By Emily Higlett
Introduction
The Court of Appeal in Re D has overturned final care and placement orders made at an Issues Resolution Hearing (“IRH”), stating that judges must give clear, reasoned findings on the threshold criteria under section 31(2) Children Act 1989 (“CA 1989”), even where proceedings are uncontested or parents are absent.
In delivering the judgment, Cobb LJ, with whom Baker LJ and Miles LJ agreed, criticised the short form reasoning used by the Family Court and stressed the need for transparent judicial decision-making when the State intervenes in family life under Article 8 of the European Convention on Human Rights (“ECHR”).
Facts
D was born in late December 2024 and became the subject of care proceedings shortly after birth. An interim care order was made at an urgent hearing on 24 December 2024.
The local authority alleged that D was at risk of significant harm due to the mother’s mental health difficulties and the father’s drug use and criminal behaviour.
At a case management hearing on 10 January 2025, the parents were directed to respond to the local authority’s threshold statement, which set out the facts said to justify intervention under section 31(2) CA 1989. The order warned that if the parents failed to do so, they would be “taken as not disputing” [12] the local authority’s case. A revised threshold document was filed on 4 February 2025. The father filed a partial response on 25 February 2025, disputing some of the allegations. The mother did not respond.
Further directions were given at a hearing on 13 February 2025, reiterating the consequences of non-compliance and warning that the local authority’s plan might ultimately be adoption. On 2 May 2025, the local authority filed its final threshold document. Neither parent attended the IRH on 2 June 2025, at which HHJ Chaudhuri made final care and placement orders.
HHJ Chaudhuri’s two-and-a-half-page judgment merely stated that he was “satisfied on the balance of probabilities that the threshold is met” [22]. No findings of fact were made, and there was no explanation as to how the evidence satisfied the statutory test.
The Appeal
The parents appealed on two grounds. First, there were insufficient threshold findings, and second, the judgment was inadequately reasoned.
Macur LJ granted permission, noting that the decision appeared to treat the parents’ non-attendance as establishing the threshold “without further analysis” [26], a serious procedural concern in the context of permanent family separation.
The Court of Appeal agreed. It allowed the appeal, discharged the final care and placement orders, substituted an interim care order, and remitted the case for urgent case management.
The Court of Appeal’s Decision
Cobb LJ described the lower court’s approach as giving the appearance of “a quasi-administrative act, in which the judge nods through the local authority’s proposals” [39]. He emphasised that judicial proof of the threshold criteria is non-negotiable. The court itself must be satisfied that the test under section 31(2) CA 1989 is met and cannot rely on default, agreement, or ‘deemed’ acceptance.
The Court of Appeal set out a series of principles to guide future cases. Proper scrutiny must be given to threshold documents, which should clearly link the facts relied upon to the statutory grounds for intervention. Allegations based only on “reports of” concerns or generalised professional opinion are not sufficient. Even in brief judgments, the judge must identify the facts found and explain how those facts satisfy the threshold test. Transparency and fairness require that parties, and, in due course, the child, understand the basis upon which such far-reaching decisions are made. As Cobb LJ notes at [47] “justice must not only be done but be seen to be done.” The parents’ non-attendance at the IRH could not, of itself, justify a finding that the threshold was satisfied.
As HHJ Chaudhuri had not provided reasons demonstrating how the statutory criteria were met, the Court held that the judgment failed to meet the “fundamental jurisdictional requirement” [52] of proof under section 31(2) CA 1989.
Deemed Acceptance of Threshold and Standard Form Orders
The Court of Appeal also addressed the use of ‘deemed acceptance’ provisions in public law proceedings. Concern was expressed about paragraph [148] of the Standard Form Orders (Order 8.0: May 2024), which states that if parents fail to respond to the local authority’s threshold document, they “shall be deemed to accept” the allegations [56].
Cobb LJ warned that this provision risks reversing the burden of proof and turning a judicial exercise into an administrative one. He invited Peel J, as Lead Judge for the Standard Orders Group, to review the wording and consider amendment.
Comment
This decision, read alongside Re H (Final Care Orders at IRH) [2025] EWCA Civ 1342, provides important clarification for family judges on the limits of case management at an IRH. It underscores that the making of final orders cannot become an administrative exercise or based on deemed acceptance, rather than judicial evaluation.
For practitioners, Re D highlights the continuing importance of clear, evidence-based threshold documents and explicit judicial findings.
Emily Higlett is a pupil barrister at 1 Crown Office Row, Brighton.
