Threshold again

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

26 thoughts on “Threshold again

  1. Every legal planning meeting I have been in with an LA has identified and analysed threshold, I don’t have extensive experience, but there is no issuing of anything if legal can’t give the court the opportunity to make decisions about children knowing that threshold has been met. Where it is met and there is opportunity to effect change, treatable MH issues etc. S20 has been used if appropriate with a rehab home plan to avoid the added stress of proceedings. You see more widespread practice than I tho’. The LA I am in at the moment is completely obsessed with ensuring threshold is a clear and present danger.

    • That’s good to hear. Like I say, it’s my impression, that is all.

    • Helen, I am surprised that an authority uses S20 when the threshold has been met. If you are saying it has been met because the child is at ‘risk of significant harm’ AND there is clear and present danger then the LA has a legal duty to commence care proceedings. It would be a misuse of S20 to use it in this situation.

      My understanding is that S20 was intended as a service for families under stress, or as a form of respite care, and should be a short-term arrangement, in which the child continues to keep their home base with the parent(s) who gave consent to the S20. Sometimes it is used when the child is on the child protection register and is part of a plan to support the ongoing relationship between the parent and child.

      I am concerned that if S20 accommodation lasts for more than a few weeks the child may develop an attachment to the foster carers; this may lead to uncertainty about where the child’s primary attachments are going to be and have a negative effect on the parental relationship. So, to prevent this kind of ‘drift’ the LA should commence care proceedings as soon as possible.

      You mention the stress of proceedings. However, I would argue that there are benefits in the formality that comes from the use of legal procedures because this offers greater protection to parents’ rights.

      • I agree with what you say to an extent Hilary – s20 without the issue of care proceedings can (and sadly often does) lead to unacceptable drift which is harmful to children and parents. However, during pre-proceedings or whilst (for example) therapeutic or other work is being carried out or whilst someone is in mental health recovery, it may be justified for a short period to ensure that care proceedings are not issued unnecessarily. The problem is a short period becomes and extended period so quickly! Personally, the more abuses / poor uses of s20 I see in practice (including those where “consent” is not appropriately relied upon) the more I wonder if Parliament should ditch s20 for child protection cases and ensure that all cases are brought to court – the cases where it is abused outweigh the benefits I think it brings in practice. There would be no harm in uncoupling the notion of “care proceedings” from removal of children – other than (perhaps) a greater burden on HMCTS / judiciary etc.

        • I agree with what you say about ‘uncoupling’ – care proceedings should not lead automatically to removal of the child. I suggest that courts should give more consideration to the making of a Supervision Order in some cases. I find it helpful to keep in mind a clear distinction between the threshold for legal proceedings and ensuring that decision-making is consistent with the welfare of the child. In some cases it is possible to produce evidence of significant harm but there are good arguments for keeping the child within the family, ONLY with the security provided by a supervision order e.g. if there are reasons for thinking that collaborative work with parents is still possible and the welfare of the child would be harmed by separation from parents. Also, the principle of minimal intervention might apply in this situation.

          • when I say uncoupling I mean that there is sometimes an elision of the two separate concepts – so that people perceive or assume that care proceedings means removal. Of course as a matter of law that isn’t so as a LA can (but rarely does) issue simply asking for a supervision order at the outset.

          • …and even with a care order a child may stay at home.

      • Haha! You think Local Authorities use s20s for respite care. Haha! Parents ask for help, get respite care, and then get told that there have been ex parte meetings so they can’t get their kids back.

        • Well they do sometimes. Sadly they also use it inappropriately for far too long an without the safeguards that come with court proceedings.

    • My threshold was based on a Historic violence in 1991 and none since, the judge found the fresh hold for the LA in that I can suddenly burst into violence and my son could be the target and the victim was a Man?

  2. Slightly tangential to your main point but in my area solicitors for parents & counsel (generally) are still unable to get their heads around fact that Threshold is in C110a. For months the Gatekeeping Order has said that the parents must respond to threshold as set out in C110a. And still they turn up at first hearing saying they have not done a Response because there is no threshold from local authority. And that they want an order for LA to file & serve a Threshold for them to reply to. So annoying and time wasting.

    Coming back to your main point a part of the problem – besides time pressures and lack of staff – is that goddamned drafted by Directors of Children’s Services and approved by the President Social Worker template. Because it includes a separate section on Threshold. And the Social Worker writes it. And sends the statement to you without time to check, edit and get it rewritten. And is it wise to have a massive difference between the threshold in C110a and the threshold in the social worker statement?

    Biggest problem though is time & managers & lack of experience. The managers cut staff to bone and constantly say that lawyers must not provide a gold-plated service. The staff that are left (in midlands many LA have cut child care solicitors by 1/3) are just trying to get cases issued and running. And it is the most experienced solicitors who leave and those left behind do not know that most effective way of drafting threshold is to start with CPC minutes and police disclosure. Look at the social worker statement last.

    As a final rant though my pet hates in responses are –
    – that applies to the other parent not me
    – I have changed since then (threshold has a relevant date. Say you have changed in your statement)
    – I accept some of these allegations but not all of them and I will not say which is which
    – I have made various admissions but I am not going to say whether I concede that threshold is met & I hope you will not notice this (because no-one has ever tried that before)

    • Walklikeacat – thanks for your point about the social work statement template. that makes a lot of sense. If rushed lawyers are drawing on that for the contents of the C110a it explains A LOT.
      I confess by the way to spending a *short* while huffing about saying “where’s your threshold?” only to be pointed to the C110a. I have now cottoned on, but as I say often when I do go there I find myself not much more illuminated as to actually how the LA says threshold is met, although I often get a nice list of “things the social worker is worried about”.

      And you are completely right about your niggles on parents responses to threshold.

  3. The question of whether the threshold has been crossed is always complicated. However, I always found the debate about this – which sometimes got quite heated – useful in thrashing out the issues and clarifying them.

    I think what is happening now is that many social workers are jumping the gun and using ‘safeguarding concerns’ to justify accommodation under sec 20. There has also been a gradual erosion of compliance with the principles underpinning the Children Act 1989, such as working in partnership with parents.

    Many social workers do not have the core skills of engaging parents in constructive work during care proceedings and making sound assessments. There is a curious absence in training of any attention to the core dynamics, experience and methods of doing this work. I suspect that some social workers really want to be therapists. They appear to show a high level of trust in parents, prioritising their child’s needs, but if this approach proves to be incorrect a punitive approach is adopted. During legal proceedings it then becomes apparent they have not done their work in gathering all the necessary information in a comprehensive and systematic way and have difficulty showing that the threshold for significant harm has been crossed.

  4. Last week marked the final act in a criminal trial in Norwich which I and the Sunday Telegraph columnist Christopher Booker had been able to follow in great detail for many months. We agreed that it was one of the strangest and most disturbing trials we have ever come across.
    Twice before, but only under tight legal constraints, Christopher managed to publish reports relating to the trial while it was still unfolding (links to these articles are given below). But last Sunday, when he planned to write again about the trial’s shocking conclusion – with each of three defendants being given life-sentences – the newspaper declined to publish his article, for reasons not related to its accuracy.
    Because his unpublished article raises at least some of the many serious questions about the conduct of the trial which have not been aired anywhere else in the British media, I am publishing it here:

    [Edit : No. You aren’t. Why would you imagine I would publish something about criminal proceedings that a broadsheet newspaper’s legal department have vetoed??]

    Booker’s earlier reports relating to the trial can be found here
    http://www.telegraph.co.uk/comment/11641375/Social-workers-get-the-story-theyre-after.html
    and here
    http://www.telegraph.co.uk/news/uknews/law-and-order/11790298/The-greatest-abuse-would-be-to-indulge-in-a-witch-hunt.html

  5. Sarah Phillimore

    I had this problem this morning. Again, having to point out that vague allegations about people un- named and not documented in trial bundle could not support threshold. I don’t think you are barking up the wrong tree at all.

    For whatever reason, there is a distinct inability or unwillingness on the part of the LA to properly analyse and evidence their thresholds. too much time is wasted on this. I agree that in most cases threshold is likely to be met without much trouble. So it should not be the effort that it is to reflect this in a short written document.

  6. I don’t know who thought that it was a smart idea to include the threshold within the application form (probably the same person as who designed an application form that asks the LA to commit ON ISSUE as to whether this is a case whether they think a Placement Order application will be made at some stage, asks for the gender of the mother, repeats the same information requests over and over, and has an utter fixation about the provision of fax numbers throughout. FFS, does anyone actually fax anything EVER any more?) but it is a bad idea.

    The crafting of a threshold document is a careful task to be thought out carefully and with precision. Even more so now that it is to be condensed into two pages – to borrow from Mark Twain “I apologise for the length of this letter, I didn’t have time to write a shorter one” .

    Putting it in an application form whose entire process robs you of your brain functioning as you slog through page after page saying “Didn’t I already do all of this two pages ago?” and a form that you are completing against a clock is a REALLY bad way of doing it.

    The inclusion within the form drives people to try to produce a document that ought to take an hour or more to do properly within ten minutes.

    And I echo what Walklikeacat says about responses to threshold – it would be really nice if they stopped being pleas in mitigation and actually just did the job. Even if that is “Paragraph 1 (e) as pleaded does not contain anything that would be capable of satisfying threshold even in combination with other elements within the threshold document and should be removed from the document”

    The ghastly social work template statement really isn’t helping in the crafting of a threshold document.

    • Thank you thank you. THAT is precisely what I was trying (and failing) to say about why it shouldn’t be in the application form!!
      Incidentally, thank you to the anonymous LA solicitor who emailed me to say she completely agreed that LA thresholds were rubbish and she despaired!

  7. […] have expressed concern that often LAs are not very good at setting this out clearly. See this post from Pink Tape. But hopefully parents will be able to get at least some idea of the case against them at the […]

  8. This is what HHJ Clifford Bellamy QC has to say about the matter:

    “Threshold documents
    When issuing new care proceedings the local authority is required to file a threshold document. This can be included in the standard application form (the form makes provision for it) though locally it has been agreed that the local authorities will continue to file a free-standing threshold document. When proceedings are issued in circumstances of urgency it may not always be possible for the local authority to draft a detailed threshold document. In those circumstances it is acceptable for the local authority to rely upon an interim threshold document.

    What is happening locally is that interim threshold documents, which should be the exception, are becoming standard. A practice is developing of ‘final’ threshold documents being served along with the local authority’s final evidence and final care plans. This, too, is a practice that must stop. Parents are entitled to know the case they have to meet at an early stage in proceedings. With this in mind, henceforth standard directions on issue will contain an order in these terms: “If the Threshold document filed with the application is not the one upon which the Local Authority wishes to rely for the purpose of these proceedings, such document shall be filed and served by [5 working days]’. This will have the effect that parents and their advocates will know the local authority’s case before they attend the case management hearing.”

    • Ah thank you Norma. Where did you find this? In some guidance or a judgment?

      • Yes it’s in his July newsletter http://www.llfjb.com/updates-from-the-bench/

        It occurred to me a little while ago that Wildblood and Ballamy are movers and shakers and well worth keeping an eye on. Unfortunately, I haven’t worked out how to get their updates automatically, except by Family Law Week.

        I don’t know if you are familiar with Handel’s Messiah? I think that if I were regularly appearing in their respective Honour’s courts I’d be humming to give myself courage “For he is like a refiner’s fire..”

  9. Like HHJ Bellamy, our DFJ has decided that she wants the LA to continue to file a separate threshold.

  10. I agree this matter ought to be important but unfortunately it just seems that when the LA have failed to reach the threshold the judge simply allows them another chance to assess or produce an “expert” to support some sort of negative they can use to reach a threshold that really should have simply been dismissed for lack of evidence

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