Re D (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362

Re D (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362

Background

At the conclusion of an IRH which disposed of public law proceedings a short judgment was delivered by HHJ Chaudhuri granting a care order under section 31 of the Children Act 1989 and a placement order under section 21 of the Adoption and Children Act 2002. Whilst the Local Authority and the Children’s Guardian were present and represented in those proceedings, the parents were not. The parents’ absence was a theme which persisted throughout the case management hearings leading to the IRH.

The Issues

The parents appealed against these orders and permission was granted on two grounds:

1. Insufficiency of threshold findings under section 31 CA 1989
2. Inadequacy of judicial reasons for the order

The Court granted the appeal and discharged the care order and placement order. These were substituted with an interim care order and the applications were remitted for urgent case management.

The Court of Appeal’s Reasoning

1. Ground one: Insufficiency of threshold

The Court made clear that alleged threshold facts provided by local authorities must be subjected to close scrutiny. The following were particular failings in relation to the content of the threshold documents, and in the judge’s approach to the threshold itself:

“Reports of” allegations

• The threshold contained “reports of” alleged facts rather than established facts. It is for local authorities to prove the facts which they seek to rely on. Reports do not suffice.

Linking facts to statutory grounds

• The threshold documents failed to form a link between the facts relied on and the threshold grounds. The threshold should therefore have been rejected on this basis.

Lack of engagement

• The judge at first instance relied on the lack of engagement of the parents to find that the threshold had been made out. Cobb LJ made clear that the danger in doing so is that this constitutes the “appearance of an administrative act”, particularly if “parents have been ‘deemed’ to accept the threshold facts” [50].

1. Ground two: inadequacy of reasons

The judgment of HHJ Chaudhuri was found to not only have deficiencies, but “there [was] almost no reasoning for the making of the final care and placement orders” [53]. This was problematic for the following reasons.

Absence of clear reasoning

• The need for clear reasoning is even stronger when the effect of an order is draconian. In these situations, “the test for severing the relationship between a parent and a child is rightly strict”, therefore “[j]udges need to explain properly why permanent substitute care is required” [55]. Parties must know the basis upon which an order is made. That basis was not clear in the judgment.

Welfare Impact

• The question of threshold is inevitably linked to the court’s determination of the question of welfare. A clear evidential basis for finding that threshold is met is therefore necessary to allow a bespoke welfare analysis to follow. Without this, the court will encounter difficulties in evaluating future risk of harm [28].

Clarification or appeal?

• The Court made clear that where the deficiencies in a judgment are significant, it would not be appropriate for parties to seek clarification rather than appeal. In this case, sufficient reasoning underpinning the decision could not be found even when taking the judgment as a whole. This was not a case in which some gaps needed filling in. Rather, Cobb LJ made clear that “in this case, and on this judgment, I would find myself having “to do the entire puzzle itself”.” [54]

Standard Form Orders

• The Court also addressed what it found to be troubling provisions in a modified version of the Standard Form Orders found at [148] of the ‘Precedent Library of Public Law Case Management Directions and Orders’ in the Standard Form Orders Volume 2 (Order 8.0: May 2024), namely:

“[148] If [name] fails to comply with paragraph [para number of parent’s response direction] of this order they shall be deemed to accept the threshold allegations made by the local authority”

• This creates a risk of (i) reversing the burden of proof so that parents have to show hy threshold was in fact not satisfied; and (ii) then “the determination of threshold becomes more of an administrative than a judicial act” [57].
• Cobb LJ set out that a more appropriate form of words would be:

“If the parents fail to respond [to the schedule of findings in support of the threshold criteria], the court may proceed to consider [at the next hearing / at the IRH / at the final hearing] whether the section 31(2) Children Act 1989 threshold criteria are established by reference to the written evidence filed by the local authority.” [58]

Practical Takeaways

1) Avoid reliance on “reports of allegations”

It is for local authorities to prove the facts that they rely on. Clear evidence is needed to establish the significance attributed to those facts. Mere reports are not clear evidence.

2) Ensure threshold documents contain proven facts linked to statutory criteria

Local authorities must be mindful when drafting threshold documents that such documents must demonstrate how the facts relied on justify the conclusion that the relevant child is suffering, or is likely to suffer, significant harm.

3) Do not assume non-response equals acceptance

Threshold findings need to be made even if a hearing is uncontested. The absence of parties and their resultant ‘deemed’ acceptance is not sufficient for threshold to be met. It is for local authorities to prove their case. Intransigence does not reverse this burden.

4) Judicial duty to give reasons – especially where orders are draconian and parties are absent

It is integral in every case that the parties know the basis of any order which is made. Judges must set out with clarity the reasons underpinning their decisions – “justice must not only be done but seen to be done” [47].

5)  Consider the implications for IRHs being used as final hearings

In light of the guidance provided in Re H (Final Care Orders at IRH) [2025] EWCA Civ 1342, which was recognised by Cobb LJ at [8], consideration should be given as to whether it would be appropriate to conclude proceedings at an IRH or whether case management directions should be given to advance towards a more focused final hearing. This is even more so the case so where an IRH is effectively uncontested.