The Court of Appeal has held that in care proceedings, the formulation of threshold issues and proposed findings of fact must be done with the “utmost care and precision” by the Local Authority (per Aikens LJ, Re J (A Child)  EWCA Civ 222 at ). While this is a laudable approach, in practice, time pressures and fast-developing cases can mean that the initial drafting of the threshold criteria in box 6 of the C110A form is a challenging and hurried task. This post sets out some key tips for drafting thresholds – either in the C110A or any subsequent standalone threshold document.
1. Keep the law front of mind
Thresholds can quickly become unwieldy by virtue of the vast amount of material generated during pre-proceedings. When drafting, maintain sight of the purpose of the threshold criteria by keeping the law – specifically the test for making a care or supervision order in section 31(2) of the Children Act 1989 – front of mind.
Section 31(2) provides that the court may only make the order if it is satisfied that:
the child concerned is suffering, or is likely to suffer, significant harm; and
that the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given to him/her, if the order were not made, not being what it would be reasonable to expect a parent to give to him/her; or the child’s being beyond parental control.
2. Make it succinct
In June 2013, in his “View from the President’s Chambers”, Munby P wrote that the threshold statement can usually be little more than a page – if that. It’s important to keep the content short, analytical and evidence-based. The threshold criteria should be set out as a pleading document – no extra narrative about the case is needed. There’s also no need to restate the law of section 31(2); get straight into the facts.
3. Identify the facts you want to prove
The threshold criteria must identify the relevant facts which you seek to prove. In Re J, Aikens LJ noted that the distinction between a fact and the evidence alleged to prove that fact is “fundamental and must be recognised”. When drafting the threshold criteria, you should cross-reference to particular evidence relied on to prove the facts. However, ensure the facts themselves are asserted and do not contain qualifiers such as “allegedly” or “appears to have”.
Helpfully, Munby P also noted that it’s not necessary for the court to find “a mass of specific facts” for it to arrive at a proper threshold finding. He gave an example of a case of chronic neglect, and said for the central core of the statement, the following detail (or lack thereof!) would suffice:
“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].”
4. Be specific regarding harm and why it’s significant
In Re B (A Child)  UKSC 33;  1 WLR 1911, Lady Hale observed (at ) that when deciding whether the threshold is crossed, the court should identify “as precisely as possible” the nature of the harm which the child is suffering or likely to suffer. The threshold should be drafted with a view to assisting the court with this process.
When pinpointing the harm suffered – or likely to be suffered – keep in mind the phraseology and definitions used in the Children Act 1989. Section 31(9) defines the meaning of harm as “ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another”. Development is further defined as “physical, intellectual, emotional, social or behavioural development”; health as “physical or mental health” and “ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.
Lady Hale also observed that the court should “identify why and in which respects the harm is significant” and added that the threshold would be pointless if it could be “crossed by trivial or unimportant harm” (at ). It’s important therefore that the threshold outlines why the harm is significant. Lady Hale considered that the dictionary definition of significant – “considerable, noteworthy or important” – is helpful in this regard.
Another factor to consider is section 31(10), which provides that in considering any impairment of the child’s health or development, whether it is significant harm involves comparing that child’s health or development with “that which could reasonably be expected of a similar child”. Munby J – endorsed by the Supreme Court – has held that in considering a similar child, “the court must always be sensitive to the cultural, social and religious circumstances of the particular child and family” (In re K, A Local Authority v N and Others  EWHC 2956 (Fam),  1 FLR 399 at ). In Re B, Lord Wilson observed that in contrast to any impairment of the child’s health or development, “the concept of ill-treatment is absolute” (at ).
5. Causation is crucial: Make the link between lack of parental care and significant harm
It is essential that the threshold shows that the lack or likely lack of reasonable parental care caused the suffering – or likely suffering – of significant harm by the child.
It is well established that the court will be willing to tolerate “very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent” (per Hedley J, Re L (Care: Threshold Criteria)  1 FLR 2050 at ). In Re J, Aikens LJ endorsed Munby J’s judgment in Re A (a child)  EWFC 11, noting that “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” (at [56vi]). Rather, Aikens LJ opined, “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.”
In practical terms, in Re A, Munby P outlined that in drafting the threshold, there is “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" (at ).
6. Be alert to the subtleties of “likely” significant harm
If drafting the threshold for a case in which actual significant harm has not yet been suffered, be alert to the need to show the likelihood that it will be suffered in the future. This requires consideration of the likelihood that the parents’ future behaviour will constitute a lack of reasonable care. It also requires considering the “relationship between the significance of the harm feared and the likelihood it will occur” (per Lady Hale, Re B at [193(5)]).
Whereas facts in dispute must be proved on the balance of probabilities, “a likelihood of significant harm means no more than a real possibility that it will occur”. However, “a conclusion to that effect must be based upon a fact or facts established on a balance of probabilities” (per Lord Wilson, Re B at ). In that case, Lady Hale noted that a reason for adopting a test of “real possibility” to show likelihood, rather than "more likely than not", is that “it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future” (at ).
When drafting the threshold, be careful not to focus merely on the “risk” that significant harm will occur - the court needs to be satisfied by the evidence that the harm is in fact likely.
Rebecca Cohen is a second six pupil barrister specialising in criminal and family law. Rebecca was formerly a research assistant at the Law Commission.