Threshold threshold threshold….
Always coming up like a bad penny. It’s so inconvenient to have to satisfy s31(2) of the Act in order to take people’s children away. Again and again the courts tell us that we really must do it properly – set it out clearly, succinctly, fully – early. Above all don’t forget it till the final hearing (yet still it is left till the last minute). This conversation has been going on since I first qualified.
I’ve given up trying to do threshold as per whatever the current fad is. I just go back to first principles: look at the Act (SIGNIFICANT HARM – ATTRIBUTABLE TO CARE OF THIS PARENT – NOT THAT OF A REASONABLE PARENT…), try and be specific not flabby…More often than not though I’m on the receiving end of a threshold – and can be found asking irritatingly for the LA to identify its primary evidence, to specify how it says the harm is “significant” or how the local authority puts its case on causation as against the reasonable parent of this child (the mere fact that a child is delayed compared to his peers is : NOT. THRESHOLD. The mere fact that a child is exhibiting concerning behaviour is : NOT. THRESHOLD.). I find people roll their eyes at me a lot when I talk about threshold or when I give the *wrong answer* to the question “This case isn’t really about threshold is it?”. Sometimes it really isn’t about threshold, but sometimes the asking of that question is a pretty good indication that the person asking it thinks threshold is obvious but hasn’t actually analysed it.
In November last year* the court forms changed – from a C110 to a C110A. The main change was the merging of an EPO application with a substantive s31 Care application so a LA didn’t have to duplicate work and issue two separate sets of proceedings – very sensible. But another thing happened at the same time. Local authorities were required to set out their threshold in the application form see box 6 of the new form. Shouldn’t really be a problem on the face of it – obvious streamlining no doubt intended to improve efficiency. LAs should of course have analysed and know what the basis of threshold is upon issue in any event – it is but one of many items of work expected to be done in the pre-proceeding stage.
But I have to say, the reality is rather less satisfactory than one might have hope: I have seen an uncomfortably high proportion of rubbish thresholds, not-threshold-at-all-thresholds, and thresholds-mixed-with-general-commentary-and-anxious-handwringing in box 6. I have dealt with several cases where I have had to point out that “that isn’t threshold” and “can you plead it properly please”. I have asked several times “er…where’s your threshold?” and been directed to box 6 only to find a rambling narrative accounts of “why we think this parent is rubbish” or “ten ways in which this child is not doing well, which is probly down to the parents” – which may well be entirely accurate but : IS. NOT. THRESH-HOLD.
This is not to say that threshold is not capable of being met in these cases – in my experience when Local Authorities bring proceedings, more often than not threshold is comfortably crossed on one basis or other. But correct identification of how threshold is crossed is always important and often critical to disposal and questions of risk and proportionality – and to questions of interim removal. [Edit : I’ve put this bit in bold because one reader thought I was perhaps suggesting cases were going through where threshold isn’t actually met. That’s not really my point, although one might ask how you can be properly satisfied its met if you haven’t properly analysed it. My point is that it’s important to identify clearly whether threshold is met AND ON WHAT BASIS. Occasionally because that leads you to the conclusion it isn’t met at all, but more often because it provides focus for looking at what the answer to the case might be.]
Now I haven’t conducted any sort of scientific analysis of this, but my impression is that what is happening is that application forms are (as ever) completed in something of a rush, and the discipline that goes with drafting a separate and specific (interim) threshold is sometimes going out of the window – because the nudge factor is weaker when it’s one box of many. Where once counsel would be instructed for the first hearing would draft threshold (or in house solicitor would specifically prepare the PD documents which each had an identified purpose) – this is just treated as ticked off the list and not thought about unless raised by the representative of the other parties or the court.
I understand very well the pressures that LA solicitors are under when completing these forms. I understand well why it may not be top of their (very long) priority list. So I’m neither having a go at LA lawyers or solicitors generally. But I think this is dangerous. It will lead to cases derailing. A change of a form should not have this effect but my increasing impression is that this form change is leading to sloppiness and we need to tighten up again on thresholds at an early stage. Re B / Re B-S et al reminded us of the importance of analysis – this applies to the factual basis of threshold as much as to disposal.
I’d be interested to know if others have experienced the same or if I am barking up the wrong tree.
*I think it was November, and the dates on the court forms suggest this is so