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Court of Appeal gives guidance on the identification of threshold findings under s31(2) of the Children Act 1989 within care orders.

11 June 2018

In Re S & H-S (Children), [2018] EWCA Civ 1282 (06 June 2018), the Court of Appeal considered whether the threshold under s31(2) of the Children Act 1989 was met at first instance and Lord Justice McFarlane gave some general guidance on the identification of threshold findings within care orders.

Alex Taylor and Giorgia Sessi acted for the Appellant Mother.

Joanne Astbury acted for the Child.

Lord Justice McFarlane and Lord Justice Lindblom
19th April 2018

The full judgment is available at:


The case at first instance was the second set of care proceedings in respect of three children. The first set of proceedings in 2015-2016 had resulted in a supervision order for all three children, which was still in place when the Local Authority applied to the court for the second time. The two eldest were living with their father; L was living with her mother. The matter was returned to court as a result of allegations made by the mother that the two eldest children had been assaulted by their father. They were removed from his care under an ICO and some time later L was also removed from the care of her mother following concerns over her emotional instability.

After a three-week hearing in December 2017, the Judge sanctioned the return of the two eldest children to their Father’s care under a care order and approved the Local Authority’s care plan for L to reside with the paternal grandmother. The Judge found that L was suffering, and was likely to suffer, significant emotional harm in the care of her mother.

The Mother appealed. Permission was granted on paper and the matter was heard by Lord Justice McFarlane and Lord Justice Lindblom on 19th April 2018.

The appeal

The issue central to the Mother’s appeal was whether threshold criteria under Section 31(2) of the Children Act 1989 were satisfied in respect of L. In particular it was argued that the Local Authority’s concerns that justified removal of L from her mother’s care had arisen after the relevant time for determining threshold, when the stress of the proceedings trigged a marked deterioration in the Mother’s wellbeing.

It was also argued on behalf of the Mother that the necessary evaluation process set out in Re B (Care Proceedings: Appeal) [2013] UKSC 33, requiring identification of the precise nature of future significant harm, had not been done.

The Court of Appeal agreed that the judgment lacked focus and clarity in respect of the findings as to threshold relating to L. On behalf of the Local Authority, it was argued that despite this it was still possible to rely on the other information within the judgment to conclude that the mother’s life-long personality traits and presentation were causing were likely to cause significant harm in the future. The same position was argued on behalf of the Children’s Guardian.

Lord Justice McFarlane analysed the judgment made in the first set of proceedings, where extensive focus had been placed on the Mother’s personality and emotional difficulties, outlined in a psychological report. In the 2017 proceedings, the court had the benefit of a new psychological report by Dr Hall. Dr Hall observed that the Mother’s lack of control of her emotional reactions affected all her relationships. She described the children’s attachment to her as “on the boundary of insecure and disorganised” and concluded that returning to their care would be damaging.

Lord Justice McFarlane observed that the material before the court now enabled it to form an overall picture of the Mother’s emotional and psychological vulnerabilities. He observed that the attachment, or lack of, between the Mother and L inevitably related to the period when L was still in her Mother’s care and that “it arose from core intrinsic elements in the mother’s psychological makeup, rather than arising from the recent collapse in the mother’s mental health” (at [47]). Although the judgment lacked precision and clarity, there was sufficient information in it to identify the threshold under s31(2). The appeal was dismissed.


Lord Justice McFarlane, who will take over from Sir James Munby P as the President of the Family Division in July 2018, made some useful concluding remarks headed ‘Lessons for the future’. They can distilled as follows:

1. In complex cases with extensive evidence, threshold findings should be contained into one or two short paragraphs, identifying whether child ‘is suffering’ and/or ‘is likely to suffer’ significant harm, specifying the category of harm and the basic finding(s) as to causation.
2. When making a finding of harm, the judge must identify whether harm suffered is ‘significant harm’ or simply ‘harm’.
3. A finding that a child “has suffered significant harm” is not a relevant finding for s31 which requires a determination as to whether a child “ is suffering” or “is likely to suffer” significant harm at the relevant date.
4. When findings have been made in previous proceedings, a subsequent judgment must make reference to any relevant earlier findings and identify which are relied upon in support of the new threshold finding.
5. After judgment Counsel for the Local Authority and the child are under a duty to ensure, together with the judge, that the threshold findings are sufficiently clear.
6. The court order that records the making of a care order should contain a clear statement of the basis upon which the threshold criteria have been established.

Giorgia Sessi
Pupil Barrister

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