L (children), Re

For the threshold in section 31(2) of the Children Act 1989, each limb must be established by proved and challengeable facts existing when proceedings began. A court must not treat a broad body of professional material or an expert’s untested opinion as a substitute for that exercise.

A local authority may rely on grounds different from those which prompted emergency proceedings, provided they existed at the relevant date and the parents receive fair notice and time to respond. Children must not be removed because others could offer more intellectual stimulation. Threshold satisfaction is only the gateway to the separate welfare decision whether a care order is justified.

The parents appealed against HHJ O’Malley’s finding in care proceedings that the section 31(2) threshold under the Children Act 1989 was satisfied. Their children had been removed after an allegation that the father had whipped them with belts. That allegation was rejected as very unlikely.

The local authority then relied on historical domestic violence, parental learning difficulties and asserted emotional harm. The judge accepted the evidence of a psychologist, Mrs Westmacott, and adjourned the application for final determination. The parents challenged the adequacy and fairness of the evidential basis for the threshold finding, and sought either its replacement with a finding that the threshold was not crossed or a fresh hearing.

1. Appeal allowed. The court set aside the finding that the section 31(2) threshold of the Children Act 1989 was satisfied. It remitted the whole care application, including threshold, for a fresh hearing before a High Court judge. The children were to remain in interim care because the lower threshold under section 38(2) was met.

2. The relevant date for the statutory threshold was the date on which proceedings began. The threshold could be established on grounds other than the allegation which caused the authority to intervene, provided those grounds existed at that date and the parents had adequate notice and opportunity to prepare. The court adopted the requirement in Re H [1996] AC 563 that each limb rests on proved relevant facts, rather than on an undifferentiated mass of material.

3. The trial judge had rejected the alleged belting and made only a general finding that the children had suffered some emotional harm through parental rows. His almost exclusive reliance on Mrs Westmacott’s assessment did not establish significant harm or its likelihood. Her opinion was informed by undisclosed school and local-authority material; the testing of the father was open to substantial criticism; and she accepted that further work would have been needed for a threshold assessment. The judge had failed to assess whether the expert’s conclusions had a solid and testable factual foundation, as required by Re S [2005] 2 FLR 658 and the approach in Re CB and JB [1998] 2 FLR 211.

4. Learning difficulties and a comparison with more stimulating foster care could not justify removal. That would be impermissible social engineering. Even if threshold is proved, it only opens the court’s welfare jurisdiction; it does not make a care order or placement outside the family inevitable.

5. The Court of Appeal declined to dismiss the proceedings or direct the children’s immediate return because the authority’s social-work evidence was not before it and the wider pleaded case required proper investigation. Justice required a fresh tribunal with an entirely open mind.

• Court of Appeal (Civil Division): Allowed the parents’ appeal, set aside the threshold determination, and remitted the entire care application for a fresh hearing: [2006] EWCA Civ 1282.
• Taunton County Court: HHJ O’Malley held on 22 June 2006 that the section 31(2) threshold under the Children Act 1989 was met and adjourned the care application for final determination.