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Child Care Solicitors

Is the Re A threshold being complied with? (14 April 2021)

Date: 14/04/2021
Duncan Lewis, Child Care Solicitors, Is the Re A threshold being complied with?

The number of children in care has recently reached an all-time 10 year high. It has risen by 28 per cent in the last decade with the system on the verge of a breaking point. There can be many probable causes for this, one being in the cases of pleading threshold, the extraneous s31 Children Act 1989 is not complied with. S31 sets out the fundamental foundations for care orders and supervision orders being granted.

Under s31 (2)(a) the court may only make a care order or supervision order if it is satisfied that the child is suffering or is likely to suffer significant harm and (b) that harm or likelihood of harm is attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or the child is beyond parental control. Although much importance is given to the s31 threshold, it does not seem to be strictly followed by local authorities as they appear to focus more on assumptions rather than facts.

Three fundamental principles of s31 are increasingly overlooked. The first being fact finding and proof. It is upon the local authorities to prove on a balance of probabilities, the facts upon which is seeks to rely. It is imperative these findings of facts are based on evidence and not on assumption, speculation or suspicion.

The second fundamental principle which is commonly overlooked is the need to establish a link between facts relied upon in a threshold document and the conclusion that the child has suffered, or is at risk of suffering, significant harm. Although there are many occasions where linkage will be evident as facts have been proved by physical harm, there may be occasions where linkage is less obvious where the allegation is only that the child is at risk of suffering significant harm.

The third, the temptation of social engineering and the need to recognize the inevitable diverse and unequal standards of parenting. In Re L (Care: threshold Criteria) [2007] Hedley J eloquently stated there must be ‘willingness to tolerate very diverse standards of parenting, including the including the eccentric, the barely adequate and the inconsistent’. Unfortunately, it is clear from the number of care cases being brought there is reluctance to accept such standards of parenting.

Despite the landmark case of Re A (A Child) [2015] EWFC 11, there still remains major concerns about Re A threshold compliance. The local authority appear to stray from the requirement of ensuring the threshold is supported by stated facts. There is a lack of precision which occurs on behalf of the local authorities. It was reiterated by Lord Justice McFarlane in the case of Re J [2015] EWCA Civ 222 that there needs to be a linkage between the individual facts relied upon by the local authority and the requirements of s31 of the Children’s Act 1989.

In Re A (a child) a higher burden was placed on the local authorities, rather than just merely stating facts, a requirement was put in place which obliged them to demonstrate and justify the conclusion that the child has suffered, or is at risk of suffering significant harm of the type being claimed. This burden has been correctly imposed however, it seems the local authority need a reminder of such a burden as they tend to diverge from such.

Author Erum Naz Khanzada is a caseworker in our Luton based child care team. She is supervised by solicitor Sophie Rayment .

Please contact Erum by calling 020 7923 8460 or emailing erumk@duncanlewis.com
Please contact Sophie by calling 020 7014 7388 or emailing sophier@duncanlewis.com

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