Section 31, Children Act 1989 Threshold Criteria

Section 31, peasantren motivate 1989 Threshold CriteriaBefore a tribunal bottom of the inning make a c are effectuate, it moldiness(prenominal) be slaked that the doorway criteria in Section 31 of the nipperren mold 1989 pull in been met.1 The ordering must to a fault promote the welfare of the pincer.2 The main effect of a vexation order is to give riseal responsibility for the kidskin to the topical anesthetic place.3 If a vex order is made, the kid can be take by the local anaesthetic anesthetic anaesthetic pronouncement at any time.4 The threshold criteria, on that pointfore, piddle a portentous role in that they prevent care orders beingness made simply based on what is in the best interests of the youngster.5 However, as this paper volition demonstrate, the threshold for state intervention at sundry(a) stages of the child defense process has been extremely disputed.Section 31 Children stage 1989 Threshold CriteriaOne of the great problems in t he law of child protection is that if the wrong decision is made, great ill-use may result. As Bainham verbalize The law in this area has to strike a careful fit among enabling the protection of children at encounter of constipation, with protecting the rights to compliance for family life for children and their parents6 Not surprisingly, there is substantial case law on the interpretation of s.31 of the Children suffice 1989 and the House of Lords require considered their interpretation in rough(a) important cases which depart be assessed afterwards.7 An analysis would be made astir(predicate) whether the apostrophizes suck in interpreted the threshold criteria in a unmitigated or on the loose(p) way. If interpreted in a strict way, this would imply that it would be more problematic for the local endorsement to satisfy the grounds for a care order.Under the first limb of threshold, the local position must show that the child concerned is low-down, or is belike t o miss, significant suffering when applying for a care order.8 Although quite straightforward, there have been concerns about when the assert state of affairs must be shown to exist.9Is sufferingIn Re M10, the key issue was the meaning of is in the threshold criteria. In this case, the childrens father had murdered their m opposite. Three of the four children were placed with their aunt. The remaining child was placed with foster carers, but later joined her aunt. However, the local authority still wanted a care order just in case it became prerequisite to remove the child from the aunts class. By the time the case came to court, it was hard to say that the child was, at that time, suffering from significant ruin or that she was in all probability to. Their Lordships hence explained that the correct run was whether the child was suffering from significant harm at the time when the local authority first intervened.11 Given that interpretation of the threshold, this was intel ligibly satisfied. That decision is clearly correct, as their Lordships indicated or else it would be ambitious for the local authority to experience a care order in cases where children were put in magnificent care.12 It was a lax interpretation of the threshold criteria as a strict interpretation would have made the law hard to operate.Likely to suffer significant harmThe alternative ground on which the local authority can satisfy the first limb of the threshold criteria under s.31(2)(a) of the Children Act 1989 is the likelihood of succeeding(a) significant harm. One of the major issues that local regimen encounter is that predictions that child demoralise will go through are touchy to make. Removing a child on the ground of speculative harm is contr everywheresial as it is im realistic to k like a shot whether or non the harm would occur.13In Re H14, there were several issues for the court. The first was the meaning of likely. Their Lordships held that likely meant that significant harm was a real chance.15 It was non necessary to show that the harm was probable in the sense of more likely than non.16 This is a nonably lax interpretation of the threshold criteria. They also held that it must be shown, on the commensurateness of probabilities, that the threshold was satisfied. They rejected the shot that the criminal clog of proof should be applied. However, rather confusingly, Lord Nicholls utter that where there was a more serious allegation, more evidence would be required to establish it on a difference of probability than a case of a less serious allegation.17This dicta was reconsidered by the court in Re B18 where their Lordships made it clear that Lord Nicholls was not suggesting that, in cases of serious abuse, the criminal burden of proof should be used.19 The civil balance of proof should be applied in all cases under the Children Act 1989. Instead, what Lord Nicholls implied, was that some allegations will be inherently unlikely and they will require more evidence to establish them than others. This interpretation was followed in Re S-B20. This aspect of the decision in Re B and Re H is perhaps best viewed as a lax interpretation, although it is probably not as lax as it could have been. Requiring a criminal burden of proof would have indeed made it very difficult for the local authority to obtain a care order. However, Lord Nicholls approach to the measuring of proof, as well as its wider implications for protecting children at risk of harm has attracted strong academic criticism.Re B also confirmed other aspect of the decision in Re H. Risk of significant harm can only be established based on direct facts which would then have to be proved on the balance of probabilities. unspotted suspicions are not sufficient. In Re H, a 15 course of study old girlfriend alleged that she had been raped by her stepfather. The local authority sought a care order in respect of the girls three younger siblings who co ntinued to live with the man. There was a strong suspicion that the older girl had been abused and that the younger girls were at risk of being harmed. However, as it had not been proved on the balance of probabilities that the girl had been abused, no primary facts had been proved and thus, no care order was granted. As Lord Hoffman in Re B stated, either a fact happened or it did not and there was nothing in between. If there are no facts to support a finding of risk of future harm, the court is powerless to proceed.21 This is, undoubtedly, a strict interpretation of the threshold criteria. The majority of their Lordships saw this issue in terms of parental rights parents should not have their children removed on the basis of suspicions. However, it is suggested that this is not a skilful approach to risk taking with children.22 The reason why it is unsafe is that it would be very difficult for the local authority to safeguard a childs right to be protected from abuse even when t here is a serious risk of jeopardy.As this analysis suggests, there are evidential problems and difficulties of predicting the future. The problems of proof partly explain the lengthy delays which can occur in child protection minutes.23 With the introduction of the Children and Families Act 2014, there is now a 26-week time limit for completing care proceedings with the possibility of extending the time limit for up to 8 weeks, if this is necessary to resolve the proceedings justly.24 However, an important issue that arises here is whether this is achievable in complex cases. Timescales can end up replacing professional judgment.25Harm credited(predicate) to the care given or likely to be given or the childs being beyond parental control uncertainness about who caused harm to the child is also another issue which local authorities and courts generally encounter.26 The issue of the un cognize culprit was addressed in the case of Lancashire CC v B27. In this case, it was clear th at the child had suffered harm. However, it was not clear whether it was the parent or the child minder who had caused harm to the child. Their Lordships held that as big as it was clear that the abuse was caused by a parent or a child minder, it did not matter which had perpetrated the abuse. On the other hand, where it is not clear whether the harm was caused by a parent or someone who was not a primary carer of the child, then no care order could be made. Although the House of Lords provided a clear guidance on when the threshold criteria would be satisfied in the case of an unknown culprit, they provided limited guidance on how the court should deal with an unknown perpetrator when deciding whether a care order should be granted.28Their Lordships returned to that issue in Re O and N29, where it was emphasised that just because the threshold criteria was satisfied, it did not mechanically mean that a care order had to be made. In one of the appeal cases, it was evident that the child was harmed by one of the parents, who had since separated. The child lived with the mother. The issue for their Lordships was whether the suspicions that the harm may have been caused by the mother should be considered. Their Lordships held that suspicions could be considered at the welfare stage. Lord Nicholls however emphasised that affable workers should be careful in such cases to treat the parents as strength perpetrators, not proved perpetrators. Therefore, in Re S-B, it was confirmed that if both parents were possible perpetrators, the court might decide to remove the child as they were at risk of harm. It is therefore submitted that in Lancashire, the House of Lords took a noticeably lax interpretation of the threshold criteria as the children could be removed from their parents even if they did not perpetrate the abuse. However, it was probably not as lax as it could have been as it was necessary to show that a primary carer of the child was harming the child. epoc h-making harmEven if the facts are known, there is often controversy over how much suffering the child should face before the local authority could intervene. Harm is very widely defined in s.31(9) of the Children Act 1989 as the ill-treatment or the impairment of health or development. Health operator physical and mental health. Development includes physical, intellectual, emotional or behavioral development. As a result of the Adoption and Children Act 2002, the definition of harm also includes the impairment suffered by hearing or perceive the ill-treatment of another. The legislation, however, does not define the line between harm and significant harm.The Court of Appeal in Re C (A Child)30 explained that to be significant, the harm had to be great enough to relieve the local authority interfering in the autonomous life of the family. The test will therefore be subjective to the fussy dowry. This raises many questions. If a local authority finds that a child is living in a house where the familys diet is unhealthy and where the children spend all their time in front of the television, what should be done? Joanna Nicolas, a child protection consultant, believes that corpulency should also be treated as a form of abuse as any type of under-feeding is, because of the physical impact on the child, the implications for their future health and the psychological impact.31 However, many would argue that this kind of situation is not sufficiently serious to justify intervention. This puts social workers in a difficult situation as they do not know in which circumstances it will be appropriate for them to intervene.Ward LJ also stresses the importance of member 8 of the European Convention on Human Rights when assessing the significance of the harm, set off that Article 8 requires that there must be a germane(predicate) and sufficient reason for crossing the threshold.32 Additionally, if the state is to intervene in a childs life, the level of state inter vention must be proportionate to the risk that the child is suffering. There is a danger that a child who is genuinely suffering will be known to the local authority, but never, quite, be regarded as suffering sufficiently to justify intervention. In Re MA33, the local authority constitute that a girl, who was not the biological daughter of the parents, had been badly treated by them. However, no care order was granted in respect of the parents other children as their Lordships found that there was no sufficient evidence of a risk of significant harm to their natural children. The decision in this case is controversial as the parents demonstrated a capacity for cruelty and thus gave rise to a real possibility that they would harm their own children.In deciding whether the child is suffering from significant harm, the childs health or development must be compared with that which could reasonably be expected of a similar child.34 There are a number of issues in regards to the similar child test. There is particular controversy over the period to which the cultural background of the child should be taken into account.35 It is also unreadable to which extent the characteristics or capabilities of the parents should be considered.Reforms and recommendationsFor the last 40 years, several reforms have been intended to improve the law on child protection and mend for failures in practice. Many of these reforms responded to the cumulative evidence inspections and high-profile reviews into childrens deaths including the 1974 Maria Colwell interrogatory which led to the Area Review Committees, the 1988 Cleveland inquiry which formed the early versions of the statutory guidance Working Together To Safeguard Children and the Victoria Climbi Report which contributed to the all Child Matters green paper with recommended policies designed to ensure that it never happened again. Since the individualist reforms of the past have all seemed intelligent and well-designed, it seems puzzling that they have not achieved their intended goals.36 It is submitted that there may have been too many needless targets. Instead of addressing existing practical problems, such as poor ashes management and inadequate funding, the previous reforms have focussed too much on the process of case management and increase regulation. This may have impeded the real issue of child protection. The Munro report has provided some interesting recommendations to improve the law on child protection with particular focus on early intervention, the transparency and accountability of the system and the expertness of the social work profession.In conclusion, it is submitted that there is no consistent division in the approach of their Lordships in regards to the threshold criteria. There is however increasing evidence to suggest that the thresholds need to be lower. Witnesses from the courts found little or no evidence of inappropriate removal of children and many instances where ea rlier removal would have been appropriate.37 This is backed by academic research. Professor Ward far-famed that there is substantial evidence that many children remain for too long with or are returned to abusive and neglectful families with insufficient support.38Word conceive 2500BibliographyPrimary SourcesCasesLancashire CC v B 2000 1 FCR 509Re B (Children) (Care Proceedings Standard of Proof) 2008 UKHL 35Re C (A Child) 1993 1 FLR 257Re D (Care Threshold Criteria) 1998 Fam Law 656Re D (A Child) (Care vagabond Evidence) 2010 EWCA Civ constant of gravitationRe H and Others (minors) (sexual abuse standard of proof) 1996 AC 563Re L (Children) 2006 EWCA Civ 1282Re M (A Minor) (Care Order Threshold Conditions) 1994 2 FLR 577Re MA (Care Threshold) 2009 EWCA Civ 853Re O and N (Children) (Non-accidental injury) 2003 1 FCR 673Re O (A Minor) (Care Order fostering Procedure) 1992 4 All ER 905Re P (Care Proceedings) 2012 EWCA Civ 401Re S-B (Children) 2009 UKSC 17Re T (A Child) (Care Orde r) 2009 2 FCR 367Statutes and statutory instrumentsAdoption and Children Act 2002Children Act 1989Children Act 2004Children and Families Act 2014Secondary SourcesBooksHerring J, Family Law (6th edition, Pearson Education Ltd, 2013)Harris-Short S and Miles J, Family Law Text, Cases and Materials (2nd edition, Oxford University Press, 2011)Journal articlesBainham A, Striking the Balance in Child Protection 2009 CLJ 42Hayes M, Uncertain Evidence and Risk-Taking in Child Protection Cases 2004 CLFQ 63Keating H, Shifting Standards in the House Of Lords 1996 CFLQ 157Lowe N and Cobley C, The statutory threshold under Section 31 of the Children Act 1989-time to take a stock LQR 396Masson J, Reforming Care Proceedings- Time for a Review 2007 CLFQ 411WebsitesDepartment for Education, basin Children and Families Act 2014 gains royal assent (Press release, 13 March 2014)