What is the threshold in care proceedings?
As one of the leading family law teams in Plymouth, we are often asked about care proceedings, how they work and, in particular, what is the threshold in care proceedings?
The “threshold” refers to the standard of evidence that the local authority must reach in care proceedings to satisfy the court that an order needs to be made in respect of a child. The local authority must prove (on the balance of probabilities) to the court that the case has passed the threshold in care proceedings before it can ask the court to make an order, based on the statutory wording.
The local authority will therefore explain how the threshold in care proceedings has been met in its application for a care order (in form C110A or an attached threshold statement).
This standard is set out in the Children Act 1989, it is a gatekeeping test. If the test is satisfied the court can go on to consider whether it can make a care or supervision order, or no order. The test is set out at section 31(2) of the Children Act 1989:
“(2) A Court may only make a care order or a supervision order if it is satisfied –
- That the child concerned is suffering, or 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 if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
- The child’s being beyond parental control”
When the court considers whether the threshold in care proceedings has been satisfied, it must consider the relevant date. This will be the date of issue of the proceedings, or the date when protective measures were taken. A child may have been moved into foster care or into voluntary accommodation under section 20 of the Children Act 1989. Clearly, in these two situations the child would have been removed from the situation where they are/were suffering significant harm.
The court must also consider the burden of proof, which in care proceedings is on the balance of probabilities. The local authority must link the facts relied on with their case on threshold, demonstrating why the child has suffered, or is at risk of suffering significant harm.
Where matters of threshold in care proceedings are contested, the following principles are relevant:
- The burden of proof lies with the local authority, and the standard is on the balance of probabilities, and findings of fact must be based on evidence.
- The burden of disproving a reasonable explanation put forward by the parents falls on the local authority.
- The inability of a parent or carer to explain an event cannot be relied upon to find an event proved.
To prove a child is suffering significant harm, evidence must be provided as to what was happening at the relevant date. Significant harm is harm which is “considerable, noteworthy or important”. In relation to the likelihood of future harm, the court has to base this likelihood on facts that are established to the balance of probabilities.
The likelihood of significant harm is “A real possibility, a possibility that could not sensibly be ignored, and in regard to the nature and gravity of the feared harm in a particular case”.
The ultimate decision as to whether the threshold in care proceedings were crossed and how is one for the court, even if the parents are willing to make concessions.
If you are in dispute with the local authority regarding the care of a child and need legal advice or support, then contact GA Solicitors in Plymouth today to see how we can help.
GA Solicitors’ family law team is ranked in The Legal 500, Chambers UK and Chambers High Net Worth. Call 01752 203500 or email enquiries@GAsolicitors.com to see how they can help.
If you would like to find out more about Special Guardianship orders then read our article here.
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