was a strictly linear relationship between harm and outcome (as an additional important factor was the ability of the State to mitigate or ameliorate that harm and the ability of the parents to do likewise).

197. Thus it is not surprising that Lewison LJ was troubled by the proportionality of planning the most drastic interference possible, which is a closed adoption, in a case where the threshold had not been crossed in the most extreme way (see para 174 above). However, I would not see proportionality in such a linear fashion, as if the level of interference should be in direct proportion to the level of harm to the child. There are cases where the harm suffered or feared is very severe, but it would be disproportionate to sever or curtail the family ties because the authorities can protect the child in other ways. I recall, for example, a case where the mother was slowly starving her baby to death because she could not cope with the colostomy tube through which the baby had to be fed, but solutions were found which enabled the child to stay at home. Conversely, there may be cases where the level of harm is not so great, but there is no other way in which the child can be properly protected from it.

198. Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.

It might well be that consideration of the threshold criteria as originally drafted would (if the local authority were able to prove their allegations) weigh somewhat differently in the proportionality exercise to the threshold criteria as finessed and conceded.

An additional complication is the recent line of authorities described in this piece notably Re J (A Child) [2015] EWCA Civ 222

That line of authorities make it plain that more rigour has to be applied to threshold criteria, and in particular these two points are significant:

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.

A local authority in the light of Re J (A Child) 2015 has to have an eye not only on whether the local authority itself is content with the concessions, but whether a court looking at a final agreed threshold document is going to consider that it crosses this more rigorous demand. If the parents concessions dilute the threshold document such that those parameters are no longer present within it, the local authority run the risk of either the court at first instance or an appellate court ruling that threshold was not properly crossed.

You may well say ‘but if there’s an agreed threshold document, the parents have conceded that section 31 is crossed’ – I would be very wary of assuming that if a judge was to make remarks that the threshold as pleaded does not in their eyes amount to a Re J threshold that those acting for parents would stand squarely by your side. I suspect that they would rightly pick up that baton and run with it fearlessly and to the best of their ability.

With all of that in mind, the current practice whereby threshold is tackled at the first hearing and with a view to finalising a threshold document within the first month of proceedings might well be a challenge in future. It will not be much use having an ‘agreed threshold document’ if at final hearing the judge indicates that they don’t think threshold is crossed as pleaded.