Section 31 of the Children Act 1989 sets out the ‘threshold criteria’ on which a Family Court can make a Care Order to a designated local authority in respect of a child.
In a case I attended recently the father agreed that threshold was met but Counsel disputed the specific wording in the document. It was my first opportunity to appreciate the threshold document and how this could impact on a father’s future. Counsel highlighted the case of Re A (A Child)  EWFC 11. Re A emphasizes the importance of the information that goes into the document. Anything that is stated in threshold must be fact based on evidence. There was a habit that issues expressed in a threshold document were based on suspicion or speculation arising from hearsay.
In this instance the local authority had in threshold document that: “father left children with unsuitable persons and failed to provide a suitable and stable home”. The only evidence that the local authority had was from a witness who said that the father left the child with the “unsuitable person” once – the father disputed this. The witness did not attend court and was not challenged on evidence. Counsel therefore argued that unless it was proved it should not be contained in a document that could affect the father’s future. Counsel told the court that as they had not had an opportunity to cross-examine the witness at this stage they could not agree to this being said.
Similarly in a case where the children were being returned to the parents the local authority had placed in the threshold document, “police deemed him (father) to be intoxicated”. The father disputed that he was drunk. It had not been proved whether he was intoxicated or not, therefore it should not have been in the document.
The test in Re A is very clear. It is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. Not only that, but the local authority needs to establish the link between facts relied upon in a threshold document and the conclusion that the child has suffered, or is at risk of suffering, significant harm.
Without applying this test stringently there is an imminent risk that information relied upon is based on speculation and suspicion. As Counsel in the first case successfully argued to the court, this document will stay with the father if/when he decides to have other children. Although having reasonable suspicion may be a sufficient basis for the authorities to investigate, these suspicions or speculations cannot be put into the threshold document.
The second stage of the test in Re A is just as important. If the local authority could prove a fact (such as the father being drunk) it is for them to then show how this would satisfy the criteria of s31.