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Re J: A Lesson on Threshold and Logic

Alex Laing, pupil, and Radhika Handa, barrister, of Coram Chambers, consider Re J in which the Court of Appeal picked up a number of the themes articulated by the President in Re A.

Alex Laing, Coram ChambersRadhika Handa, barrister, Coram Chambers

Alex Laing, pupil, and Radhika Handa, barrister, both of Coram Chambers

With the proclamation of the President of the Family Division in Re A (A Child) [2015] EWFC 11 still echoing in the valleys below, the Court of Appeal has issued its own bellow.

In the recent case of Re J (A Child) [2015] EWCA Civ 222, a "rather shocking case" (per Vos LJ, at [53]), McFarlane, Vos and Aikens LLJ pick up a number of the themes articulated by the President in Re A [2015] in what is an(other) emphatic pronouncement to judges and practitioners in the family justice system: we must all understand the principles underlying Part IV of the Children Act 1989, and the forensic process it demands.

This article distils the Court of Appeal's judgment. The focus is the process of logical reasoning demanded by care cases at the threshold stage: the issue on which their Lordships' concerns coalesce. We suggest that the lesson to be derived from the judgment is a renewed emphasis on the basics of (1) making reasoned findings of fact (2) as part of a specific and individualised threshold (3) in which the link to significant harm is rigorously identified.

Care cases: general principles
Before turning to the facts, we might helpfully begin with the judgment of Aikens LJ, penned for general application. There, in two pithy paragraphs, Aikens LJ sets out a comprehensive summary of the fundamental principles to be applied in care cases, particularly where the care plan is for adoption, as canvassed at length by the President in Re A [2015].

Describing the President's judgment as one "that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases" , Aikens LJ offers his précis in the following terms. At [56]:

i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that "nothing else will do", when having regard to the overriding requirements of the child's welfare.

ii) If the local authority's case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent "does not admit, recognise or acknowledge" that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern "has the significance attributed to it by the local authority".

iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing.  If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in "great,  or indeed insuperable" difficulties in proving the fact or matter alleged by the local authority but which is challenged.

iv) The formulation of "Threshold" issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations ("he appears to have lied" etc.).

v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, "justify the conclusion that the child has suffered or is at the risk of suffering significant harm" of the type asserted by the local authority. "The local authority's evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]."1

vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of "those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs"   simply because those facts are established.   It must be demonstrated by the local authority,   in the first place, that by reason of one or more of those facts,  the child has suffered or is at risk of suffering significant harm.   Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that "nothing else will do" when having regard to the overriding requirements of the child's welfare.     The court must guard against "social engineering".

vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall. 

viii)  In considering a local authority's application for a care order for adoption the judge must have regard to the "welfare checklist" 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] 2 FLR 625.  

Re J [2015]: the facts
J's mother was 16 at the time of J's birth and had spent the majority of the preceding three years in local authority care; J's father was three years older. Prior to J's birth, the mother was placed, with her co-operation, in a foster home that could accommodate both herself and the baby. When the foster placement broke down, she moved, shortly after J's birth, to live in a second mother and baby foster placement. That placement broke down too, in December 2013, when the mother left the foster home. Since then, J continued to be looked after in foster care on his own.

The parents underwent a community-based parenting assessment in early 2014, which recommended that J should not be placed in their care. Whilst the assessment

"…identified a number of positives about the parents. This is not a case where features such as learning disability, addiction to Class A drugs or alcohol, mental health or concern over sexual matters feature at all", at [6],

the recommendation was based on:

"…an apparent inability by the couple to demonstrate co-operation and motivation to engage fully in the assessment process, a difficulty that they had in accepting advice from the workers, evidence of stresses within their relationship and an inability to demonstrate "any significant insight into the concerns regarding their care of J". In addition there was concern over the father's admitted use of cannabis both at an early stage prior to J's birth and also in the period following J's removal from the mother's care… the assessors identified possible evidence of domestic violence between the mother and the father", at [6], both per McFarlane LJ.

With other family members excluded as potential carers, the care plan developed by the local authority was for adoption, in which they were supported by the Children's Guardian's recommendations.

The judge heard three days of oral evidence before adjourning for written submissions and judgment: a care order and a placement order were made.

The appeal was brought by the mother and supported by the father; the Court of Appeal had little hesitation in granting it and remitting the case to be re-heard. McFarlane LJ found that "the judge's judgment represents a wholly inadequate evaluation of the important issues that fell for determination", at [2].

Threshold: a thorny issue
From these factual roots sprouted a thorny legal issue: threshold. The parents largely conceded the findings – however, they did not agree in the court below that threshold was crossed. That, as found and proved by the judge, read as follows:



4. The local authority relies upon the following facts:

a) (Mother) and (Father) have lacked positive role models.

b) (Mother) and (Father) have not always been honest with professionals. For example:

i) During the course of the parenting assessment the first respondent was not initially honest about how she came to sustain a black eye; and

ii) The second respondent, initially, failed to disclose the extent of his cannabis misuse.

c) (Mother) and (Father) have failed to consistently engage with professionals and accept the support provided.

d) …

e) (Mother) and (Father) have shown a lack of understanding with respect to domestic abuse and the impact this has on a child. Prior to the birth of (J) there was an incident whereby both parents injured each other. (Mother) hit (Father) with a shoe and (Father) bit (Mother). On 1 March 2014 the police were contacted by a member of the public with regards to an incident of domestic abuse between (Mother) and (Father).

f) (Mother) and (Father) lack appropriate positive support networks.

g) (Father) has a history of cannabis misuse. On 27 January 2013 he received a caution for possession of cannabis.

h) Throughout the assessment process (Mother) and (Father) have displayed emotional immaturity."

The Court of Appeal was troubled by three points in particular. Each permits of broader application: (1) failure to make findings of fact; (2) generalised drafting; (3) lack of linkage.

(1) Failure to make findings of fact
On appeal, the argument on behalf of the mother emphasised what was described as the judge's failure "to identify and/or make findings of fact that would support a finding that the s.31 threshold criteria were established in respect to J", at [28]. The submission was advanced by the father too, who argued that the lack of such findings stemmed from the absence of any effective analysis of the evidence, which was itself exemplified by "the complete absence of any reference to the father's evidence", at [31].

It was submitted that such an approach fell foul of Sir James Munby P's dicta in Re A [2015]:

"I add two important points which I draw from the judgment of Baker J in Devon County Council v EV and Ors (Minors) [2013] EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?", at [6].

It was also argued that as a point of logic the approach precluded the judge from finding the threshold met and from undertaking the required welfare and proportionality evaluation.

To McFarlane LJ, there was great force in these arguments. He noted:

"Having heard oral evidence over the course of three days, it was incumbent upon the judge to offer an evaluation of that evidence. For the judge not to mention the oral hearing at all must beg the question why, if the oral material was not, in his view, relevant to the issues, the judge allowed the oral hearing to take that amount of time", at [41].

As set out earlier in this article, Aikens LJ examined this point in the context of a local authority's role. At [56 (ii)]:

"…the local authority must adduce proper evidence to establish the fact it seeks to prove… it is for the local authority to prove it [a failure to admit, recognise or acknowledge] is the case and, furthermore, that the matter of concern 'has the significance attributed to it by the local authority'."

It is of course a basic but fundamental part of the forensic process that a judgment makes clear not simply what evidence was heard or read, but also the court's analysis of that evidence and any findings of fact made.

(2) Generalised drafting
A second complaint made by the Court was that a), b), c) and h) of the threshold, set out above, were drafted in general terms, without reference to specific factual matters. The inevitable result is a breakdown in the process of logical reasoning: without reliance on specific facts, the required links cannot be woven with the sufficient degree of logical rigour.

Indeed, the quarrel with generalised drafting goes beyond the lack of assistance it affords the court in surveying the evidence and making 'findings'. At a fundamental level, the Article 6 rights of the parents demand that they know, in detail, the case against them.

As an aside, McFarlane LJ helpfully noted that none of the above should sit uncomfortably with the President's expressed view on the format and length of 'threshold statements'. Sir James Munby P having noted that: "the threshold statement is to be limited to no more than 2 pages"; "it is not necessary for the court to find a mass of specific facts in order to arrive at a proper threshold finding" (my emphasis); and, the court 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" (all, View from the President's Chambers: the process of reform: the revised PLO and the local authority).

For many practitioners, however, the two may not make a comfortable fit: there is an obvious tension between the thorough, forensic analysis (quite properly) demanded by the Court of Appeal and the requirement of brevity. Taking this a step further, one could trace that tension through family law more broadly: are not the demands as to bundle length and the 26-week target examples of the same?

(3) Lack of linkage
Linkage to significant harm is fundamental to threshold: it must be at the forefront of the draughtsman's mind. In short, a 'threshold statement' is not a bald assertion of 'findings' sought: the 'findings' must be linked to the significant harm that the child has suffered, or is likely to suffer, and the nature of such harm must be identified.

That this must be right is clear for two reasons. First, because it is what section 31 of the 1989 Act demands. To return to the President in Re A [2015]:

"The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A+B+C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority's case was that the father "lacks honesty with professionals", "minimises matters of importance" and "is immature and lacks insight of issues of importance". May be. But how does this feed through to a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority's evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts." (Emphasis in original).

Second, because a failure to do so risks a degree of social engineering2 that is ethically, socially and practically impermissible. Here, practitioners should remember the famous quote of Hedley J on "fallible humanity" (Re L (Care: Threshold Criteria) [2007] 1 FLR 2050), or the more recent exposition of the same by HHJ Jack, at [16] in North East Lincolnshire Council v G and L [2015] EWCC B77 (Fam), as cited approvingly by McFarlane LJ, at [44]. In these circumstances, Hedley J's sentiments take on a new vibrancy and ought to be seen as the starting point in care cases, rather than the desperate submission of an almost-defeated parent.

The need for linkage was picked up by Aikens LJ too. As set out above, at [56 v)]:

"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."

Looking beyond threshold
The importance of deploying a rigorous approach to the drafting of the 'threshold statement' is not confined to threshold itself. It is a vital step on the path to welfare determination.

Without an intellectually thorough and context-specific bedrock of 'findings', whose link to significant harm is traced in full, and whose relationship with the care plan is similarly articulated, a court is logically precluded from completing the welfare and proportionality evaluation required by section 1(1) and (3) of the 1989 Act, and by the child's and the parents' Article 8 rights.

Without creating new law, Re J [2015] acts as a salutary reminder, and one communicated in the strongest terms: the higher tiers of the Family Court are intolerant of illogical reasoning and superficial analyses. On this view, Re J [2015] is another milestone on the Re B (A Child) [2013] UKSC 33 pathway – it is the latest missive against "sloppy practice" (Re B-S (A Child) [2013] EWCA Civ 1146, per Munby P).

In short, and to return to those well-worn words of Munby P:

"It… [the sloppy practice] must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high", at [40] (Re B-S [2013]).

When it comes to the forensic process, then, it is time to go 'back to basics'.

[1] Re J [2015], at [55].
[2] It is, the authors would argue, the degree of social engineering, rather than the social engineering itself, which is impermissible. As David Bedingfield notes: "When a court removes a child from his parents who have abused that child, that is a form of social engineering. The question, however, is where one draws the line" (Lawyers, Social Workers and the Proportionality Test, 9 March 2015).