The President of the Family Division has once again shown his frustration with those involved in public law work. Not for the first time this year the President (endorsed by the Court of Appeal in Re J (A Child)  EWCA Civ 222) has stressed that pleadings need to be drafted properly, threshold matters and a failure to comply is simply unacceptable.
As set out in Re A (A Child)  EWFC11, it is necessary for the Local Authority to link the facts it relies upon with the conclusion that the child has suffered, or is at risk of suffering, significant harm. This might not be obvious, for example in relation to emotional harm. A Local Authority might plead that a parent does not co-operate with professionals but why does this establish significant harm or the risk of significant harm?
The President reminds us that it is for the Local Authority to prove its case on the balance of probabilities. If its case is challenged on a factual point, it must adduce proper evidence. Hearsay evidence, though admissible, may not be sufficient to establish a fact against the firsthand, oral evidence of a parent.
The President makes a point of referring to hearsay evidence in social work chronologies and case recordings. Often through sheer repetition of hearsay evidence, the Local Authority and other professionals working with a family, accept it as fact. As the President stated:
“a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it.”
It will be interesting to see how this develops where Threshold remains an issue at final hearing. It suggests that a significantly greater number of witnesses will need to be called than hitherto.
An all too familiar plank of a Local Authority's case against a parent is their lack of insight or acceptance of a concern. The President makes the perhaps obvious point that if this ‘thing’ or concern is in issue, the Local Authority must both prove the ‘thing’ itself and also show why it has the importance attributed to it by the Local Authority..
The President offers strong guidance on how threshold and proposed findings of fact should be drafted. Findings that someone has “appeared” to do something or that another person have reported something are wrongly formulated.
The President reminds social workers, children's guardians and family judges of the case law which establishes that society must be tolerant of diverse standards of parenting, that the courts are not in the business of social engineering and that we must have a degree of realism about prospective carers.
The President stressed the words of HHJ Jack in North East Lincolnshire Council v G & L  EWCC B77 (Fam)
" The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts."
The Court of Appeal in Re J (A Child)  EWCA Civ 222, considered that the question of whether a young, immature couple was likely to cause significant harm to their baby required a far greater degree of analysis that it had received from the Local Authority or indeed the Judge. It stressed that even where Threshold was met, there needed to be a similarly thorough and clear analysis of the evidence to determine the welfare outcome. One does not simply follow the other.