Tag Archives: care proceedings

Guidance from the Ministry of Justice about ‘Settlement Conferences’

I was sent this guidance in June 2016, relating to the ‘settlement conference’ pilot that will be taking place between June and October 2016 in selected court centres. It will be interesting to see how it develops (I have already suggested that one case would be suitable) – but it does appear to be attempting to achieve what the Issues Resolution Hearing was originally designed to do!

Settlement Conferences

The government is testing a new collaborative approach to dealing with public law family cases (“care cases”) called a settlement conference. If parties consent, they will be involved in this test (called ‘a pilot’). This guidance provides information on what will be happening during the pilot and what the government will be measuring.

A settlement conference is a hearing held for the purpose of discussion and settlement of the case. It is a without prejudice hearing that takes place before a judge with the consent of all the parties.

A without prejudice hearing means that what is said and discussed during the settlement conference will not be admissible in evidence (except at the trial of a person for an offence committed at the conference or in the exceptional circumstances indicated in Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231, where a statement is made clearly indicating that the maker has in the past caused or is likely in the future to cause serious harm to the well-being of a child). The judge hearing the settlement conference must have no further involvement with the case, other than to make a final order by agreement or a further directions order. The purpose is to try to resolve some or all the issues by agreement. Parties will attend with their legal representatives (where instructed) but are encouraged to speak directly with the judge with the aim of settling the case or particular issues.

The judge hearing a settlement conference will be different to that of the trial judge. They will be specially trained in dealing with hearings of this type. The settlement conference judge is a different person. Before the conference, they will have read the case file and might ask the parties questions during the conference.

The judge may not make an order resolving some, or all, of the issues without the agreement of all parties. Where an application is for adoption or placement, a judge may give a judgment with the agreement of the parties (e.g in care order or placement order application where there is no opposition to the same.)

Process

Settlement conferences will take place for public law cases. They will ordinarily take place after an Issues Resolution Hearing (IRH) At the IRH, the parties will be asked if they consent to take part in a settlement conference to be assisted by a judge, other than the trial judge. The court will still list the case for a final hearing date as well as a settlement conference date at IRH stage to ensure there is no delay if the matter is not resolved and a final hearing needs to take place.

During the settlement conference the judge will work with parties in a way that promotes settlement. There is no obligation or pressure to agree to anything at a settlement conference. If agreement is not reached, the case will proceed to final hearing.

At the end of the settlement conference if there is agreement on all matters, the case will end and an order drafted reflecting the decisions made; the parties will not have to attend a final hearing. If some or all of the issues remain outstanding the parties will come back to court for the final hearing or adjourned settlement conference if appropriate.

What will happen in the pilot and what are we collecting

The pilot will be testing how these settlement conferences work. At the end of the settlement conference the judge will fill in a form (see attached). The form the judge is asked to fill in will help the government understand the reasons why a case is referred to a settlement conference, the outcome, time spent on preparing and facilitating the conference, the number of final hearing days listed and the estimated number of days saved (if a case settles). No personal details about the parties will be recorded.

From July selected judges, Cafcass representatives, local authority solicitors and lawyers involved in the process will be asked to take part in interviews and workshops where they will be asked about their experiences of settlement conferences. They will not be naming individuals that they have worked with, they will only be asked about what they think about the process, what went well and what did not go well. If you (as a party of the proceeding) would like to give feedback on what you thought about the settlement conference you can tell your legal representative who may be asked to provide this as part of the research.

How long with the pilot last?

5 months starting from June 2016 and ending in October 2016.

What will happen to the information that is collected?

The information will help government to understand whether this way of conducting a court hearing is a good thing. It will also help identify any problems with the system.

Information for other people involved

Judges and court staff have been provided with guidance on settlement conferences. If you have any questions or would like to know more information please ask the settlement conference judge.

Going Off the Rails in Interesting Times

Why do so many care cases go wrong?

What are the recent cases demanding?

Proper evidence
Proper thought about the evidence
Collective responsibility

For consideration of the importance of good evidence and how we secure it see the post Achieving Best Evidence In Children Act cases

And why is it going to cause significant problems?

HHJ Wildblood’s recent newsletter – June 2015: Pressure on the court

There will be no capacity to ‘oversit’ this year – last year 160 days were ‘oversat’ at judge level. Thus ‘we must use every day of court time to its fullest advantage’.
If we run out of sitting days the solution will be simple: we cannot list court cases and that has dramatic consequences for litigants and lawyers alike (there will not be work for them to do). We must therefore tighten up considerably and stop the drift that is occurring.

Identified problems

Cases drifting – 49 cases now off 26 week track
Too many psychologists and ISW being appointed
Cases are not being made ready for court by LA in pre-proceedings stage
Too many examples of excessive and unstructured use of section 20 accommodation
Failure to obtain police disclosure in accordance with the protocol
IRHS being listed very close to FH and not being used properly. They should be listed at week 20 and used to resolve issues
Solicitors are not filing noticing of acting, causing problems in court office
Issues re kinship care should be subject of express and full discussion at the CMH and there should be case specific directions about it

Examples from case law and what we can learn

H (A Child) (Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406 – 22 January 2015

Facts: LA issued care proceedings concerning a 4 year old in March 2014. In October 2014 an SGO was made with regard to a member of the mother’s church who was not a relative, even though the child had been cared for by the father since March. The father was successful in challenging this. There had been failure to comply with rules and practice directions, particularly with regard to the procedural requirements for an SGO.
At paragraph 7 the Court of Appeal commented ominously:
‘In simple terms the case was not in a fit state to be heard. It is a matter of some significance that no-one realised that fact at the time’
There were two realistic placement options – supported care by the father or care by a relative stranger under and SGO. The fatal flaws in this case stemmed from as assumption created by poor case management that the SGO was a realistic option but the father was not.
Classic errors included:

Lack of judicial/counsel continuity
Failure to identify issues and realistic options
Failure to consider what witnesses were available for eg an expert report was carried out re father in 2011/12 – the father said his circumstances had now changed but no one gave any thought to seeking an addendum report or calling the expert to give live evidence.

The consequence was that the Judge did not undertake the necessary comparative welfare analysis and thus also failed to carry out a proper evaluation of whether the interference with Article 8 rights proposed by the making of an SGO could be justified.

A (A child) [2015] EWFC 11 17 February 2015

A textbook example of how not to embark upon or pursue a care case. Facts: A was born on 11th January while his mother was serving a prison sentence. An initial viability assessment of his father was negative so A went into foster care. The LA then took 8 months to issue care proceedings and were found to be too quick to believe the worst of the father and made comments on the ‘immorality’ of his conduct. It was difficult for the President to discern what had happened with the assessment process and difficult to link what was set out in the threshold with the need to prove significant harm.

The Guardian came in for particular criticism at paragraph 39 onwards due to the disconnect between her oral and her written evidence:

On 6 October 2014 CG completed her initial case analysis. It is striking for what it did not say. In her oral evidence to me, CG described herself as being “extremely concerned” by the assessments. She was, she said, and this was her own, unprompted, word, “appalled”, not merely because of the local authority’s delay in issuing the proceedings but also because of the poor quality of the assessments, both the assessment of the father and the assessment of the paternal grandmother and step- grandfather. Nothing of this is to be found, however, in her initial case analysis. …
The letter from Mr Leigh had, as we have seen, referred to the guardian being “most concerned at the social work exhibited in this case” but it focused on the issue of delay. In her oral evidence to me, CG said that she had brought her concerns about the quality of the assessments to the attention of the local authority’s representatives when the matter was back at court on 6 October 2014. No doubt she did, but what is far from clear is the extent to which, if at all, her concerns were articulated, either to the other parties or to Judge Taylor. I am driven to the unhappy conclusion that whatever may have been said was wholly inadequate to bring home, either to this very experienced family judge or to the parties, the guardian’s real views about the inadequacy of the assessments.

The President identified 3 fundamental principles. Failing to abide by these principles will have serious implications for the successful pursuit of an application in court.

Facts must be drawn from evidence, not suspicion or speculation
- LA must provide proper evidence, direct whenever possible
- LA must not confuse the distinction between asserting a fact and the evidence needed to prove it
Facts must be linked to the case on threshold; WHY do these facts go to prove significant harm or risk of it?
Society must be willing to tolerate diverse standards of parenting… it is not the provenance of the state to spare children all the consequences of defective parenting… (Hedley J re L [2007] 1 FLR 2050 para 50)

An interesting aside: Sir Mark Hedley addressed our recent conference ‘Is the Child Protection System Fit for Purpose’ and opined that whenever judges saw counsel citing this famous dictum ‘it was because they knew they were going to lose’ – I am not so sure he is right about this with the President’s continued endorsement.

Re J [2015] EWCA Civ 222 19th February 2015.

Facts: two young parents who behaved in an irresponsible manner. There were issues of drug use and domestic violence. The mother had been sexually abused as a child in care. The Court of Appeal were clear this was NOT a finely balanced appeal as it was simply ‘impossible’ to detect in the judgment the Judge’s process of analysis.
Aikens JL identified the fundamental principles at para 56 – the Court of Appeal agreed with the President’s judgment in Re A, but stressed that none of these principles are new.

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.
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”.
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.
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.)
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]”.
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”.
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.
In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(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) [2008] EWCA Civ 535, [2008] 2 FLR 625.

South Glos Council v L and R 30th June 2015

Facts – two children both under 3 years old had been in section 20 accommodation since September 2014. In January 2015 the LA applied for a care order given the concerns about the parents who were both very young. Issues around neglect and chaotic lifestyles. On 30th January the Magistrates listed for a final hearing in July, so within 26 week period. HHJ Wildblood commented at para 4 of the judgment.

Plainly this was a case that should have been resolved within the 26 week period prescribed by statute. It is not a complex case. The issues were clearly defined. The Local Authority had been involved with the parents for years before the case started and so knew them well; the father and mother were involved with children’s services as children; there was a heightened involvement between the Local Authority and the mother following the birth of the first child. Thus, the authority had plenty of time to make up its mind about what orders it would seek once proceedings were issued.

But by the IRH at the end of June the case was clearly off the rails; the LA had no final evidence so the parents did not know the case against them and the guardian couldn’t prepare her analysis. So what went wrong?

A psychological assessment was ordered on 12th March which was not necessary. HHJ Wildblood is not sitting on the fence with his comments in para 7:

In this area far too many psychological reports are being ordered when they do not meet the test laid down in section 13(6) of The Children and Families Act 2014 that such reports should only be ordered when they are ‘necessary to assist the court to resolve the proceedings justly’. Unnecessary reports waste public money, cause delay and add nothing to the overall quality of the evidence in a case. The report, which I have read, contains little of value that could not have been found elsewhere within the evidence, if the evidence had been properly prepared;

What this case needed was proper parenting assessment of both parents. But these assessments were not done in advance of the IRH at the end of June – because the agency SW responsible had left the LA and not done this work. So by the time of the IRH the LA did not have their final evidence so neither parents nor Guardian could respond. HHJ Wildblood called for an explanation at the highest level of Director and he found the full and frank response helpful. The Director wrote (See para 13):

This situation has largely come about because of significant staffing issues within South Gloucestershire Council’s social care service. The North locality team has been affected particularly badly by high levels of staff turnover at both practitioner and management levels, which in turn has led to the use of relatively high levels of agency staff. It is evident that this situation has impacted on this case with a lack of consistency and direction, as well as a loss of knowledge and oversight each time a social worker or manager has left the Department. The Local authority’s legal team has equally been through a period of significant turnover and change recently, which has again led to inconsistency in relation to legal oversight and direction’.

HHJ Wildblood was sympathetic but obviously such sympathy is not infinite. He set out a list of considerations for future cases which may be going off the rails.

If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.
Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.
Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.
If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.

Collective Responsibility?

It will be interesting to see how this concept develops – particularly when many of the problems in these cases (particularly pressure on LA staffing levels) are outside the sphere of influence of any of the participants to the care proceedings.

Parents’ views of the proceedings – we have lost faith in the process

I find it almost impossible to believe that justice will prevail.

This is a contribution from one of our readers ‘M’ about how her partner saw the system unfolding around then and how it made them lose faith in the proceedings and to feel very unfairly treated. It is very sad to read this, as a lawyer and wonder why these parents felt so unsupported by their own legal team. What should parents’ lawyers be doing differently or better, to have a positive impact for these parents?

Support for Parents in Care Proceedings

When a child is taken into care the parents are often left completely in the dark as to where they should go and who they should approach. The only thing you are told is that you should get legal representation as soon as you can.

Emergency Protection Order

In the case where your child is taken on an Emergency Protection Order you have less than a week to organise any legal representation. Additionally on an EPO the first hearing for an Interim Care Order it seems is often heard at a magistrates court which means you have no chance of getting the order reversed. If you are lucky enough to find a good solicitor in the few days it still seems to make no difference. As in our case the ICO hearing was scheduled in a magistrate’s court and was given enough time only for the ICO to be granted stopping us from challenging the order. We then find that we can only contest the ICO at a hearing at the end of August some 6 weeks after M’s son was taken into care. Even then the hearing was postponed for a further 2 weeks.

Care Proceedings 6 Month Limit

The 6 month limit on care proceedings starts from the moment the child is taken into care. This is clearly grossly unfair in the situation where your child is taken into care on an EPO and you are not allowed to challenge this for 2 months. It is particularly unfair in the situation where the child is taken into care in July as the 6 month period would end late December / early January and it was clear in our case that there was no intention and that finishing the case within 5 months became the target. Given the late start due to the summer and wanting to finish within 6 months we had barely 2 months to go through any assessment’s or possible solutions. It is hardly surprising the local authority took the “easy” approach and stuck with their original plan to keep M’s son in care and seek a placement order.

No-Win For Parents

Everything you say during the period you are in proceedings is used against you no matter what it is. If you are emotional when seeing your child then you are deemed to be harming them and if you are not then you are uncaring. It seems that once a decision has been made by Social Services to pursue a course of action you have almost no chance of getting a fair hearing. I can barely believe that we were not allowed to challenge much of the case that Social Services put forward. It may be that we were poorly represented in court – I cannot be sure as I only have this experience to go on. M was criticised for considering a move to B as if B was somehow an inappropriate place to live and yet M’s son is placed in G where Primary school education is one of the poorest in the UK.

The Basic Fault in the System

The underlying fault in the system as it stands is that you are assumed to be “guilty” unless you can prove you are innocent. Justice has been turned on its head in the drive to protect children and can only lead to many miscarriages. Considering the damage taking a child into care can do to the child and to the parents it should very much be a last resort. However I believe our case demonstrates that it is being used as anything but a last resort and possibly in […] in particular is being used to excess as can be seen by the Local Authority now finding it has neither the finances nor the numbers of foster parents needed. I don’t believe there is any independence in the courts as M’s son was taken on an EPO on two grounds which we proved were incorrect. There seems to be no restraint on the Local Authority if it decides to pursue parents. Documents were presented in court with outright lies in them and M was told several times that the Local Authority have to put these statements in even though they know them to be “untrue” because they would otherwise “weaken” the Local Authority case.

Aggressive Questioning in the Final Hearing

During the Final Hearing I was subjected to the most aggressive questioning I’ve ever witnessed. I have twice done Jury service and have never seen such questioning used in the criminal cases there. I felt I was being attacked as if I was somehow guilty of some serious offence like murder. I had previously made it quite clear to the Social Services that I wouldn’t put myself forward to care for M’s son unless I honestly believed I could do this. The people that know me know that I am a very honest person. I produced a couple of witness statements from people I know and have worked with to this effect. Before this hearing I had believed that justice would prevail but I find this almost impossible to believe now.

Local Authority Policy on Keeping Children in Care

I had thought the Local Authority would take a realistic look at the options for returning M’s son but instead they’ve taken a hard line attitude which seems to be at odds with the stated objectives of keeping families together. Given M’s sons cultural background they should have made efforts to keep up his language skills which would have put him ahead of his peers at school. Instead they seem to have made a conscious effort to remove this heritage and made no effort to keep his language skills. M was banned from speaking to him in anything other than English during our contact sessions.

Missed Contact Sessions

We missed 2 contact sessions in August last year as I had to be in E for work. I know M could have stayed in K and gone to the contact sessions but she was not coping well at the time and also the contact locations were far away in G.

Placement of M’s Son in Foster Care in far away location

We were told that G was the only place that M’s son could be placed but from our conversations with the contact supervisors it seems to have been an unusual foster placement. How many other children in care are placed an hour’s drive away or 2 hours by public transport? It may be that the foster placement was the only choice but along with the later statements and lack of support from Social Services it’s hard not to believe that the intention was to make things as hard as possible for M. Applying extra pressure to both M and me while we were already under pressure is completely immoral and has destroyed my trust in Social Services. All along it seems the actions of Social Services have been aimed at justifying taking M’s son into care and making life as difficult as possible for both of us in the hope we would give up. I can no longer believe they have the best interests of children at heart but are pursuing their own targets and objectives. Speaking as an honest person who finds lying virtually impossible I cannot understand how the Social Worker can stand in court and say that M’s son has suffered “emotional harm” when there is nothing to suggest this. All along the “expert” legal advice has been to accept the findings and agree a plan with Social Services to return M’s son but following this got us nowhere as at no time would Social Services offer us any credible option.

God like Powers Granted to Social Services without any Checks

It seems we have given God like powers to Social Services but without any checks or balances. Reliance on the courts to provide this is clearly not working and especially so when the system of Guardians is clearly not providing any independence. Considering the cases one reads about and which I have more recently heard about from M’s contacts in Facebook our case seems very unusual and our treatment exceptionally severe.

Current Situation

We are still awaiting the Court’s response to our appeal. Lamentably, the LA solicitor has written to the Royal Court of Justice, submitting that the permission to appeal should be refused. There is obviously no requirement for the Local Authority to provide a response to our Appellant’s Notice, so their attempt to “expedite matters” can be viewed as their attempt to infringe upon our right to a fair and public hearing, guaranteed by Article 6 of the ECHR.

What do we mean by the ‘welfare stage’ of care proceedings?

Care proceedings involve a two stage legal test

As we discussed in another post about ‘threshold criteria’, a court can only make a care or supervision order if it is satisfied it has passed both parts of a two stage test –

First – that the necessary ‘threshold criteria’ must be found proved on the balance of probabilities in order to show that the child has suffered or is at risk of suffering significant harm.

Second – is it is in the best interests of the child to make a care or supervision order?

This second stage is often called ‘the welfare stage’ because the court has to focus on what order would best meet the child’s interests; or in other words, what does the child’s welfare require the court to do?

It used to be called the ‘disposal stage’ but it was soon noticed that this was an unpleasant way to refer to children’s proceedings. ‘Welfare stage’ is a much more appropriate way of signposting that the focus should now be on what the child needs.

Therefore, even if the court is satisfied a child has suffered significant harm, a care order and removal from the parents does not automatically follow. For example, if the parents have engaged with the LA and are working to change things for the better, the court may make no order or only a supervision order.

Or the court may make a child arrangements order (previously ‘residence order’) or Special Guardianship order in favour of another family member, which may mean the parents can carry on having direct contact with the children after the final hearing.

What does the court need to consider when looking at the ‘welfare stage’ ?

The fundamental principle behind the Children Act 1989 can be found in Part 1, section 1. This states that when the court is determining a question with regard to a child’s upbringing:

The child’s welfare shall be the paramount consideration

We need to unpick what is meant by that. Section 1(2) reminds the court of the principle of ‘no delay’ i.e there is an assumption that any delay in making a decision is likely to harm the child’s welfare. You can argue that ‘planned and purposeful’ delay could actually be a good thing for the child – for example, you need more time to finish assessments of family members who could care for him. But you will need to remember the impact of the new Public Law Outline which sets a strict 26 week timetable for care proceedings to finish.

Section 1(5) sets out the ‘no order principle’ – the court should only make an order if this would be better for the child than no order at all. This is in line with the principle of ‘least intervention’ and the requirements of Article 8 of the ECHR.

Section 1(3) is very important as this sets out the ‘welfare checklist’ which is a reminder to the Judge of all the things he or she needs to show have been considered in the judgment. If a Judge makes a decision about a case but can’t show how the welfare checklist was considered, this could make the judgement vulnerable to an appeal.

The Welfare Checklist under the Children Act 1989

the ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding)
his physical, emotional and educational needs
the likely effect on him of any change in his circumstances
his age, sex, and background and any characteristics of his which the court considers relevant
any harm which he has suffered or is at risk of suffering
how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
the range of powers available to the court under this Act in the proceedings in question

The welfare checklist under the Adoption and Children Act 2002

When the court is considering placement or adoption orders, the court must also consider a similar checklist in section 1(4)(a) to (f) of the 2002 Act

the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding)
the child’s particular needs
the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person
the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant
any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering
the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including
- the likelihood of any such relationship continuing and the value to the child of its doing so
- the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs
- the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

The warnings from Re B-S (Children) [2013]

The recent case of Re B-S (Children) [2013] contained stern warnings from the Court of Appeal about the importance of good clear analysis about what was in a child’s best interests, particularly when the court was thinking about endorsing a care plan that would lead to adoption.

The key points of the judgment can be summarised as:

Adoption is the ‘last resort’ [para 22]
the starting point needed to be consideration of the law around Article 8 of the European Convention and the fact that this imposes a positive obligation upon States to try to keep families together [paras 18]
the least interventionist approach is to be preferred [para 23]
The child’s interests are paramount, but the court must never lost sight of the fact that these interests include being brought up by his/her natural family [para 26]
There must be proper evidence from the LA and the Guardian that addresses all options which are realistically possible and must contain an analysis of the arguments for and against each option.[para 34]
The court then ‘must’ consider all available realistic options when coming to a decision; [para 27, 44]
That the court’s assessment of the parents’ capacity to care for the child should include consideration of what support was available to help them do so [ para 28]
The LA cannot press for a more drastic form of order because it is unable or unwilling to support a less interventionist form of order; it is their obligation to make the court order work [para 29]
The Court of Appeal made it clear that it was ‘essential’ that a decision was made after a proper and thorough analysis of all relevant evidence. There was a real danger of not making the right decision if the court took a ‘linear’ approach to the options, i.e rejecting option A, then moving on to option B etc.

They said at paragraph 44 of the judgment:

“We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.”

The court also made it clear that proceedings could take longer than 26 weeks if more time was needed to resolve a case justly. See paragraph 49.

Suesspicious minds offers a good analogy to show us why ‘linear evaluations’ of evidence can be so dangerous in this blog post

What does ‘threshold criteria’ mean?

This is a post by Sarah Phillimore.

You will often hear the phrase ‘threshold criteria’ or ‘threshold analysis’ being used in care proceedings but unsurprisingly, anyone who isn’t a lawyer or social worker, often doesn’t understand what it means. In summary, the ‘threshold criteria’ are the facts that a local authority have to prove if they want the court to make a care order or a supervision order.

The ‘Two Stage’ Test in care proceedings

In order to justify making a care or supervision order, the court has to satisfy a two stage test:

The first stage – the threshold stage – there must be sufficient reasons to justify making a care or supervision order – or in other words, the case must cross a threshold. This threshold can only be crossed if the court agrees:

that things have happened which have already caused significant harm to a child,
or pose a serious risk that significant harm will be suffered in the future,
or which show that the child is beyond parental control.

If the child is not suffering or at risk of suffering significant harm there CANNOT be a care or supervision order. This is because the requirements of section 31(2) of the Children Act 1989 will not be met.

The second stage – the welfare stage – even if the threshold is crossed, it must be in the child’s best interests to make an order. It is not inevitable that a care order will be made every time a child has suffered significant harm (but it is likely).

The importance of the ‘threshold criteria’

If you don’t cross the threshold, the court can’t make a care or supervision order. Therefore, the relevant facts must be proved on the balance of probabilities. If this isn’t done, the care proceedings have to stop. It is therefore vital to establish at a very early stage exactly what the LA want to rely on as their threshold criteria and to find out if the parents will agree or there needs to be a court hearing to test the local authority’s evidence.

The local authority will have to prove that things happened on or before the date they applied for a care or supervision order. It can rely on information that became available after that date, as long as it is information relevant to what was happening at that time. See R G (Care Proceedings: Threshold Conditions) [2001].

How is significant harm caused?

EITHER by what the parents are doing or failing to do for their children (i.e. its more likely to be perceived as ‘their fault’)
OR because the child is beyond parental control (which may not necessarily be considered the parents’ fault).

See the case of WBC v A [2016] EWFC B70 in October 2016 where the court decided that there was no need to try and link a child being beyond parental control with anything that was the parents’ ‘fault’ – therefore threshold could be met on that basis without any need to ‘blame’ the parents.

However, whether or not the parents are to ‘blame’ for what has happened to the children, there must be a clear link between the significant harm and the events on which the LA rely.

Lady Hale in the case of Re J [2013] UKSC 9 said:

Time and again, the cases have stressed that the threshold conditions are there to protect both the child and his family from unwarranted interference by the state. There must be a clearly established objective basis for such interference. Without it, there would be no “pressing social need” for the state to interfere in the family life enjoyed by the child and his parents which is protected by article 8 of the ECHR. Reasonable suspicion is a sufficient basis for the authorities to investigate and even to take interim protective measures, but it cannot be a sufficient basis for the long term intervention, frequently involving permanent placement outside the family, which is entailed in a care order.

What should the ‘threshold’ document contain? And when will I see it?

The local authority have to set out the proposed threshold in the application form for a care or supervision order. Some commentators have expressed concern that sometimes local authorities are not very good at setting this out clearly. See this post from Pink Tape. But hopefully parents will be able to get at least some idea of the case against them at the earliest stage.

Documents setting out the threshold criteria are meant to be quite short but will need to have enough detail to justify the proceedings and so the parents understand the case against them. The local authority will provide further evidence to support their threshold criteria with statements from social workers and other professionals such as teachers or doctors, depending on the facts of the particular case in front of them. But the threshold document should act as a clear and accessible summary of the problems and provide a quick ‘way in’ to understanding what the case is all about.

Sir James Munby, when President of the Family Division, discussed the format and length of the ‘threshold statement’ that a local authority must provide in 2013. (View from the President’s Chambers: the process of reform: the revised PLO and the local authority [2013] Fam Law 680). He states that the threshold document should be limited to no more than 2 pages and that the court does not need to find ‘a mass’ of specific facts to determine that threshold is crossed. In asking the question – what does the court need? he answers:

It needs to know 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.

The Court of Appeal endorsed this view in the case of Re J (A Child) [2015] and further endorsed the crucial importance of linking the facts relied upon with the requirements of section 31 of the Children Act 1989, which the President further discussed in the case of Re A (A Child) [2015].

Linking the alleged facts to the harm suffered, or likely to be suffered.

For example: the LA might say:

‘The child has suffered significant emotional harm evidenced by:

frequent exposure to his parents arguing and fighting while he is present in the family home;

On at least two occasions in the past year the police were called by concerned neighbours when the parents were fighting (see police reports at pages XX of the bundle);

The police arrested the father who was drunk and had hit the mother in front of the child; the mother has refused to co-operate with the police with regard to any criminal proceedings against the father for assault.

The parents do not show any insight into their relationship difficulties and have refused to attend any counselling or domestic violence intervention programmes.

The paperwork before the Judge in a case like this is likely to contain, as well as statements from the social workers, parents and child’s guardian, evidence from the police, such as their own notes as to when they were called out and what happened, medical evidence to deal with alcohol misuse, possibly a report from a psychologist or psychiatrist. You can see why it is both helpful and necessary to put the issues in the case into one accessible document as even a simple case can generate a lot of written evidence.

If the parents can accept the threshold

The matter will then proceed to the ‘welfare stage’ i.e. where the Judge has to decide what if any order is right in this case. This will depend whether or not the parents have accepted they have difficulties and are willing to work at them. If so, no order or a supervision order may be appropriate. However, if the parents are found to have caused their child to suffer significant harm and do nothing to show how they will change for the future, or if the parents refuse to agree that there is anything wrong at all with their parenting, the court is likely to think a care order is the right order to make.

This will allow the LA to also have parental responsibility for the child and will put them in the driving seat with regard to making decisions to safeguard the child’s future – which could include removing him to an adoptive or foster placement.

If the parents don’t accept the threshold

Then the Judge will need to read all the written evidence and hear oral evidence from everyone involved and then make a decision about what did or didn’t happen. Sometimes there has to be a separate court hearing to make a decision about an interim care order before the final hearing, but it is possible to wait until the final hearing to make a decision about threshold.

It is vital if parents don’t agree with the threshold criteria that they given their solicitors full information as soon as possible and produce their own written document in response.

What Judges have said about meeting threshold

The most significant case concerning threshold criteria is that of re B in the Supreme Court in 2013 which confirmed that a decision as to whether the threshold conditions for a care order have been satisfied depends on an evaluation of the facts of the case as found by the judge; it is not an exercise of discretion.

Lady Hale set out in paragraph 193 of her judgment in that case things that the courts should keep in mind when a threshold is in dispute:

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.
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.
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.
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.
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.

Criticisms of the current approach to threshold – are too many cases going to court?

Isabelle Trowler. In her Bridget Lindley Memorial Lecture in March 2019 Care Proceedings in England: The Case for Clear Blue Water, raised a variety of concerns about what is beyond the recent and serious increase in number of cases coming to court.

She has seen the concept of ‘significant harm’ change and parents who would have once been described as ‘struggling in difficult circumstances’ are now accused of ‘neglect’. She found a lower – but inconsistent – tolerance for diverse standards of parenting with social workers becoming increasingly ‘pro child’, together with fears that the ‘march of predicative harm’ and the mis-use of section 20 has damaged relationships with parents and thus harmed the guiding force of the Children Act – that parents and professionals should work in partnership.

Isabelle Trowler was concerned to note the proportion of children who ended up staying with their parents or within the wider family at the end of contested hearings – about a third. Although in the majority of cases intervention was necessary, if a child ended up with a Supervision Order – was it really necessary for that have gone to court?

But we found a very significant proportion of families subject to proceedings who ended up staying together – with 34 percent of all disposals resulting in a Supervision Order. The public purse pays a heavy price for taking families into court only for children to remain at home anyway; but families and their children pay the heaviest price of all. Inevitably, we had to question – was it really worth it?

The rise in the numbers of applications for care orders may be explained by the

…much greater and deliberate national focus on the early protection of the child, a stronger focus on lower level parenting concerns as first signs of cumulative neglect and with a recognised risk of future harm, a greater sense of urgency to act and secure permanency without delay and the need to act on the side of safety

She poses the worrying question – are we simply asking too much of parents now?

And it did raise an even more troubling question for me – are we asking the impossible of parents? We have an incredibly strong child focus and that is laudable – and that is something that we do not want to change – but in doing so have we made, inadvertently, the family the enemy? We have a multitude of professionals looking out for the rights of a child we have the local authority social worker and their supervisor and their manager, and then there is the foster carer, for example, and their supervising social worker and of course their manager. There is the independent reviewing officer and of course their manager. Then once we hit the court arena, we have the children’s guardian and then their supervisor and the entire hierarchy of Cafcass. That is a lot of people looking out for the child. Maybe as it should be. But is it fair? We are asking parents, often powerless anyway, often frightened and furious, to stand up to everyone else. This feels uncomfortable.

There is a need for some ‘clear blue water’ between those families who could continue to care for their children with help and support and those children who do need to be ‘rescued’ from situations that cannot or will not change within the child’s timescales. Lack of tolerance for diverse parenting standards, coupled with lack of resources appears to be creating a situation where the focus is on going to court.

But for the family justice system to work effectively and fairly, there should be clear blue water between those children who are brought into public care proceedings and other local children who have suffered significant harm or who are at risk of being so. But for there to be clear blue water between these two groups of families, this requires the local authority to be sufficiently equipped to support families and to manage the risk to children within their communities. This requires the right resource spent on the right things and a social work profession with the necessary knowledge and skill to practise confidently at all levels.

What do we mean by proving something ‘on the balance of probabilities’ ?

How and why do we have two different standards of proof in civil and criminal proceedings?

‘The balance of probabilities’ is the standard of proof used in all civil court proceedings, so includes care proceedings.

The other standard of proof we use is the one in criminal cases which is ‘beyond a reasonable doubt’ or that the jury must be ‘sure’ a crime was committed, which is a higher standard due to the very serious consequences that can follow a criminal conviction, such as loss of liberty.

Its often difficult for non lawyers to understand that there are two separate systems which work on two different ‘standards of proof’ and many parents struggle to accept that the lower civil standard of proof is used to make findings about parents which are often just as serious as a decision to send someone to prison. For example, the family court gets to decide whether a child is removed permanently from the parents’ care. This struggle becomes even more acute around the issue of removing children at risk of future emotional harm – i.e. for something that hasn’t happened yet, but the court thinks will.

I agree that if the State takes your child away, that is a very serious and significant interference in the family life of both parent and child. But if children are left in dangerous situations, that also puts them at serious risk of being hurt, either emotionally or physically. Therefore, it is a deliberate decision to use balance of probabilities in family cases because we could not always prove children were at risk using such a high standard of proof, or it may take much longer to find and gather together the evidence to have a court hearing, leaving the children at risk of harm while this is done.

Baker J discussed the issue of the burden and standard of proof in 2013:

In English law, the House of Lords has now concluded definitively that in order to determine whether an event has happened it has to be proved by the person making the allegation on the simple balance of probabilities. Where the law establishes a threshold based on likelihood, for example that a child is likely to suffer significant harm as a result of the care he or she would be likely to receive not being what it would be reasonable for a parent to give, the House of Lords has also concluded that such a likelihood, meaning a real possibility, can only be established on the basis of established facts proved on a balance of probabilities.

There are those who considered that to require the proof of past harm was a misreading of the intention of Parliament, and that a system devoted to child protection should not imposed such a high hurdle. It was argued, and in some quarters is still argued, that since we would not insist on proof before protecting our own children from risk, we should adopt the same cautious approach when protecting other, more vulnerable children. The House of Lords has of course firmly rejected that approach, which of course would at one extreme involve removing children from their parents on the basis of mere suspicion.

However, it is clear that certainly in ‘finely balanced cases’ that a finding can often be very difficult for parents to accept, particularly as any finding then becomes ‘the truth’ unless and until it is challenged. Our current system of fact finding permits only two outcomes (the ‘binary system’) – either it did or it didn’t happen.

Application of the standard of proof in care proceedings .

In care proceedings, the Judge has to be satisfied that the evidence to show that your child is suffering or is at risk of suffering significant harm has been proved on the balance of probabilities. This phrase has been explained to mean ‘more likely than not, or ‘ ‘more than 50/50’.

For a while, the courts did approach the standard of proof for serious allegations in family cases as being similar to the standard in criminal cases, as it was felt that such serious allegations with such serious consequences required a high level of proof.

The courts however from 2004 onwards decided to move away from this approach and confirmed it by a decision in the House of Lords in 2008 (The House of Lords is now called the Supreme Court).

Baronness Hale said at paragraph 69 of her judgment:

There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof. Divorce proceedings in the olden days of the matrimonial “offence” may have been another example (see Bater v Bater [1951] P 35). But care proceedings are not of that nature. They are not there to punish or to deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way.

Baronness Hale stated ‘loud and clear’ that the standard of proof in care proceedings is the simple balance of probabilities, neither more nor less.

Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies. […] It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Some-one looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied.

The dangers of ‘pseudo maths’ to determine the balance of probabilities

The court examined this in the tragic case of A (A child) 2018. In November 2016 S, aged only 10 years, was found dead in her bedroom. Initially it was thought this was a tragic accident – that she had become entangled in decorative netting around her bed and injuries to her neck caused her death. There were problems at the outset in the police gathering evidence at the scene.

However it was then discovered she had injuries to her genitals, probably inflicted about 12 hours before she died and the view of the experts was that this made it more likely that the neck injuries were deliberately caused, probably in some sexually motivated homicide.

However at the first hearing the LA failed to persuade the Judge to make a finding on the balance of probabilities that both sets of injuries were deliberately inflicted. The LA appealed successfully to the Court of Appeal who criticised the first instance Judge for failing to look at the wide canvass of the evidence and to consider neck and genital injuries together, and also for attempting to apply ‘pseudo maths’ to the analysis of the balance of probabilities, in particular by identifying percentages for each possibility and adding them up. As the Judge could not reach ’51’ by this method, he concluded the LA had not met the standard of proof.

The Judge relied upon the decision of Mostyn J in A County Council v M & F [2011] EWHC 1804 (Fam), [2012] 2 FLR 939 as support for his contention that, where there are rival hypotheses, the judge is not bound to make a finding and that as a consequence the burden of proof is the only course to take. The judge went further saying at para 98 of his judgment that:

“98. I find that this is one of those unusual cases where the burden of proof comes to the judge’s rescue. Aggregating, as I must, the probability of suicide together with the probability of accident, I find that the aggregate of these two is more than 50 per cent. Doing the best that I can, I find that the possibility of suicide is about 10 per cent, and the possibility of accident and a perpetrated act are about 45 per cent each. It would be wrong for anyone to regard these figures as in any way accurate, for of course they are not. They persuade me, however, that the local authority has not discharged the burden of proof which is upon it. I am not satisfied, on the balance of probabilities, that this was a perpetrated act, albeit that I recognise that it is one of three possibilities. On the basis, however, that I do not discard the least probable and then allow a competition between the other two options, but that I should look at each of the alternative possibilities and aggregate them together, I am quite satisfied that the burden of proof in this case is not discharged. Accordingly, I do not find that the local authority’s case is proved in respect of any of the contested issues. By application of the binary principle, it is the finding of this court that neither the father, the mother, M or N are responsible for a sexual assault on L and nor are they responsible for her death. Accordingly, threshold is not met.”

The Court of Appeal firmly rejected this approach at para 51 of their judgment and emphasised that the starting point remains the test articulated in Re B (Minors) 2008 2 WLR 1 HL, discussed above:

“70. My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.

Conclusions

It is the binary nature of our fact finding system that makes the ‘balance of probabilities’ sometimes an uneasy place to be. If the court finds something happened then that is ‘the truth’ that all must abide by for all future dealings with the family. If the court finds something didn’t happen then it simply never did. I am not alone in feeling uneasy about the consequences of this from findings made on the lower standard of proof, particularly when the fact finding exercise is offered as ‘the child’s right’ to know ‘the truth’ about what happened – See comment from the Justice Gap and The Transparency Project in ‘further reading’ below.

However, what is clear is that the Judge must meticulously examine a broad canvass of evidence and not be swayed by any ‘pseudo mathematics’. while I can sympathise with a Judge who attempts to impose some clarity on the analytical process by affording a ‘value’ to the options of suicide, accident, or deliberate killing, this is now clearly identified and rejected as unlawful.