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

Case management of these proceedings had for some time been complicated by the parents’ almost complete lack of engagement; the mother had attended court only once since the application was issued, and neither parent had attended court since 10 January 2025. They had refused to be assessed by the local authority in relation to their parenting; the father failed to attend many contacts with his daughter. Following the hearing on 13 February 2025 they dismissed their lawyers. This presented unusual challenges for the judge, particularly at the point at which he wished to bring the proceedings to a conclusion.

The parents had proper notice of the hearing on 2 June, but they had chosen not to attend; for those reasons, it is entirely understandable that the judge considered that he could conclude the proceedings at the IRH. Due warning had been given to the parents of this possibility more than once; it is an outcome which is, in any event, contemplated within the Public Law Outline (see PD12A Family Procedure Rules 2010).

However, the ultimate resolution of the proceedings had to be done in a fair and just way; if final orders were to be made, they needed to be clearly – even if briefly – reasoned, and those reasons laid out in a judgment (see my comments in Re H (at [46]-[47])). Sadly, the judgment under review falls far short of what is expected. Taken as a whole, it shows relatively little judicial engagement with the issues raised in the evidence; indeed, it is not possible to identify even the general nature of the allegations, let alone any findings made. The judgment has the appearance of a quasi-administrative act, in which the judge nods through the local authority’s proposals.

It is as well to remember why a judge needs to identify the basis on which the threshold criteria are established in any given case, and expressly confirm judicial endorsement of the same, even where the process is essentially uncontested. This point has been canvassed in the courts many times in recent years; it is unnecessary for me to rehearse the anthology of the latest caselaw. That said, useful reference can of course be made to Re A (above) and the passage cited from Re B (Adequacy of Reasons) (at §28 above).

First, section 31(2) CA 1989 places the obligation squarely on “the court” to be “satisfied” of the threshold criteria; the section is explicit that the court can “only” go on to make an order under Part IV if it is so satisfied. This means that the threshold cannot be determinatively resolved by agreement between the parties, nor by default; the court must scrutinise the documents and satisfy itself of proof of the same and say why it is so satisfied. This is, as Mr Banerji rightly put it, “non-negotiable”. The court must make threshold findings.

Secondly, it is important that the judge exercises discipline in scrutinising the statement of proposed threshold. In this case, for the reasons which I have set out at §19 above, the final threshold statement was defective, in that the local authority was seeking to rely in part on witnesses’ ‘reports’ and ‘evidence from [witnesses]’ in place of established facts, and had failed to link some of the pleaded facts with the statutory threshold grounds. The judge should therefore have rejected the threshold as it was presented to him. The judge is not required of course “slavishly to adhere to a schedule of proposed findings”, and can reach a conclusion other than that sought (see Wall LJ in Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10, [2009] 1 FLR 1145 at [15]); in this case, he plainly could – on the evidence – have done so. It is worth remembering in this context what Henry LJ said in Flannery v Halifax Estate Agents [2000] 1 WLR 377 (‘Flannery’) at p.381G-H:

“…a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not”.

The case management orders made in this case (see §12 and §15 above) which ‘deemed’ the parents to have accepted the threshold facts, coupled with their almost total disengagement from the legal process, may well have caused the judge to lower his judicial guard, and distract him from the important duty which he owed under the CA 1989 in this respect.

Thirdly, the judge rightly identified that the father had filed a document in which he “disputed threshold” (in fact the Interim Threshold (2) document) (see §16 above). Having identified the dispute on threshold, the judge plainly needed to determine it.

Fourthly, and importantly, it has long been recognised that the threshold criteria operates as the “bulwark” against too ready an interference by the state in family life (see Lord Nicholls in In re O (Minors) (Care: Preliminary Hearing) [2003] UKHL 18, [2004] 1 AC 523 at [14] and [17], and Baroness Hale in Re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9;| [2013] 1 AC 680  at [20]). In an earlier decision of the House of Lords (Re B [2008] UKHL 35) Baroness Hale had spoken of the importance of judicial scrutiny of the alleged threshold facts (at [54] and [58]):

“[54] The threshold is there to protect both the children and their parents from unjustified intervention in their lives”.

…

“[58] The local authority make the application for a care or supervision order under section 31(1) and the local authority will be responsible for carrying out any order which the court may make. The task of the court is to hear the evidence put forward on behalf of all the parties to the case and to decide, first, whether the threshold criteria are met and, second, what order if any will be best for the child. While the local authority may well take preliminary or preventive action based upon reasonable suspicions or beliefs, it is the court's task when authorising permanent intervention in the legal relationship between parent and child to decide whether those suspicions are well-founded.” (emphasis by underlining added).

She returned to these points in Re J at [44] when she spoke of the need for “a clearly established objective basis for such interference”.

The “objective” check referred to in the quote from Re J (immediately above) is self-evidently offered by the judge. Thus, a mere judicial acknowledgement of the local authority’s statement of threshold facts and an indication of judicial agreement gives the appearance of an administrative act, all the more so if the parents have been ‘deemed’ to accept the threshold facts by reason of a case management default or mis-step.

Finally in this regard, the court owes a duty to the parties to set out the basis on which the orders are being made; justice must not only be done but be seen to be done. This is true in any case, as recent well-known caselaw has underlined (see for example Baker LJ in Re T & Others (Children: Adequacy of Reasons) [2023] EWCA Civ 757; [2024] 1 FLR 303 at [35].) Fairness requires that the parties, especially the “losing party”, should be left in no doubt why they have “won or lost” (Flannery again, at 381G). The duty will be all the greater if the orders which the judge proposes to make are of the draconian nature of care and placement orders.

There is no less a duty upon the judge to express clearly their findings and reasons if any of the parties (the parents in this instance) are absent from the hearing at which these crucial decisions are being made, even if absent by their own choosing. Moreover, it should be remembered that the child herself may as an adult wish to know more about the history of her childhood and early life, and in particular the reasons for her separation from her parents and the permanent severance of her family ties. In this regard, it is distinctly possible that she will seek access to the judgment which gave effect to her permanent placement away from parents; if D were to read the judgment under review, she would I regret be left none the wiser.

In circumstances such as these (i.e., at the conclusion of an IRH, on submissions only, where there has been no attendance of the respondent parents) there is no expectation that a judge will need to rehearse every argument or recite all the evidence; far from it. Indeed, as Sir James Munby P observed in 2013, “it is not necessary” when the court concludes Part IV CA 1989 proceedings at any stage “for the court to find a mass of specific facts in order to arrive at a proper threshold finding” (View from the President’s Chambers: 2013). But the judge in this case did not address any of the evidence in the case, nor did he even identify the alleged facts to support the threshold. There is no reference to the burden of proof. There is no record of what he actually decided. In this case the judge did not even append the statement of threshold facts to the order, contrary to common and expected practice.

To compound the deficits in the judgment, the judge gives the impression (by his reference to the parents’ ‘total lack of engagement’ – see [9] cited at §22 above) that the “deliberate absence of the parents from the proceedings and their apparent wilful intransigent resistance to engage with the Local Authority establishes the threshold without further analysis”. This was (see §26 above) Macur LJ’s observation when granting permission to appeal, and I concur with it. The parents’ lack of engagement with the proceedings could not, as a bald fact, establish a ground for proof of the threshold criteria, and it had no place therefore in this section of the judgment.

I turn to the second ground of appeal. In my judgment, this ground succeeds for at least two reasons.

First, the judge’s compliance with the fundamental jurisdictional requirement for the making of a care order and/or a placement order (i.e. judicial satisfaction of proof of the threshold criteria) has been shown to be wholly deficient. The consequential orders which depend upon satisfaction of threshold must necessarily fall away; Sir James Munby P graphically described an equivalent final order based on a flawed threshold statement in Re A at [11] as“a tottering edifice built on inadequate foundations”.

Secondly, there is almost no reasoning for the making of the final care and placement orders. I accept, as Ms Lee urged on us, that the judge probably knew the case well having case managed it from the start, and it is reasonable to assume that he had much of the compelling evidence in mind when he made his decision. However, the thought processes of the judge cannot be assumed; nor can they be ascertained, let alone analysed, from the judgment. As Peter Jackson LJ observed in Re B (Adequacy of Reasons) at [57]:

“The court's task is not accomplished by handing down a decision that happens to be correct if it is not also properly explained”. 

While Ms Lee was also right to draw our attention to Re S (at [34]) (see §35 above), I did not find that if I read this judgment “as a whole” I could ascertain any or any adequate reasoning for the final orders. While Sir Andrew McFarlane P accepted that “[it] is permissible to fill in pieces of the jigsaw when it is clear what they are and where the judge would have put them” ([34]), in this case, and on this judgment, I would find myself having “to do the entire puzzle itself.” For this reason, I reject the argument raised by the respondents to this appeal that this was a case in which it would have been appropriate for the parents to seek clarification of the judgment. This was a case which falls to be considered much more closely in line with the situation discussed by Baker LJ in Re O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149 at para. 61:

“… where the omissions are on a scale that makes it impossible to discern the basis for the judge's decision, or where, in addition to omissions, the analysis in the judgment is perceived as being deficient in other respects, it will not be appropriate to seek clarification but instead to apply for permission to appeal."

Finally, it has to be remembered that the orders under appeal are of the most serious kind; the test for severing the relationship between a parent and child is rightly strict. Judges need to explain properly why permanent substitute care is required. These orders, after all, are made:

“… only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.” (Baroness Hale in re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 (emphasis by italics in the original).