Re J, Thresholds and “Tottering Edifices”
The judgment in Re J (A Child) [2015] EWCA Civ 222 is noteworthy in that the Court of Appeal gives a resounding endorsement of the President of the Family Division’s warning in Re: A [2015] EWFC 11 that Local Authorities must take care in preparing and presenting a public law Children Act 1989 application, lest they be found to have (in the President’s immortal words) constructed a “a tottering edifice built on inadequate foundations”. The full judgment can be found at http://www.bailii.org/ew/cases/EWCA/Civ/2015/222.html
You will likely be aware that in Re: A the President of the Family Division set out criticism of an LA’s failures to properly set out the logical foundations of its arguments/ show a connection between threshold and its argument that those facts led to a conclusion that a placement away from the family was necessary and proportionate. The judgment also highlighted concerns re: the misuse of section 20 CA 1989. The full judgment can be found at http://www.bailii.org/ew/cases/EWFC/HCJ/2015/11.html
The aspects of Re: A which focused on threshold have now been endorsed by the Court of Appeal. The judgment is binding precedent. The following aspects of the two substantive judgments are noteworthy:-
The Judgment of McFarlane LJ
This contains:-
- Excerpts from the social worker’s statement at first instance are included (43) and provide a valuable insight as to how future courts might answer the question of “whether [a similar] statement of the local authority’s ‘concerns’, even taken at its highest on the basis of the factual evidence, is sufficient to support a finding that it is necessary for J to be placed permanently away from his parents and adopted.” (44);
- An endorsement of the President’s remarks in Re: A in which North East Lincolnshire Council v G and L [2014] EWCC 877 (Fam) was approved and it was stressed that that Courts considering care applications should recognise that, “The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.” (44);
- An endorsement of the President’s guidance in (View from the President’s Chambers: the process of reform: the revised PLO and the local authority [2013] Fam Law 680 (June 2013)) in which he states that ‘the threshold statement is to be limited to no more than 2 pages’ (original emphasis) and that ‘it is not necessary for the court to find a mass of specific facts in order to arrive at a proper threshold finding’ and, in answer to the question ‘what does the court need?’ he answers:
“It 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.”
- An endorsement of the President’s guidance in Re: A regarding, “…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” (46)
The Judgment of Lord Justice Aikens
This contains:-
- Clarification that the formulation of section 31(2) Threshold proposed findings of fact must be done with the utmost care and precision and that the document :-
- must identify the relevant facts which are sought to be proved; and
- can be cross-referenced to evidence relied on to prove the facts asserted;
- should not contain mere allegations (“he appears to have lied” etc.) ( 55(iv) )
- a useful summary of the eight fundamental principles underlined by the President in Re A at paragraph 55,
“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]”.
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] EWCA Civ 535, [2008] 2 FLR 625
It is not yet clear as to whether the line of authorities which runs from North East Lincolnshire Council v G and L [2014] EWCC 877 (Fam) and culminates in Re: J represents a significant raising of the judicial threshold for a finding that permanent removal is necessary and proportionate but that surely must be the fear.
All local authority practitioners should now be prepared for arguments that the local authority, though it has proved that the parents have substance misuse and/or a history of domestic violence, has failed to show why this means the children cannot return to the parents’ care. It is not inconceivable that local authorities will face equivalent arguments at the interim stage.
What is clear is that the local authority will have to be meticulous in presenting to the Court its reasoning as to why a finding of fact of significant harm (or risk thereof) leads logically to the conclusion that a child cannot be placed with its parent and, in the case of a care plan of adoption, why “nothing else will do”.
KYE HERBERT
Barrister
Leicester City Council