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Drafting threshold documents

Contract 2 iStock 000003466551XSmall 146x219LexisPSL Local Government in partnership with Tim Earl, Solicitor to the Council and Head of Legal Services of Suffolk County Council, explains how to draft a local authority threshold document in care proceedings.

What is the function of a threshold statement in care proceedings?

It is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. The threshold statement is the form in which the local authority briefly summarises the acts or omissions of the child’s carers (usually parents) that it says have led to the child suffering or being at risk of suffering significant harm.

Lord Justice McFarlane, giving the main judgment in the Court of Appeal in Re J (A Child) [2015] EWCA Civ 222 reiterated the significance of the threshold statement, endorsing what had been set out by Munby LJ in his View from the President's Chambers (2) of June 2013. The threshold statement should be in a short form and must clearly demonstrate:

'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'

It is essentially an indictment against the parents, making them and the court aware, in short form, of what has led to a need to intervene in the child’s life.

How does the threshold statement relate to the threshold criteria set out in section 31 of the Children Act 1989?

In Re A (a child) [2015] EWFC 11, the President made clear,

'…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.'

The threshold statement is the means to this end. The document is not just a list of concerns. It sets out each of the ‘facts’ the local authority intends to prove occurred. But more than this, each of those facts must be then be shown to have caused, or place the child at risk of suffering, significant harm. A fact that can be proven, but cannot also be linked to such harm is of no relevance. So the presence of (a likelihood of) significant harm is the base criteria for including any fact in the threshold statement.

What else will a well drafted threshold statement achieve?

The threshold statement immediately draws the attention of the court to the significant parts of the case and the evidence. It should not reference the mere background to the case, which is the remit of the social work chronology and evidence.

The threshold statement acts as a reference point throughout the case. It enables the court to focus on the aspects of the case that truly matter. It should not contain minor issues or elements of the case that do not advance the question of the presence or risk of significant harm.

What should a threshold statement contain?

The threshold statement is to be limited in length and scope to no more than two pages.

In his 'View from the President's Chambers (2)', he goes further and gives an example of just how focused a threshold document can be:

'The threshold statement can usually be little more than a page, if that. We need to remember what it is for. It is not necessary for the court to find a mass of specific facts in order to arrive at a proper threshold finding. Take a typical case of chronic neglect. Does the central core of the statement of threshold need to be any more detailed than this?

The parents have neglected the children. They have:

- Not fed them properly

- Dressed them in torn and dirty clothes

- Not supervised them properly

- Not got them to school or to the doctor or hospital when needed

- Not played with them or talked to them enough

- Not listened to the advice of social workers, health visitors and others about how to make things better: and now will not let the social worker visit the children the home...

I think not.'

It would be a bold local authority that prepared a threshold statement quite this brief, but the point is obvious. A threshold statement in this form shows that the local authority is clear and confident in the case it is putting.

In that same passage, the President put to bed the issue of cross-referencing to the evidence,

'…the evidence to support the case [should be] identified by reference to the relevant page numbers in the bundle.'

The evidence behind each of the ‘facts’ the local authority seeks to prove is set out in the wider documentation. It is obvious that the threshold statement can be reduced, if the court can quickly and easily be taken to each relevant piece of evidence.

What are the potential pitfalls for a local authority lawyer when drafting the threshold statement?

In Re A, the President reinforced the need, established by another Re A (A Child) (No 2) [2011] EWCA Civ 12 to rely on facts that can be proven, not make allegations. It is bad practice for the threshold statement to contain a general critique of the parent that relies on assumption or suspicion. If a parent denies the conduct alleged against them, then the local authority must be able to demonstrate, through the evidence it will present, that such conduct did occur.

For example, there is no point in the threshold statement including the following statement:

'It is alleged that the mother smokes cannabis'.

Firstly, the local authority must know whether it can prove this allegation. If it can, it should present it as a fact, not as an allegation:

'The mother smokes cannabis'.

If the mother denies such use and there is no first hand evidence available, then the local authority is not going to be able to prove the allegation. For example, references to a strong smell of cannabis in the flat or associates being known to smoke cannabis will not suffice.

Secondly, the President emphasised what was said by Macur LJ in Re Y (A Child) [2013] EWCA Civ 1337, para 7:

'No analysis appears to have been made by any of the professionals as to why the mother's particular lies created the likelihood of significant harm to these children and what weight should reasonably be afforded to the fact of her deceit in the overall balance.'

And in Re J (A Child) [2015] EWCA Civ 222, McFarlane LJ said that the local authority must:

'…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.'

Sometimes the link between the act or omission and the consequences will be obvious, for example where the facts proved establish that the child has suffered physical injury. Sometimes the link is less clear where it is alleged that there is a likelihood of a child suffering emotional harm or neglect.

In other words, the local authority must, in its evidence and submissions, show why the alleged conduct is significant in the case not simply that it occurred. There is no point in proving a fact if it adds nothing to the case. Continuing the above example, what is the link between the smoking of cannabis and the child suffering significant harm? The fact that something is illegal or antisocial is irrelevant unless the link between the activity and the harm to the child can be proven.

If there is no link, for instance if the mother smokes cannabis with friends on a Saturday night while the child stays with his grandmother, then proving that the mother smokes cannabis adds nothing to the case and it has no place in the threshold statement. A case cannot be built around erroneous or unwise lifestyle choices that do not have a direct impact upon the child.

So, if the local authority seeks to prove that her cannabis use was so high that it left the mother unable to care for the child, when she was the sole carer, the threshold statement could say:

'The child has been neglected:

- when the mother has been incapacitated through the use of cannabis'.

This should be supported by a reference to the page number in the evidence.

What evidence is needed to prove the submissions facts relied on?

A drug test alone would not serve, though it would contradict a denial of cannabis use. The evidence must go further and link the use of cannabis and the neglect. Personal observation of incapacity while in charge of the child, by a social worker or family practitioner would suffice. If challenged, the social work professional can then give oral evidence on what was observed. Allegations by others, eg family members might also be probative, provided the evidence can be relied on, will be maintained and can be called if necessary.

References in the chronology or notes on the file, which are unsupported by additional evidence from the observer, will not suffice. They are likely to be too remote in time or non-specific. If such are to form part of the case upon, the source should be explored and be available. It would be an error to see second or third hand evidence as anything more than background information and background information has no place in the threshold. In essence, do not rely on hearsay evidence, no matter how cogent it may appear, if it is likely to be challenged.

The conduct of this analysis will ensure that the local authority is clear on the strength of its case at the outset, having given careful consideration to the evidence that supports each fact to be proven, before including it in the threshold statement.

Are there any other practical considerations that a local authority should consider at this stage in proceedings?

Additional documents

It is clear that alongside the reduction in the length of the threshold statement, all other filed documents should become more focussed. Analysis is the watchword.

In his View from the President's Chambers (2), Munby LJ says:

'…local authority materials can be much shorter… [and] more focused on analysis than on history and narrative… they must also of course be evidence based.

…focusing on the key significant historical events and concerns and rigorously avoiding all unnecessary detail.'

'We do not want social work chronologies extending over dozens of pages. Usually three or four pages at most will suffice. The background summary in the social work statement, particularly if it is cross-referenced to the chronology and avoids unnecessary repetition of what is already set out in the chronology, need be no more than a page or two.'

With the renewed focus on reducing in the size of court bundles, expect these principles to be revisited.

Social engineering

In Re A (A child) [2015] EWFC 11 the President raised the well-established principle that parents who are unable to offer a premium standard of care can still parent their child without the need for state intervention. He cited Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, para 50:

'…society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.'

He also approved the judgement of HHJ Jack in North East Lincolnshire Council v G & L [2014] EWCC B77 (Fam) where he said:

'The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.'

This principle needs to be applied when drafting the threshold statement. Check that the facts, individually and as a whole, carry sufficient weight. If they demonstrate parental inadequacies that are not sufficient to meet the threshold criteria, then they may give a false impression of the apparent strength of the case.

This article – in partnership with Tim Earl, Solicitor to the Council and Head of Legal Services of Suffolk County Council – was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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