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

The appeal has proceeded on two complementary grounds identified by Macur LJ as:

When granting permission to appeal, Macur LJ observed:

“The judge does not indicate the evidence to which they had regard. It is arguable that the judgment gives the impression that [the parents’] deliberate absence from the proceedings and [their] apparent wilful intransigent resistance to engage with the local authority establishes the threshold without further analysis. This is regrettable in the context of the draconian nature of the orders sought and made. I am satisfied that this is a procedural irregularity which provides a compelling reason for me to give permission to appeal on the grounds indicated above”.

She later (on ground 2) expressed the view that:

“Whilst brevity is a virtue and although the judge patently identified the relevant legal principles to apply, … the judgment is inadequately reasoned”.

Mr Banerji presented the appeal for the father; the mother, in person, associated herself with his arguments. Mr Banerji highlighted the brevity of the judgment, drawing attention to the fact that more care and detail appears to be offered by the judge in dealing with the ‘strike out’ application, and the application for judicial recusal than on the issue of threshold. The overall impression given by the judgment, he argued, is that erroneous or irrelevant factors weighed more heavily with the court than the evidence which went strictly to proof of the threshold criteria. He relied on the judgment of Sir Andrew McFarlane P in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407; [2022] 4 WLR 42 at [16]/[17] (‘Re B (Adequacy of Reasons)’), which repays reproducing here:

“The task of evaluating threshold goes to the core of the judicial exercise in every case. It is, in essence, what the case is about. Unless the court has a clear and detailed understanding of the basis upon which it finds, if it does, that a particular child ‘is suffering or is likely to suffer significant harm’, substantial difficulties will be encountered when the court then moves on, as it must, to evaluate future risk of harm at the welfare stage. Public law proceedings under CA 1989, s 31 are engaged in the business of ‘child protection’. Unless a court has made detailed findings as to what it is that a particular child is to be protected from, in terms of significant harm, it is unlikely that the court will be able to undertake a focussed and bespoke evaluation of any plan to protect the child from that harm”.

He observed that the judge gave the impression of relying on the parents’ absence as the basis for proving the threshold criteria. In a case in which draconian orders are sought, such as the final care and placement order in the instant case, ‘rigorous justification’ is required for the orders and this was lacking in this case: Re B (A Child) [2013] UKSC 33; Re B-S (Children) [2013] EWCA Civ 1146.

He further argued that a party’s failure to respond to a threshold document can not or should not be construed as acceptance of threshold facts; any implied reasoning that failure to respond to threshold would discharge the burden of proof must be wrong. At most, it may be taken as neutrality. The court must still make findings based on evidence, not based on assumptions or procedural silence.

He emphasised that judicial determination of threshold is always required even in short form, reinforcing the point that the burden lies on the local authority to prove the facts: Re B (Children) (Sexual Abuse: Standard of Proof) [2008] UKHL 35; [2009] AC 11 at [2] and [3]. The mere presence of a threshold document does not satisfy the statutory requirement under section 31(2) CA 1989.

Mr Banerji argued, in relation to ground 2, that the judgment is so short and inadequate that it cannot safely stand. Moreover, the deficiencies are so grave that they could not be remedied by a request for post-judgment clarification. Mr Banerji responded to Mr Samuel’s charge that his client did not seek such clarification, by pointing out that neither of the parties who had attended the hearing – the local authority and Children’s Guardian – who could have done so there and then, and who have now tried in this appeal to uphold the patently deficient judgment, did so.

Mr Samuel accepts (I quote directly from his skeleton argument so as to reflect faithfully his concessions) that it “would have been preferable” if the judge had “explicitly” addressed each finding arising from the threshold document, and had offered a “fully reasoned and more meticulously presented” review of threshold. He accepted that this aspect of the judgment was “not set out as well as it might be” but he argued that “it is implicit within [the judgment] that the judge considered all the matters in the short threshold”. He added: “had [the judge] found certain matters in the threshold not found on the balance of probabilities, the judge would have said so”.

On the second ground, Mr Samuel conceded that the judge’s “reasoning is indeed short and lacking in detail” but argued that it is nonetheless “adequate”. As I indicated above, he suggested that the parents should have sought clarification of the judgment before appealing in line with the guidance offered in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. He referenced the pressures on the family justice system, and on the Family Court judges; finally, he reflected (with some justification it seems to me) that the judgment makes “unfortunate reading” for the local authority social work team which has “worked hard” in this case.

Ms Lee emphasised the fact that the judge had significant evidence available to him, together with detailed analysis prepared by and on behalf of the local authority and Children’s Guardian. Like Mr Samuel, she accepted that the judgment was “succinct” but disputed that it was “flawed”; she invited us to accept that the judge must have had all of the relevant points in mind when formulating and delivering his short judgment, given his knowledge of the case over the four previous hearings. She invited us to read the judgment “as a whole… a judge's explicit reasoning can be fortified by material to be found elsewhere in a judgment” and that if we did so, it would prove to be adequate (see Re S (A Child: Adequacy of Reasons) [2019] EWCA Civ 1845 at [34]: per Peter Jackson LJ).

Again, in an echo of the submissions of Mr Samuel, she argued that this is not a case where the deficiencies in the judge’s reasoning are on a scale which could not have been fairly remedied by a request for clarification.