Low pain threshold

Threshold is something that pains me.

I frequently groan when reading them, I get a headache when drafting them, and I am not even sure what they are supposed to look like any more…

First there was a time when threshold was routinely forgotten and cobbled together on the back of a fag packet at the last minute…. That was deprecated.

Then developed a practice of proper schedules of findings sought, particulars if you will of the case the LA wished to prove. They became massively detailed, bloated, chuck it all in and something will stick, cite every page reference that vaguely supports your proposition affairs. And still they sometimes get forgotten…

Now we are required by statute to condense our threshold documents onto a piece of paper no bigger than a rizla.

I exaggerate for effect of course, but to use a gratuitous smoking related pun, threshold is a drag. To do it again – a wafair theen threshold monsieur?

The President has made it clear in his “views from” that threshold has to be pithy, “no more than a few lines”. This provoked concern (I know we aren’t allowed to have “concerns” [see A Local Authority v A Mother & Ors [2013] EWCC 4 (Fam)] in court anymore but I think we’re allowed them in private – as an aside nonetheless my oppo recently asked a Guardian in xx to confirm that the “concerning concerns” she had outlined in her question were indeed “concerning”. He agreed they were. He did look concerned. Concerningly so. To the extent I almost became concerned myself.)

Where was I? Yes, this “no more than a few lines” has provoked concern. It sounded to some a little tiny weeny bit too close to saying “parents rubbish, risky, concerning, danger will robinson, game over”. Does an LA’s “concern” amount to reasonable cause to believe? And if it does, does sufficient quantity of “concern” get you over the balance of probabilities in the absence of actual, you know, evidence?

I’m being a little unfair. In fact what Sir Munby said in View Deux was a threshold could look comme ci :

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 [the evidence to support the case being identified by reference to the relevant page numbers in the bundle].

My personal view is that whilst a threshold ought to be concise it does also need to be comprehensive and specific. Comprehensive does not mean it needs to set out each and every instance relied upon. But it does need to serve as a document which clearly tells the court and the parents the range and nature and extent of the concerns relied upon, and it needs to be one which assists the parties and the court in taking a reasonable view as to whether the threshold is in fact likely to be made out.

And when I say “the parties” I mean all of them. Including the LA. Just like the welfare checklist, or a social work template, a threshold document is a tool to aid analysis – except in a genuine emergency a Local Authority should have properly analysed the basis of threshold – and addressed its mind to the question of what evidence is or might be available to prove that threshold – before issue. However. It ain’t happening reliably in my recent experience. And a three line “parents crap” sort of threshold permits and even disguises continuing flabby thinking by LA lawyers.

Personally I struggle with the President’s suggested typical threshold – its little more than a list of commonly alleged failings of parents. It tells one little about this case and this family. I think it needs a little more flesh on the bones. This is a size zero and I don’t think that’s healthy. Somewhere between zero and supersize please.

And more fundamentally than this an interim threshold document at some stage will need to be converted in to a final threshold document. Which is not at all the same thing. It may well be easy to skip over a “reasonable cause to believe” hurdle, but this does not mean that the balance of probabilities will be surmounted without proper evidence and properly thought through pleading.

I favour threshold documents which itemize the types of harm relied upon, and give examples of these, with a limited number of page references to the best and clearest example of the “concern” that the LA seeks to evidence. That bracketed paragraph is what saves the pithy threshold and drags it just back to the right side of the line marked “useful and fair”.

And the reason I favour this is not just because I think it is right and fair that a LA should plead its case clearly and transparently at the outset, but because I think it makes for a more efficient process. A threshold in the modern Munby style is virtually incapable of agreement by parents unless there is good referencing to primary evidence (er, hello has anyone done a CMH at day 12 when primary evidence has actually been available yet? I haven’t). Ask any parent lawyer how likely you are to get a parent to agree to a blanket assertion of “kids not fed” and they will laugh wryly. Ask a parent lawyer if it helps to have a specific example to talk through with a client and they will give you a different answer. If you want a parent to concede threshold give them concrete and clear examples of their failings, and do it early. If you want a parent to get realistic advice and to avoid wasted court time give them their lawyer the materials to work with. I won’t advise a client to concede something the LA has not evidenced – I would be negligent to do so.

Threshold when not a genuine issue should be conceded. We have to draft threshold documents that aid that process. Firstly to enable proper concessions to be made and fully understood by parents. Secondly to enable parents to respond to criticisms of them in the context of their parenting and conduct during proceedings – it may be a short window in which to evidence insight and change but lets give them the best shot possible. And thirdly so that where the LA wishes to prove something that is (reasonably or unreasonably) not conceded it can be fully and properly pleaded and evidenced and tried either at a split or rolled up hearing.

We have recently received local guidance warning us off the inclusion of any references in our pithy thresholds (unless essential to the meaning of the document). It is said that this is to reduce the burden on parents lawyers, who are forced to go through and take instructions on each and every reference. I agree that too many page references are unhelpful but there is a danger here of going too far – references should be illustrative not exhaustive. The truth is that Local Authority practice has still not caught up with the demands of the modernization programme for early social work and legal analysis of facts and evidence, or at any rate it isn’t yet happening consistently (in truth why would we have expected such a big shift as the clock struck midnight on 1 July?). Requiring LAs to plead properly would be a device to remind them of the essential need for this to be carried out early on, and for legal and social work teams to work cooperatively and to exchange information.

There is no consensus view on this vexed issue of threshold. And we could disappear into our own collective navels if we agonise too long over it (I’m not sure what a collective navel is btw). Ultimately I don’t think there is any way to standardize or prescribe what all thresholds should look like. The drafting of them is a question of judgment and experience and depends on the needs of the case. Whilst in my experience they are either usually way too detailed or way too brief I recognize the difficulty of striking the right balance.

Gosh, that’s given me a headache. I need to lie down in a dark room.

10 thoughts on “Low pain threshold

  1. Fag packets, Lucy? Wash your mouth with soap.

    Between the health fiends and the types who do not know that fag=cigarette but know what else it means you will be in trouble.

    UPPER CLASS ENGLISHMAN: Of course I know Bloggs, he was my fag at Eton.

    SURPRISED AMERICAN: You guys sure are frank about these things!

    • Hmm. I think fag may mean different things in different contexts, but even americans now know that when spoken by an englisher it means only one thing.
      But thanks for your concern… 😉

  2. Could you consider rephrasing “Requiring LAs to plead properly..” to “Permitting &etc”?

    We are not all bozos unaware of the problems that you so skilfully set out. Some of us even read your blog and agree with its er… “concerns”. Some of us are also concerned about fairness and efficiency, even to the extent that we wish to practise it.

    It’s not only lawyers in private practice who have to deal with their client’s peculiar characteristics, either.

    • Hermione,
      I KNOW you are not all bozos. Which is why I refer twice to the lack of consistency rather than condemning all LAs and all LA lawyers. There are lots of good LA lawyers, social workers and shining examples of good practice. But it is very patchy (no doubt partly due to workload / lack of resource, adapting to new ways of working, difficulties with clients etc). There is inconsistency within my own branch of the profession too and I would not be so foolish as to suggest my own thresholds are models of perfection either.

  3. Entirely with you, Lucy – which is why I prefer “Permitting” rather that “Requiring” in your article, because at the moment, as your article sets out, what the LA can or can’t do is inconsistent between courts and between judges and is to some extend unclear. It certainly appears to be limited by the national and local guidance to which you refer. That’s what we are addressing, really, isn’t it?

    Perhaps it’s preferable to consider this issue by looking at the outcomes that we are all seeking i.e. clarity, rather then to frame the problem as one of “LA practice”. And I entirely agree with what you’ve set out in the article: my problem is how to get there. I hope I don’t appear to be over defensive of LAs here but internally this is something that LAs are finding to be difficult. I don’t at all like the suggested threshold but I am very aware from whence it came and, indeed, of its genesis (which is why I’m posting under this moniker). The issue of facts to be found appears in some cases to be considered separately from the threshold, which is confusing.

    Consider also the pressure on courts now to reduce the issues and hearing time in a case and the pressure put on LAs as a result. It isn’t ok for an LA to back down just because it’s convenient for the court: the court should make a decision on the basis of arguments put before it. And in my opinion doing just that is also quicker than repeatedly insisting that the LA “seek instructions”.

    You may think that I am defensive: I hope to be constructive. My point at bottom is that as an LA lawyer I want to do the very thing that you ask for. As Jane Austen might say, when I’m considering the national model that you’ve referred to “every feeling is offended”.

    • Hermione,
      I don’t disagree with any of that – but there is an issue with both the guidance on threshold and the analysis underlying the thresholds actually produced by LAs – and the sentence you are referring to is focused on that issue with LA practice (some LA practice). I take the point that in many ways the guidance doesn’t help LAs to get it right – but I don’t think it’s necessary to amend the article as you suggest, not least because this discussion is attached to it for anyone to see and consider in conjunction with the original post. In short, I agree with what you are saying, it just isn’t what I was trying to say with the sentence you are taking issue with. I don’t actually think our views are divergent on the issue of threshold and the difficulties faced by all of us at present.

  4. It matters little whether the threshold is short or long clear or muddled.The vast majority of interim care orders are not contested by supine legal aid lawyers…..
    Professional losers……,

  5. That is to say the lawyers say “we shall neither oppose nor agree” and the clients are gagged.

  6. I think that the ribbing remarks might have been prevented if you had edited the words ‘fag’ and ‘rizla’ out of the blog. Bravo to you, brilliant as always. A nod to Andrew, I shall be sending my man-lillet’s bill to you sir.

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