About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Friday, 29 November 2013

Re B: Threshold & its Relevance to Welfare Findings

In Re B at paras 186-190 Lady Hale had this to say about threshold and the relevance of the threshold findings to the welfare decision:

186. As to the suggestion made by Ward LJ (at para 54), that article 8 of the European Convention on Human Rights does "inform" the meaning of "significant", I agree that it is only the court's order, and not its finding that the threshold has been crossed, which constitutes an interference with the article 8 right. However, the reason why the threshold is crossed forms part of the court's reasons for making the order, and these must be "relevant and sufficient". It is not sufficient that the child would be better off in another family. That is the reason for the existence of the threshold (which was substituted for the more precise criteria laid down in the Children and Young Persons Act 1969 and the Child Care Act 1980). Furthermore, there is a relationship between this debate and the approach taken to proportionality, discussed in paragraph 197 below, which I believe to be common ground between us. If permanent removal is proportionate if it is the only way of avoiding the identified risk of harm, then it is also important that the threshold of harm is not set at too low a level, for otherwise the reasons for removal will not be sufficient: say, for example, that it is highly likely that a child will turn into an unhealthy couch potato like her parents, and only permanent removal could reliably prevent this, it would nevertheless not be a justifiable interference with family life to permit this.

187. Added to the difficult question of identifying significant harm is the question of identifying the degree of likelihood that such harm will be suffered in the future which is necessary to take the case over the threshold. It was held, albeit strictly obiter, in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 that "likely" does not mean "probable" or "more likely than not". It means, in Lord Nicholls' well-known words, "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (at 585F). That standard has been adopted or approved in numerous later cases, including recently in this court in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9; [2013] 2 WLR 649. It is in this respect, and this respect alone, that Lord Nicholls observed that the threshold is "comparatively low".

188. The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nicholls did not contemplate that a relatively small degree of likelihood would be sufficient in all cases. The corollary of "the more serious the harm, the less likely it has to be" is that "the less serious the harm, the more likely it has to be".

189. Of course, another reason for adopting a test of "real possibility", rather than "more likely than not", is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the child's immediate future.

190. However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The child's resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as to justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the "real possibility" solidify.

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