Interpreting the Threshold Criteria under section 31(2) of the Children Act 1989 – the House of Lords decision in Re B1

Publication Date01 May 2009
Date01 May 2009
AuthorNigel Lowe,Cathy Cobley
Interpreting theThreshold Criteria under section 31(2)
of the Children Act1989 ^ the House of Lords
decision in Re B
Cathy Cobley
and Nigel Lowe
The casenote considers the decision in Re B which con¢rms the threshold criteria i n establishing
the likelihood of future harm under section 31(2) of the Children Act 1989 and clari¢es the civil
standard of proof.
A key issue in child protection is balancing the integrity of the family with the
need to safeguard children. Before the Children Act 1989 there were numerous
routes by which children could be committed into local authority care and, more
signi¢cantly, the criteria fordoing sovaried. At one end of the spectrumvarious
strict statutory grounds (sometimes child-based, sometimes adult based)
had to
be satis¢ed; at the other, under the wardship jurisidiction, a welfare test was
These criteria were scrutinised by the Child Care Review
which con-
cluded that a simple welfare test could not be justi¢ed since it
would permit the state to intervene whenever it could show that the alternative
arrangements proposed would serve the childrens welfare better than those pro-
posed by their parents.But ‘the child is not the child of the state’
and it is important
in a free society to maintain the rich diversity of lifestyles which is secured by per-
mitting families a large measure of autonomy in the way in which they bring up
their children.This is so even, or perhaps particularly, in those families whothrough
force of circumstances are in need of help from social services or other agencies.
Senior Lecturer in Law, Cardi¡ Law School.
Professor of Law, Cardi¡ Law School.
1ReB (Children)(CareProceedings:Standardof Proof)(CAFCASSintervening) [2008] UKHL 35,[2008] 3
2 Provided respectivelyby the Children and YoungPersons Act 1969 and the Child Care Act1980.
3 Although Family Law Reform Act 1969, s 7(2) provided a statutory power to commit wards of
court into care wherethere were‘exceptionalc ircumstancesmaki ng it impracticable or undesirable
for a ward of court to be, or to continue to be under the care of either his parents or of any other
individual’ (there was a similar power inter alia in matrimonial proceedings under the Matrimo-
nial Causes Act 1973, s 43(1)), there was also an inherent power to do so, in which case the sole
criterion was the child’s welfare: see the discussion in N. Lowe and R.White,Wa r d s o f C o u r t (Lo n-
don: Barry Rose,2
ed,1986) 6^9.
5 No doubt this was taken from Justice McReynolds’comment in Pierce vSocietyof Sisters268 US 510
(1925) at 535.‘The child is not the merecreature of the State’.
6 n 4 above, para 2.13.
r2009 The Authors. Journal Compilation r2009 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(3) 463^487

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