Before a tribunal can do a attention order, it must be satisfied that the ‘threshold criteria’ in Section 31 of the Children Act 1989 have been met. [ 1 ] The order must besides advance the public assistance of the kid. [ 2 ] The chief consequence of a attention order is to give parental duty for the kid to the local authorization. [ 3 ] If a attention order is made, the kid can be removed by the local authorization at any clip. [ 4 ] The threshold standard, hence, play a important function in that they prevent attention orders being made merely based on what is in the best involvements of the kid. [ 5 ] However, as this paper will show, the threshold for province intercession at assorted phases of the kid protection procedure has been highly controversial.
Section 31 Children Act 1989: Threshold Standards
One of the great jobs in the jurisprudence of kid protection is that if the incorrect determination is made, great injury may ensue. As Bainham said: “The jurisprudence in this country has to strike a careful balance between enabling the protection of kids at hazard of injury, with protecting the rights to esteem for household life for kids and their parents” [ 6 ] Not surprisingly, there is significant instance jurisprudence on the reading of s.31 of the Children Act 1989 and the House of Lords have considered their reading in some of import instances which will be assessed afterwards. [ 7 ] An analysis would be made about whether the tribunals have interpreted the threshold standard in a rigorous or slack manner. If interpreted in a rigorous manner, this would connote that it would be more debatable for the local authorization to fulfill the evidences for a attention order.
Under the first limb of threshold, the local authorization must demo that the “child concerned is enduring, or is likely to endure, important harm” when using for a attention order. [ 8 ] Although rather straightforward, there have been concerns about when the alleged province of personal businesss must be shown to be. [ 9 ]
InRe M[ 10 ],the cardinal issue was the significance of ‘is’ in the threshold standards. In this instance, the children’s male parent had murdered their female parent. Three of the four kids were placed with their aunt. The staying kid was placed with surrogate carers, but subsequently joined her aunt. However, the local authorization still wanted a attention order merely in instance it became necessary to take the kid from the aunt’s house. By the clip the instance came to tribunal, it was difficult to state that the kid was, at that clip, enduring from important injury or that she was likely to. Their Lordships hence explained that the right trial was “whether the kid was enduring from important injury at the clip when the local authorization foremost intervened” . [ 11 ] Given that reading of the threshold, this was clearly satisfied. That determination is clearly right, as their Lordships indicated or else it would be hard for the local authorization to obtain a attention order in instances where kids were put in first-class attention. [ 12 ] It was a slack reading of the threshold standards as a rigorous reading would hold made the jurisprudence hard to run.
‘Likely to endure important harm’
The alternate land on which the local authorization can fulfill the first limb of the threshold standards under s.31 ( 2 ) ( a ) of the Children Act 1989 is the likeliness of future important injury. One of the major issues that local governments brush is that anticipations that child maltreatment will happen are hard to do. Removing a kid on the land of bad injury is controversial as it is impossible to cognize whether or non the injury would happen. [ 13 ]
InRe H[ 14 ],there were several issues for the tribunal. The first was the significance of ‘likely’ . Their Lordships held that ‘likely’ meant that important injury was a ‘real possibility’ . [ 15 ] It was non necessary to demo that the injury was likely in the sense of ‘more likely than not’ . [ 16 ] This is a notably slack reading of the threshold standards. They besides held that it must be shown, on the balance of chances, that the threshold was satisfied. They rejected the position that the condemnable load of cogent evidence should be applied. However, instead bewilderingly, Lord Nicholls said that “where there was a more serious allegation, more grounds would be required to set up it on a balance of chance than a instance of a less serious allegation” . [ 17 ]
This pronouncement was reconsidered by the tribunal inRe B[ 18 ] where their Lordships made it clear that Lord Nicholls was non proposing that, in instances of serious maltreatment, the condemnable load of cogent evidence should be used. [ 19 ] The civil balance of cogent evidence should be applied in all instances under the Children Act 1989. Alternatively, what Lord Nicholls implied, was that “some allegations will be inherently improbable and they will necessitate more grounds to set up them than others” . This reading was followed inRe S-B[ 20 ].This facet of the determination inRe BandRe His possibly best viewed as a slack reading, although it is likely non every bit slack as it could hold been. Necessitating a condemnable load of cogent evidence would hold so made it really hard for the local authorization to obtain a attention order. However, Lord Nicholls’ attack to the criterion of cogent evidence, every bit good as its wider deductions for protecting kids at hazard of injury has attracted strong academic unfavorable judgment.
Re Bbesides confirmed another facet of the determination inRe H. Hazard of important injury can merely be established based on ‘primary facts’ which would so hold to be proved on the balance of chances. Mere intuitions are non sufficient. InRe H, a 15 twelvemonth old miss alleged that she had been raped by her stepfather. The local authorization sought a attention order in regard of the girl’s three younger siblings who continued to populate with the adult male. There was a strong intuition that the older miss had been abused and that the younger misss were at hazard of being harmed. However, as it had non been proved on the balance of chances that the miss had been abused, no primary facts had been proved and therefore, no attention order was granted. As Lord Hoffman inRe Bstated, “either a fact happened or it did non and there was nil in between” . If there are no facts to back up a determination of hazard of future injury, the tribunal is powerless to continue. [ 21 ] This is, doubtless, a rigorous reading of the threshold standards. The bulk of their Lordships proverb this issue in footings of parental rights ; parents should non hold their kids removed on the footing of intuitions. However, it is suggested that this is non a safe attack to put on the line taking with kids. [ 22 ] The ground why it is insecure is that it would be really hard for the local authorization to safeguard a child’s right to be protected from maltreatment even when there is a serious hazard of danger.
As this analysis suggests, there are evidentiary jobs and troubles of foretelling the hereafter. The jobs of cogent evidence partially explain the lengthy holds which can happen in kid protection proceedings. [ 23 ] With the debut of the Children and Families Act 2014, there is now a 26-week clip bound for finishing attention proceedings with the possibility of widening the clip bound for up to 8 hebdomads, if this is necessary to decide the proceedings rightly. [ 24 ] However, an of import issue that arises here is whether this is accomplishable in complex instances. ‘Timescales can stop up replacing professional judgment’ . [ 25 ]
‘Harm attributable to the attention given or likely to be given or the child’s being beyond parental control’
Uncertainty about who caused injury to the kid is besides another issue which local governments and tribunals by and large encounter. [ 26 ] The issue of the ‘unknown perpetrator’ was addressed in the instance ofLancashire CCVBacillus[ 27 ].In this instance, it was clear that the kid had suffered injury. However, it was non clear whether it was the parent or the child minder who had caused injury to the kid. Their Lordships held that every bit long as it was clear that the maltreatment was caused by a parent or a child minder, it did non affair which had perpetrated the maltreatment. On the other manus, where it is non clear whether the injury was caused by a parent or person who was non a primary carer of the kid, so no attention order could be made. Although the House of Lords provided a clear counsel on when the threshold standards would be satisfied in the instance of an ‘unknown perpetrator’ , they provided limited counsel on how the tribunal should cover with an unknown culprit when make up one’s minding whether a attention order should be granted. [ 28 ]
Their Lordships returned to that issue inRe O and N[ 29 ],where it was emphasised that “just because the threshold standard was satisfied, it did non automatically intend that a attention order had to be made” . In one of the entreaty instances, it was apparent that the kid was harmed by one of the parents, who had since separated. The kid lived with the female parent. The issue for their Lordships was whether the intuitions that the injury may hold been caused by the female parent should be considered. Their Lordships held that intuitions could be considered at the public assistance phase. Lord Nicholls nevertheless emphasised that societal workers should be careful in such instances to handle the parents as possible culprits, non proven culprits. Therefore, inRe S-B, it was confirmed that if both parents were possible culprits, the tribunal might make up one’s mind to take the kid as they were at hazard of injury. It is hence submitted that inLancashire, the House of Lords took a perceptibly slack reading of the threshold standards as the kids could be removed from their parents even if they did non commit the maltreatment. However, it was likely non every bit slack as it could hold been as it was necessary to demo that a primary carer of the kid was harming the kid.
Even if the facts are known, there is much contention over how much enduring the kid should confront before the local authorization could step in. Harm is really widely defined in s.31 ( 9 ) of the Children Act 1989 as the “ill-treatment or the damage of wellness or development.” ‘Health’ means ‘physical and mental health’ . ‘Development’ includes “physical, rational, emotional or behavioral development” . As a consequence of the Adoption and Children Act 2002, the definition of ‘harm’ besides includes the ‘impairment suffered by hearing or seeing the maltreatment of another’ . The statute law, nevertheless, does non specify the line between ‘harm’ and ‘significant harm’ .
The Court of Appeal inRe C ( A Child )[ 30 ] explained that to be important, the injury had to be “great adequate to warrant the local authorization interfering in the independent life of the family” . The trial will hence be subjective to the peculiar fortunes. This raises many inquiries. If a local authorization finds that a kid is populating in a house where the family’s diet is unhealthy and where the kids spend all their clip in forepart of the telecasting, what should be done? Joanna Nicolas, a kid protection adviser, believes that “obesity should besides be treated as a signifier of maltreatment as any type of under-feeding is, because of the physical impact on the kid, the deductions for their hereafter wellness and the psychological impact.” [ 31 ] However, many would reason that this sort of state of affairs is non sufficiently serious to warrant intercession. This puts societal workers in a hard state of affairs as they do non cognize in which fortunes it will be appropriate for them to step in.
Ward LJ besides stresses the importance of Article 8 of the European Convention on Human Rights when measuring the significance of the injury, foregrounding that Article 8 requires that there must be a ‘”relevant and sufficient” ground for traversing the threshold’ . [ 32 ] Additionally, if the province is to step in in a child’s life, the degree of province intercession must be proportionate to the hazard that the kid is enduring. There is a danger that a kid who is truly enduring will be known to the local authorization, but ne’er, rather, be regarded as enduring sufficiently to warrant intercession. InRe MA[ 33 ] , the local authorization found that a miss, who was non the biological girl of the parents, had been severely treated by them. However, no attention order was granted in regard of the parents’ other kids as their Lordships found that there was no sufficient grounds of a hazard of important injury to their natural kids. The determination in this instance is controversial as the parents demonstrated a capacity for inhuman treatment and therefore gave rise to a existent possibility that they would harm their ain kids.
In make up one’s minding whether the kid is enduring from ‘significant harm’ , the ‘child’s wellness or development must be compared with that which could moderately be expected of a ‘similar child’ . [ 34 ] There are a figure of issues in respects to the ‘similar child’ trial. There is peculiar contention over the extent to which the cultural background of the kid should be taken into history. [ 35 ] It is besides ill-defined to which extent the features or capablenesss of the parents should be considered.
Reforms and recommendations
For the last 40 old ages, several reforms have been intended to better the jurisprudence on ‘child protection’ and compensate for failures in pattern. Many of these reforms responded to the cumulative grounds reviews and high-profile reappraisals into children’s deceases including: the 1974 Maria Colwell enquiry which led to the Area Review Committees, the 1988 Cleveland enquiry which formed the early versions of the statutory counselWorking Together To Safeguard Childrenand the Victoria Climbie Report which contributed to theEvery Child Mattersgreen paper with recommended policies designed to guarantee that it ne’er happened once more. Since the single reforms of the yesteryear have all seemed intelligent and well-designed, it seems perplexing that they have non achieved their intended ends. [ 36 ] It is submitted that there may hold been excessively many unneeded marks. Alternatively of turn toing bing practical jobs, such as hapless system direction and unequal support, the old reforms have focussed excessively much on the procedure of instance direction and increasing ordinance. This may hold impeded the existent issue of child protection. The Munro study has provided some interesting recommendations to better the jurisprudence on kid protection with peculiar focal point on early intercession, the transparence and answerability of the system and the expertness of the societal work profession.
In decision, it is submitted that there is no consistent subject in the attack of their Lordships in respects to the threshold standard. There is nevertheless increasing grounds to propose that the thresholds need to be lower. Witnesss from the tribunals found small or no grounds of inappropriate remotion of kids and many cases where earlier remotion would hold been appropriate. [ 37 ] This is backed by academic research. Professor Ward noted that “there is significant grounds that many kids remain for excessively long with or are returned to opprobrious and inattentive households with deficient support ” . [ 38 ]
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Lancashire CCVBacillus[ 2000 ] 1 FCR 509
Re B ( Children ) ( Care Proceedings: Standard of Proof )[ 2008 ] UKHL 35
Re C ( A Child )[ 1993 ] 1 FLR 257
Re D ( Care: Threshold Criteria )[ 1998 ] Fam Law 656
Re D ( A Child ) ( Care Order: Evidence )[ 2010 ] EWCA Civ 1000
Re H and Others ( bush leagues ) ( sexual maltreatment: criterion of cogent evidence )[ 1996 ] AC 563
Re L ( Children )[ 2006 ] EWCA Civ 1282
Re M ( A Minor ) ( Care Order: Threshold Conditionss )[ 1994 ] 2 FLR 577
Re MA ( Care Threshold )[ 2009 ] EWCA Civ 853
Re O and N ( Children ) ( Non-accidental hurt )[ 2003 ] 1 FCR 673
Re O ( A Minor ) ( Care Order: Education: Procedure )[ 1992 ] 4 All ER 905
Re P ( Care Proceedings )[ 2012 ] EWCA Civ 401
Re S-B ( Children )[ 2009 ] UKSC 17
Re T ( A Child ) ( Care Order )[ 2009 ] 2 FCR 367
Legislative acts and statutory instruments
Adoption and Children Act 2002
Children Act 1989
Children Act 2004
Children and Families Act 2014
Herring J,Family Law( 6Thursdayedition, Pearson Education Ltd, 2013 )
Harris-Short S and Miles J,Family Law: Text, Cases and Materials( 2neodymiumedition, Oxford University Press, 2011 )
Bainham A, ‘Striking the Balance in Child Protection’ [ 2009 ] CLJ 42
Hayes M, ‘Uncertain Evidence and Risk-Taking in Child Protection Cases’ [ 2004 ] CLFQ 63
Keating H, ‘Shifting Standards in the House Of Lords’ [ 1996 ] CFLQ 157
Lowe N and Cobley C, ‘The statutory “threshold” under Section 31 of the Children Act 1989-time to take a stock’ LQR 396
Masson J, ‘Reforming Care Proceedings- Time for a Review’ [ 2007 ] CLFQ 411
Department for Education, ‘Landmark Children and Families Act 2014 additions royal assent’ ( Press release, 13 March 2014 ) & A ; lt ; hypertext transfer protocol: //www.gov.uk/government/news/landmark-children-and-families-act-2014-gains-royal-assent
Eileen Munro, ‘The Munro Review Of Child Protection’ ( 2010 ) & A ; lt ; hypertext transfer protocol: //www.gov.uk/government/uploads/system/uploads/attachment_data/file/175407/TheMunroReview-Part_one.pdf
Grady H, ‘Should Extremely Corpulent Children Be Taken Into Care? ’ ( BBC Radio 4, 16 August 2012 ) & A ; lt ; hypertext transfer protocol: //www.bbc.com/news/health-19267308