B-T (A Child: Threshold Conditions)

The threshold under the Children Act 1989, section 31(2), is a single assessment. It requires actual or likely harm, significant harm, and care falling below what it is reasonable to expect from a parent.

Proved facts that individually fall short may cumulatively satisfy the threshold, although unproved allegations cannot be aggregated. The court must assess risk at the relevant date and apply its own judgment to accepted evidence. Expert evidence is unnecessary on matters within a specialist court’s competence.

Section 40 remains available after dismissal of care proceedings even where threshold has not been established. Its exercise depends on welfare and proportionality, not solely on the prospects of appeal.

The local authority appealed against the dismissal of care proceedings concerning a newborn child. The Family Court at Medway found that the father had handled the child by rotating him at home and flipping him in the air in hospital, and that the child had unexplained facial bruising. It nevertheless concluded that the threshold under section 31 of the Children Act 1989 was not met.

The judge also refused a holding interim care order under section 40, permission to appeal and a stay. The local authority appealed on the threshold findings and the approach to section 40. The central issues were whether the findings, considered together and at the relevant date, established likely significant harm, and whether section 40 could protect the child pending appeal.

1. Disposition. The appeal was allowed. Lord Justice Peter Jackson set aside the threshold determination and substituted a finding that the threshold under section 31(2) of the Children Act 1989 was satisfied. The interim care order was restored and the matter was remitted to the Family Court for a welfare decision and urgent case management.
2. Threshold assessment. The threshold has three elements: actual or likely harm, significant harm, and harm attributable to care falling below what it would be reasonable to expect. There is one threshold, even though allegations are separated for forensic purposes. The court must assess all established facts together. Minor facts may cumulatively establish likely future harm, while unproved allegations cannot be aggregated. This approach was applied consistently with Re H and R (Minors) (Child Sexual Abuse: Standard of Proof) [1996] AC 563.
3. Application. The accepted findings that the father had rotated the child at home, despite a warning, and had later flipped him three times in hospital created a real possibility of serious future injury. The hospital incident alone crossed the threshold. The unexplained facial bruising reinforced that conclusion. The assessment had to be made at the relevant date, and later adjustments in the father’s views did not answer that question. The judge also erred by analysing the evidence through unnecessary expert discussion rather than applying the court’s own assessment to the accepted evidence.
4. Split hearings and domestic abuse. A local authority should normally present at the fact-finding and threshold stage the relevant family-history allegations bearing on harm or likely harm. It should not ordinarily enlarge its harm case at the welfare stage with matters that should previously have been litigated, subject to welfare and fairness. Allegations of domestic abuse must be taken seriously.
5. Section 40. Section 40 may be used after dismissal of a care application even where the threshold has not been found satisfied. Article 8 does not prevent a short protective order. The court must consider the child’s welfare, the rights of the parents and child, the circumstances and findings, and the parties’ appeal rights. A prominent consideration is whether abrupt termination of the existing order may cause undesirable welfare consequences. The judge wrongly linked section 40 to whether her decision might be wrong or permission to appeal should be granted. Had the correct test been applied, a short section 40 order or stay was likely.

• Court of Appeal (Civil Division) — [2020] EWCA Civ 697: appeal allowed; the threshold determination was set aside and substituted, the interim care order was restored, and the matter was remitted for a welfare decision.
• Family Court at Medway — Deputy High Court Judge Clare Ambrose dismissed the care proceedings after finding that the threshold under section 31 of the Children Act 1989 was not met. The judge refused a section 40 order, permission to appeal and a stay.