Re D (Threshold Findings and Final Orders at IRH): No “Deemed Proof” of Threshold — Court of Appeal mandates express s.31(2) findings and adequate reasons; Standard Form Orders para 148 to be reviewed

Re D (Threshold Findings and Final Orders at IRH): No “Deemed Proof” of Threshold — Court of Appeal mandates express s.31(2) findings and adequate reasons; Standard Form Orders para 148 to be reviewed

Introduction

In D, Re (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362, the Court of Appeal (Cobb LJ; Miles LJ; Baker LJ concurring) re‑states and sharpens core principles under section 31(2) of the Children Act 1989 (the threshold criteria) when final public law orders are made at an Issues Resolution Hearing (IRH). The judgment addresses three intertwined questions:

  • the non‑delegable obligation on the judge, even at an IRH used as a final hearing, to satisfy themselves on the evidence that the statutory threshold is met;
  • the impermissibility of treating “deemed” acceptance of a local authority’s threshold schedule as if it were proof of the facts;
  • the need for reasoned findings and adequate judicial reasons, especially where care and placement orders are contemplated.

The case also scrutinises the widely used Standard Form Orders, in particular paragraph 148 (Order 8.0, May 2024), which provides that if a parent does not file a response to threshold, they are “deemed to accept” the threshold allegations. The Court signals that this wording is unsound in principle, risks reversing the burden of proof, and invites the Standard Orders Group (Peel J) to amend it. The appeal succeeds on two grounds: (i) insufficiency of threshold findings; and (ii) inadequacy of judicial reasons. The care and placement orders are set aside and an interim care order is substituted.

Key holding (new and clarified principles)

  • Threshold under s.31(2) CA 1989 can never be established by default, deemed acceptance, or mere agreement; the court must make express findings on the evidence and say why it is satisfied (non‑negotiable).
  • Parents’ non‑attendance and non‑engagement cannot, without more, establish the threshold; absence is not proof.
  • Short judgments at IRH may be appropriate, but they must still identify the facts found, link those facts to the statutory threshold, acknowledge the burden and standard of proof, and give sufficient reasons for final orders.
  • Threshold schedules must plead facts (not reports or impressions) and must explain why the pleaded facts cross the statutory threshold (i.e., show actual or likely significant harm attributable to parental care or “beyond parental control”).
  • Standard Form Orders para 148 (deemed acceptance of threshold) is problematic and should be revised; a safer formulation is that the court may proceed to consider threshold on the written evidence if no response is filed.

Summary of the Judgment

D was born in December 2024. Public law proceedings were issued immediately; interim care orders were made at birth based on an “Initial Threshold” citing the mother’s mental health and engagement, and later allegations concerning the father’s criminality and drug use. Case management orders required the parents to file responses to threshold; those orders stated that if they failed to do so, they would be “deemed” not to dispute threshold. The father filed a partial response to an intermediate threshold document. A final four‑paragraph threshold schedule was later filed by the local authority, but contained “reports of” facts (e.g., that police “reported” a smell of cannabis) and did not clearly link pleaded facts to the statutory test.

At the IRH on 2 June 2025—listed and used as a final hearing—the parents did not attend (having notified their principled non‑attendance), and the judge gave a short, 19‑paragraph ex tempore judgment. He dismissed the father’s strike‑out and recusal applications, and then, under threshold, stated that the father had disputed threshold, the mother had not responded, he had considered the “threshold document”, the parents had totally failed to engage, and he was satisfied on the balance of probabilities that the threshold was “met out”. He then made final care and placement orders.

On appeal, Macur LJ had granted permission limited to two grounds: insufficiency of threshold findings and inadequacy of reasons. The Court of Appeal allows the appeal. It holds that the judge failed to identify the facts found or the evidential basis, appeared to rely improperly on non‑engagement, and treated “deemed acceptance” as if it were proof. The threshold schedule was defective. The reasoning for the final orders was inadequate. The court sets aside the care and placement orders, substitutes an interim care order, and remits the case for urgent case management. It also invites a review of Standard Form Orders para 148.

Analysis

Precedents cited and their influence

  • Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35; [2009] AC 11
    Confirms the civil standard (balance of probabilities) for fact‑finding and the centrality of judicial evaluation of whether allegations are proved. It underpins the judgment’s insistence that threshold must be proved by evidence and findings, not inferred from absence or “deemed” positions.
  • Re B (A Child) [2013] UKSC 33; and Re B-S (Children) [2013] EWCA Civ 1146
    The “nothing else will do” proportionality test for adoption/placement orders and the need for rigorous, evidence‑based justification and proper reasons. These cases ground the Court’s conclusion that the judge’s sparse reasoning was inadequate for such draconian orders.
  • Re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9; [2013] 1 AC 680
    Emphasises the need for a “clearly established objective basis” before the state interferes with family life. The Court relies on this to stress that threshold is an objective judicial safeguard that cannot be bypassed by default or consent.
  • In re O (Minors) (Care: Preliminary Hearing) [2003] UKHL 18; [2004] 1 AC 523
    Describes threshold as the “bulwark” against unjustified intervention. This frames the appellate insistence on judicial scrutiny and explicit threshold findings.
  • Re A (Application for Care Orders: Local Authority Failings) [2015] EWFC 11 (Munby P)
    Warns against pleading “reports” or professional opinions as threshold facts and emphasises logical linkage between pleaded facts and statutory grounds. The Court applies this to criticise the local authority’s final threshold schedule here.
  • Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407; [2022] 4 WLR 42 (McFarlane P)
    Stresses that clear threshold findings are essential to a future‑risk welfare analysis; without them, the court cannot conduct a focussed, bespoke evaluation. This directly supports the appellate finding of inadequacy.
  • Re S (A Child: Adequacy of Reasons) [2019] EWCA Civ 1845 and Re O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149
    Address when deficiencies may be cured by clarification and when they cannot. Here, the omissions were so extensive that clarification was unsuitable; appeal was appropriate.
  • Flannery v Halifax Estate Agents [2000] 1 WLR 377
    Reasons concentrate the judicial mind and increase the reliability of the outcome; losing parties must know why they lost. The judgment borrows these fairness principles to censure the paucity of reasons.
  • Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10; [2009] 1 FLR 1145 (Wall LJ)
    A judge need not slavishly adopt the LA’s schedule and may reach different findings; but they must still identify their own findings based on evidence. Relevant to the criticism that the judge appeared to “nod through” the LA’s case.
  • Re T & Others (Children: Adequacy of Reasons) [2023] EWCA Civ 757; [2024] 1 FLR 303 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605
    On adequacy of reasons and the post‑judgment clarification route. Applied to explain why, on these facts, clarification would not cure the defects.

Legal reasoning

  1. Threshold is a judicial, not administrative, gateway.
    Section 31(2) CA 1989 says the court “only” makes a Part IV order if “it is satisfied” the child is suffering or likely to suffer significant harm attributable to parental care (or beyond parental control). That duty cannot be discharged by agreement, non‑opposition, or default. Judicial satisfaction requires findings of fact, drawn from evidence, and reasons. The court must identify:
    • what facts are proved on the balance of probabilities;
    • how those facts demonstrate actual or likely “significant harm”;
    • the causal attribution to parental care (or lack of parental control).
  2. Non‑attendance/non‑engagement is not proof of threshold.
    Although relevant to case management and, at welfare stage, to the feasibility of rehabilitation, parental absence cannot by itself establish threshold. The judgment criticises the trial judge’s reliance on “total lack of engagement” within the threshold analysis as a material error.
  3. Defective threshold pleading must be rejected or corrected.
    The LA’s final schedule relied on “reports” (e.g., police “reported” a smell of cannabis) and did not link facts to the statutory test. Following Re A, the court reiterates that threshold must plead facts, not second‑hand reports or opinions, and must show why those facts cross the statutory threshold. Judges should not adopt defective schedules; they must scrutinise and, if necessary, reject or reformulate them.
  4. Standard Form Orders para 148 is unsafe in its current form.
    Wording that a parent who does not file a response is “deemed to accept” threshold allegations invites conflation between procedural default and substantive proof, risks a quasi‑default judgment (cf. CPR Part 12), and may appear to reverse the burden of proof. The Court proposes alternative wording: if no response is filed, the court “may proceed to consider” whether threshold is established by the LA’s written evidence. The lead judge (Peel J) is invited to review para 148.
  5. Reasons matter—especially for draconian orders.
    Care and placement orders require rigorous, transparent, proportionate justification (Re B; Re B‑S). The judge’s reasons here were too skeletal: they did not identify what facts were found, how those facts satisfied threshold, or why “nothing else will do”.
  6. IRH can be used as a final hearing—but not at the expense of due process.
    The Public Law Outline anticipates final disposal at IRH where appropriate. However, even on submissions and in the parents’ absence, the judge must articulate the essential findings and reasoning. It is not necessary to “find a mass of specific facts” (as the President has noted), but some facts must be found and explained, and the threshold schedule should be appended to the order.

Impact and significance

This judgment has immediate operational consequences:

  • For judges: When making final orders at an IRH, record concise threshold findings, the burden/standard of proof, and your reasons. Do not rely on “deemed” acceptance; scrutinise the threshold schedule; attach it to the order. Non‑attendance is not evidence of harm.
  • For local authorities: Redraft threshold schedules to remove “reports” and ensure each pleaded fact is linked to statutory threshold limbs (harm + attribution). Provide a short logic chain from fact to risk/actual significant harm. Avoid confusing engagement failures (a welfare point) with threshold proof.
  • For guardians and advocates: Assist the court with a short, structured threshold roadmap, identifying the facts that cross threshold and why. If a judgment omits essential findings or reasons, invite the judge respectfully to supply them there and then.
  • For the Standard Orders Group: Expect review and amendment of para 148. The Court’s suggested wording should replace “deemed acceptance”.
  • For appellate risk management: Final orders made at IRH without explicit threshold findings and adequate reasons are now at heightened risk of being set aside as a “tottering edifice built on inadequate foundations” (Re A).
  • For children’s rights and transparency: The judgment foregrounds that children may later read the decision severing family ties. Judgments must therefore explain, in terms comprehensible to a future adult reader, what was found and why.

Complex concepts simplified

  • Threshold criteria (s.31(2) CA 1989): The legal gateway for state intervention. The court can only make a care or supervision order if satisfied that the child “is suffering” or “is likely to suffer” significant harm and that this harm is attributable to the care being given (or likely to be given) not being what it would be reasonable to expect a parent to give (or the child being beyond parental control).
  • Balance of probabilities: The civil standard of proof—more likely than not. The local authority bears this burden for threshold facts.
  • Issues Resolution Hearing (IRH): A hearing within the Public Law Outline designed to narrow issues and, where possible, resolve the case. It may serve as a final hearing if appropriate safeguards are observed.
  • Placement order (s.21 Adoption and Children Act 2002): Authorises a local authority to place a child for adoption. It is a “draconian” order, justified only where “nothing else will do”.
  • “Deemed acceptance” vs. proof: A party’s failure to respond to a threshold schedule may allow the court to proceed on written evidence, but it is never proof. The court must still find facts and state reasons.
  • Adequacy of reasons: A judgment must explain what was decided and why, so parties (and later, the child) can understand the basis of the decision and an appellate court can review it.

Practical guidance distilled from the judgment

For judges concluding cases at an IRH

  • State the standard and burden of proof and that the LA bears it for threshold.
  • Identify, even briefly, the core facts found and how they satisfy s.31(2) (harm + attribution).
  • Avoid treating absence/non‑engagement as proof; explain its relevance, if any, at the welfare stage only.
  • Give concise reasons for the final welfare decision, addressing proportionality and “nothing else will do” where a placement order is made.
  • Append the threshold schedule to the order and, where necessary, refine it to reflect the court’s findings.

For local authorities drafting threshold

  • Plead facts, not “reports” or professional impressions. Avoid “the police reported that X”. Say what happened, when, and by whom.
  • Link each fact to the statutory elements: explain why it shows actual/likely “significant” harm and how that harm is attributable to parental care.
  • Separate threshold facts from welfare conclusions. Do not rely on engagement failings as threshold unless they are tied to a concrete risk or actual harm.

For practitioners when parents do not attend

  • Assist the court by identifying the key documents that prove threshold and the findings invited.
  • If the judge does not set out threshold findings or adequate reasons, seek clarification at the time; but if omissions are wholesale, an appeal may be the only remedy (Re O (Judgment: Adequacy of Reasons)).

Relationship to recent appellate guidance

The Court directs practitioners to Re H (Final Care orders at IRH) [2025] EWCA Civ 1342 for complementary guidance on using IRHs effectively and giving judgments at the end of an IRH. Re D builds on Re H by addressing the particular pitfalls of “deemed acceptance” practices and by reinforcing that minimalistic IRH judgments must still record essential threshold findings and reasons.

Outcome in Re D

  • Appeal allowed on both grounds: insufficient threshold findings and inadequate reasons.
  • Care order and placement order set aside; interim care order substituted.
  • Case remitted to the Family Court at Peterborough for urgent case management.
  • Invitation issued to the Standard Orders Group (Peel J) to review para 148 of the Standard Form Orders.

Conclusion

Re D reaffirms the constitutional role of the threshold criteria as the safeguard against unjustified state interference in family life. It makes plain that:

  • Threshold cannot be proved by default, “deemed acceptance”, or silence; the court must make express findings based on evidence and explain why the threshold is crossed.
  • Short judgments at an IRH are permissible, but not skeletal: they must identify the factual basis, the legal test, and the reasons, especially for care and placement orders.
  • Practices that risk converting threshold into an administrative rubber‑stamp—such as “deemed acceptance” formulations—are inimical to s.31(2). The Standard Form Orders require amendment.

The judgment’s significance is practical and immediate. It will reshape case management orders, sharpen the drafting of threshold schedules, and reinforce judicial discipline at IRHs used as final hearings. Most importantly, it anchors the decision‑making process in transparent findings and reasons, ensuring that justice is both done and seen to be done—for the parties now, and for the child who may one day read the judgment that changed the course of her life.

Citations referenced in the judgment

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Civil Division)

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