CA-2025-001586 - [2025] EWCA Civ 1362

At §12 and §15 above, I have set out the case management orders which spelled out for the parents the consequences of them not filing a response to the statement of threshold facts. Those orders were modified versions of paragraph [148] of the compendious ‘Precedent Library of Public Law Case Management Directions and Orders’ in the Standard Form Orders Volume 2 (Order 8.0: May 2024). Family lawyers and Family Court judges are widely encouraged to use these orders, albeit that they are permitted to adapt them to such extent as may be appropriate. Paragraph [148] of the Standard Form Orders references back to [89] and [90]; together they read as follows:

“[89] The local authority shall by 4.00pm on [date] file at court and serve on the parties a schedule of the findings they seek at the finding of fact hearing and any evidence not already served upon which they rely.

“[91] [Names] shall by 4.00pm on [date] file at court and serve on the parties their statement (and those of their witnesses, if any) in response and their replies to the schedule[s] of allegations.

“[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 and to not be putting forward any alternative carers unless this paragraph is varied upon application.” (emphasis by underlining added).

I am troubled about the provision in paragraph [148] of the Standard Orders by which respondents are “deemed” to accept the “threshold allegations made by the local authority” (i.e., the allegations advanced in support of the threshold criteria) in the absence of a document filed in response. This is not in my view a safe basis on which a court should proceed on a matter of such importance; such an order may well have the effect (as shown by this case) of reducing or discouraging judicial engagement in conducting analysis by reference to the burden of proof of evidence necessary to establish the threshold facts. The effect is all too easy to see – that the determination of threshold becomes more of an administrative than a judicial act. The standard form formula has some of the characteristics of a default judgment under Part 12 of the CPR (esp. rule 12.3), which would be wholly inapt in proceedings concerning children. Moreover as Mr Banerji suggested with some force, this provision may have the unintended effect of reversing the burden of proof in a public law case – the parent who has failed to file a response document may find that they need to demonstrate why the threshold criteria is not satisfied.

While I recognise that Family Court judges need to have at their disposal practical means to promote compliance with their case management orders, a more appropriate form of words may, I suggest, be: