Court of appeal rules on thresholds for care and supervision orders

Section 31(2) of the Children Act 1989 specifies the threshold
conditions which have to be satisfied before a care order or
supervision order can be made. To satisfy the court that the
threshold criteria has been crossed a local authority must show
that they were crossed at the time the care proceedings were
commenced. Information acquired after proceedings begin can be
admitted into evidence as can later events but only if they prove
the state of affairs at the time that protective measures were
taken. That was the decision of the Court of Appeal on 22 June in
the case called Re G. They also made it clear that as a matter of
practice, when applying for a care order or a supervision order, a
local authority should prepare a statement of the facts they want
the court to find and how they allege the threshold criteria have
been met.

This case involved two children and the local authority started
care proceedings to obtain orders for the adoption of D, aged four,
and E, nearly one. Their mother had a moderate learning disability
and needed help from the local authority in caring for the
children. The father of D, who later died, had inflicted a
cigarette burn upon him in January 1998. The mother had since
developed a supportive relationship with the father of E.

The guardian in his report suggested adoption was appropriate if
the threshold criteria were met. However, by the end of the
hearing, once the oral evidence had been heard the guardian made no
recommendations as to the orders should the threshold be

The county court judge found that the threshold criteria for
making either a care or supervision order had not been proved for
D. He made a supervision order for E. The local authority appealed,
alleging that D had suffered actual harm by sustaining the
cigarette burn, and that D’s development was significantly impaired
as a result of the shortcomings in the parenting of the mother. The
local authority argued

1 that there was risk of future harm to both children arising
from the mother’s lack of parenting skills, and doubts about the
continuing co-operation of the mother and her partner.

2 that the judge had confused the date upon which the threshold
must have been crossed with the evidence needed to prove that it
was, and also confused later-acquired evidence with later-occurring

The three person court of appeal decided that the threshold was
proved for D and made a supervision order and dismissed the appeal
in respect in E’s case. The other judges supported the judgement of
Lady Justice Hale who said:

(1) The threshold existed to prevent the state interfering in
the upbringing of children simply on the basis that it could do
better than the parents.

(2) Whilst the original court could take into account all the
information available at the date of the hearing, the date at which
the threshold had to be crossed was the date when the local
authority first intervened to protect the child [applying the test
confirmed by the House of Lords in the 1994 case of Re M (A

(3) It should be routine practice to require the local authority
before the final hearing to make a clear statement of the facts
they wished the court to find and the basis on which they alleged
the threshold had been crossed

(4) Later events could not be relied upon unless they were
capable of showing that there was significant harm at the relevant
time, and if so they should be admitted for that purpose. It was a
matter for the judge at the hearing to consider how much weight to
place upon them.

(5) The information as to the mother’s abilities, which came to
light during proceedings, was just as capable of showing what the
risks were for D in 1999 as it was of showing the risks for E in
2000, and there was nothing to suggest a change in the mother’s
abilities. The judge had misdirected himself on the evidence which
he could take into account, and he would have found the threshold
crossed for D as well as E.

(6) If the local authority had wanted to argue that D’s
development since being in care indicated that it was not in his
interests to return to the care his mother, it should have provided
a detailed report at an earlier stage.

(7) Because there was no transcript of the oral evidence, which
clearly had a considerable impact, it was not possible to see
whether the judge’s conclusions could be supported.

(8) How much support E’s father would offer to the mother was a
matter for the judge to decide. He was entitled to reach the
conclusion that the best interests of D and E lay in being reunited
with their mother with the help and support of the local

Bernadette Livesey

Human Rights Solicitor

Walker Morris

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