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.