Re A Compliance in Care Proceedings: What It Means and Why It Matters
Are we Re A compliant?
In my opinion, sometimes…
This is a question we hear in public law proceedings but all too often, it’s forgotten entirely until the final hearing and then panic ensues. So, what is it and how do we deal with it properly?
What is the case of Re A?
Neutral Citation Number: [2015] EWFC 11
Care proceedings that commenced in 2014 and was heard in the Family Division in 2015, before the then President of the Division, Sir James Munby. The case involved Darlington Borough Council’s (local authority) applications for care and placement orders in respect of two children, both of which were dismissed by the court .
The case is relevant in this context in that it provides leading guidance as to threshold as set out in Section 31(2) Children Act 1989.
Sir James Munby, in his judgment, highlighted two fundamental principles relating to threshold that he opines are often overlooked in proceedings, namely;-
It is for the local authority to prove, on the balance of probabilities, the facts on which it seeks to rely and the same must be supported by proper evidence if challenged and;
The facts relied upon must be linked with the local authority’s case on threshold i.e.. how does the fact justify the conclusion that the child has suffered or is at risk of suffering harm.
Sir James Munby continues in his judgment to reference a number of cases which remind us of the need to consider wide variations of parenting capabilities, rather than allowing a linear approach (see the link above).
In considering the facts relied upon in detail in this case, it was found that few of the allegations made within threshold could be substantiated by the local authority nor the link established to significant harm.
The Court of Appeal, in Re J (A Child) [2015] EWCA Civ 222 summarised the judgment of Sir James Munby and endorsed the matters highlighted.
At the outset
Having worked within a local authority, I’m well aware of the difficulties when it comes to drafting a threshold prior to the issuing of proceedings. In many cases, key information and dates are missing or there is a lack of clarity about events. In cases that are urgent, particularly when the social worker’s initial statement is a SWIET rather than a SWET, information can be scant. The point to take away is that threshold at this point, is in draft format only and can be amended at a later date (I’d suggest that this provision is included if you are the author of the threshold document).
The ‘View from the President’s Chambers’ in 2013 stated ‘the threshold statement is to be limited to no more than 2 pages’ and that the local authority must present its case in a succinct, analytical and evidence-based manner. Of course, this is further enforced by the re-launch of the PLO and the need for cases to be dealt with expeditiously and proportionately. The points raised by Sir James Munby remain entirely relevant and my advice is always “less is more”.
If you are representing a parent, ask yourself, is the threshold point already evidenced i.e. by police disclosure or easily evidenced if challenged and does the point link directly to harm? For exmaple, if there is an allegation of ‘mental health issues’, what is the impact to the child? Be mindful of the cases that Sir James Munby references as part of his judgment in Re A when considering whether the threshold is crossed.
Prior to Final Hearing
More frequently, I find that Judges are directing that final thresholds, responses and sometimes, composite final thresholds be filed in advance of a final hearing, with a view to narrowing the issues. I do think that from a client care perspective, dealing with threshold in this manner is in a client’s best interests. It is always difficult to take a client through a threshold which references events prior to proceedings, particularly when they have made changes to address concerns raised by the local authority.
At this point in proceedings, threshold should be absolutely compliant with Re A, entirely substantiated in evidence and each point linked to the harm alleged. If not, it may be something you wish to raise with the Judge…
Written by Emily Henshaw, Consultant Barrister at Unit Chambers.
Law is correct as of 30th May 2025. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.
