Beware drafters of threshold documents

Tuesday 18 September 2018

Lessons can be learnt from two recent cases regarding the phrasing of a) threshold documents and b) the court’s findings in relation to threshold.

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R (Children) [2018] EWCA Civ 198

The Court of Appeal confirmed that criminal law concepts have neither relevance nor function within a process of fact-finding in the Family Court especially given the very different functions that the Criminal Court and Family Court perform; the latter considering the future welfare of children rather than guilt or innocence. Lord Justice McFarlane considered it important that the language of any findings are expressed in terms which avoid specific words or phrases which may have a bespoke meaning in the context of the criminal jurisdiction, for example, ‘self-defence’, 'reasonable force’ or ‘the loss of self-control’. He proposed the use of phrases such as ‘inappropriate force’ or ‘proportionate force’, where relevant, so as to avoid any misunderstanding as to a finding based directly on criminal law principles.

Re S & H-S (Children) [2018] EWCA Civ 1282

The Court of Appeal gave helpful guidance on setting out court findings on threshold.  It set out a duty on Counsel for the Local Authority and the child together with the judge to ensure that any findings as to threshold are clear:

a) It is good practice to distil the findings made into one or two short and carefully structured paragraphs identifying whether the finding is that the child ‘is suffering’ and/or ‘is likely to suffer’ significant harm, specifying the category of harm and the basic finding(s) as to causation

b) To identify whether the finding is of ‘significant’ harm’ or simply ‘harm’

c) A finding that the child ‘has suffered significant harm’ is not a relevant finding for s.31, which looks to the ‘relevant date’ and the need to determine whether the child ‘is suffering’ or is likely to suffer’ significant harm

d) Where findings have been made in previous proceedings, a judgment in subsequent proceedings should make reference to any relevant earlier findings and identify which, if any, are specifically relied upon in support of a finding that the threshold criteria are satisfied in the later proceedings as at the ‘relevant date’.

e) The order that records the making of a care order should include within it, or have annexed to it, a clear statement of the basis upon which the s.31 threshold criteria have been established.

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