“Beyond the Threshold Schedule” – The Court of Appeal’s Refined Guidance on Judicial Reason-Giving and Perpetrator Findings in Care Proceedings

1. Introduction

The Court of Appeal decision in K & G (Care Proceedings: Fact-Finding) ([2025] EWCA Civ 910) addresses a deceptively simple yet pervasive problem in public children law: How far is a fact-finding judge required to track, point-by-point, the schedule of findings sought by the Local Authority, and what level of detail must appear in the judge’s reasons where the alleged perpetrator of inflicted injuries cannot be identified?

At first instance Recorder Hennessy concluded that: (i) baby G’s cheek and shoulder injuries were human bite marks; (ii) either parent could have inflicted them but neither could be identified on a balance of probabilities; (iii) an ear injury remained “unexplained”; and (iv) she would not make separate “failure to protect” findings. All parties – including the children’s guardian and the parents themselves – appealed, seeking a rehearing. The Court of Appeal (Baker, Stuart-Smith and Singh LJJ) refused. In doing so, it sharpened existing principles on:

• Judicial freedom to deviate from the Local Authority’s threshold schedule;
• The sufficiency of ex tempore reasoning;
• When (and why) appellate intervention is unwarranted even where all parties support it;
• Holistic evaluation of multiple injuries and the limits of “pool of perpetrators” analysis.

2. Summary of the Judgment

1. Appeal Dismissed: The recorder’s findings were upheld in full; a rehearing was refused.
2. No Error in Rejecting Linear Schedule: A trial judge need not “slavishly” march through the threshold document. So long as the parties have had a fair hearing and the judgment explains the core reasoning, structure is a matter of forensic choice.
3. Perpetrator Findings: On the totality of the evidence (medical, opportunity, credibility), it was open—indeed correct—for the recorder to place both parents in the pool of possible perpetrators and to stop short of definitive identification.
4. Ear Injury Reasoning Adequate: The recorder’s brief analysis did not amount to an error; appellate courts must resist demanding encyclopaedic judgments.
5. Failure-to-Protect Allegations: Added only after evidence closed; given the ambiguous parental evidence, the recorder’s decision to refrain from making these findings was permissible and proportionate.
6. Appellate Restraint Re-emphasised: Citing Fage and Volpi, Baker LJ reiterated that factual evaluations – including decisions not to reach certain findings – are rarely vulnerable on appeal.

3. Analysis

3.1 Precedents Cited and Their Influence

• Re B (Children: Uncertain Perpetrators) [2019] – Set out the modern approach to “pool of perpetrators” cases: ensure fairness to those in the pool while recognising the evidential lacunae that sometimes prevent pinpointing culpability.
• Re A (Pool of Perpetrators) [2022] – Re-affirmed that “inability to choose” is not a judicial failure but an honest recognition of evidential limits.
• Re G & B (Fact-Finding Hearing) [2009] – Wall LJ’s reminder that judges are not bound to the Local Authority’s schedule if new issues surface; emphasised procedural fairness instead.
• Re EY (Fact-Finding Hearing) [2023] – Baker LJ’s own earlier guidance: findings beyond the schedule must remain within the “known parameters” of the case.
• Re W [2016] & Re L (Fact-finding: Fairness) [2022] – Clarified “known parameters” doctrine and limits on judicial departure without warning.
• Fage UK Ltd v Chobani [2014] – Lewison LJ’s dictum on what constitutes adequate judicial reasoning.
• Volpi v Volpi [2022] – Appellate caution: failure to mention evidence ≠ overlooking it.
• Re T [2004] – Importance of viewing evidence holistically.
• Re YM (Clarification of Reasons) [2024] – Process for seeking clarification rather than appealing.

Collectively, these cases form the scaffold on which Baker LJ built the present decision. K & G synthesises them, confirming that the schedule is a tool, not a straitjacket, and that appellate courts should be slow to disturb fact-finding latitude.

3.2 Court’s Legal Reasoning

The Court noted that even had minor analytical gaps existed, they did not undermine the essential findings that:

• G suffered significant inflicted injuries;
• At least one parent is likely responsible;
• The children therefore crossed the statutory threshold in section 31(2) Children Act 1989.

3.3 Likely Impact of the Judgment

K & G is unlikely to revolutionise public law children practice, yet it tidies important procedural corners.

1. Structure v. Substance: Practitioners will temper expectations that a judge must tick through every paragraph of a schedule. Skeleton arguments should now stress why a particular finding is “material”, not simply that it appears in a schedule.
2. Ex Tempore Judgments Endorsed: Busy Family Court judges frequently deliver oral judgments. The Court of Appeal’s affirmation that concision does not equate to inadequacy is valuable.
3. Appeals where All Parties Agree: Even unanimous party support does not guarantee success. Appellate courts remain guardians of proportionality and finality.
4. Risk Assessment Pathway: The decision encourages frontline courts to commission sophisticated risk assessments (e.g., “Resolutions” model) despite limited factual findings.
5. Ear Injuries & Multiple Harms: The ruling suggests that a judge may lawfully label an injury “unexplained” without derailing an overall analysis, so long as inflicted harm sufficient for the threshold is established elsewhere.

4. Complex Concepts Simplified

• Threshold Criteria (s.31 Children Act 1989): The legal hurdle the Local Authority must clear before a court can make a care or supervision order. It requires proof that the child has suffered or is likely to suffer “significant harm” attributable to parental care.
• Pool of Perpetrators: Where evidence shows someone (within a defined group) caused an injury, but the court cannot decide who on the balance of probabilities. Every member of that group is placed in the “pool”, which affects future risk assessments.
• Ex Tempore Judgment: A judgment delivered orally immediately or shortly after the hearing, as opposed to a reserved written judgment.
• Schedule/Threshold Document: A list of alleged facts (injuries, failings) the Local Authority relies upon to meet the threshold. It organises the trial but does not bind the judge’s structure.
• Failure to Protect: An allegation that a parent, despite not inflicting the injury, knew or ought to have known of the risk and did not act to prevent it.
• “Resolutions” Model: A risk-assessment framework designed to work with families where abuse findings are equivocal or denied, focusing on safety planning and protective structures.

5. Conclusion

K & G fortifies the message that appellate courts must respect frontline judges’ evaluative discretion, particularly in the delicate terrain of child protection. It clarifies that:

• The form of a judgment – even if brief, non-linear and ex tempore – is less important than its capacity to expose the path of reasoning;
• Judges are free to diverge from the Local Authority’s schedule provided parties have had fair notice and opportunity to contest relevant issues;
• Determining a “pool of perpetrators” is a legitimate and sometimes inevitable outcome, not a judicial shortcoming;
• Appeals designed to obtain a “second bite” at the cherry, especially where evidential limits are recognised, will not be entertained.

Practitioners should therefore:

1. Draft threshold documents flexibly, anticipating possible judicial rearrangement;
2. Focus appellate arguments on demonstrable procedural unfairness or material analytical gaps – not stylistic dissatisfaction;
3. Be prepared to progress to welfare/risk assessments even when perpetrator identity remains unresolved.

The decision ultimately places children’s timely welfare front and centre, discouraging protracted litigation over marginal analytical refinements and reinforcing a pragmatic, evidence-based approach to safeguarding.