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

Section 31(2) is, I suspect, one of the most referenced provisions of the Children Act 1989 (‘CA 1989’). It is pivotal to any application under Part IV CA 1989. Unsurprisingly therefore it has been the subject of considerable judicial analysis over the last thirty-four years, since the CA 1989 came into force. Indeed, no fewer than seven decisions of the House of Lords or Supreme Court (Footnote: ¹) are focused on that single provision. There is, in the circumstances, a rich fund of authoritative judgments from which to draw.

The statutory test set out within section 31(2) (the ‘threshold criteria’) is of course designed to restrict compulsory intervention by the state in families’ lives only to those cases which genuinely warrant it, while enabling the court to make the order which will best promote the child's welfare once the threshold has been crossed.

In this appeal we have considered a short but not unimportant point relating to section 31(2) CA 1989, namely the obligation on the judge considering the threshold criteria at an Issues Resolution Hearing (‘IRH’) which is being treated as a final hearing (a) to satisfy himself or herself of proof of the same, (b) on what basis, and (c) to make relevant threshold findings. The proposition is not a new one, and seems almost too obvious to state. But in this case, a short form of judgment delivered at the conclusion of an IRH disposing of public law proceedings which were by then effectively uncontested has left the parties, and this court, in a state of ignorance as to the basis on which the judge actually approved the local authority’s right to pursue final orders under Part IV of the CA 1989 and under the Adoption and Children Act 2002 (‘ACA 2002’).

It is in this context that we have also considered the common case management practice, adopted at an interlocutory stage during these proceedings and is indeed currently supported by the Standard Form Orders template, of respondents being ‘deemed’ to accept the threshold criteria in cases where the respondents or any/either of them have filed no response to the statement of proposed threshold filed by the local authority. In this appeal we were concerned that the judge may have treated this ‘deemed’ acceptance of threshold facts as ‘deemed’ proof of the same.

On 2 June 2025, at the Family Court sitting at Peterborough, and at the conclusion of an IRH, HHJ Chaudhuri (hereafter ‘the judge’) made a final care order under section 31 CA 1989 and a placement order under section 21 of the ACA 2002 in respect of D, a girl then just over five months old. The parents were not in attendance at that hearing.

By Appellant’s Notice dated 30 June 2025, D’s parents, then both acting in person, appealed against those orders. They raised multiple grounds. On 25 September 2025, Macur LJ granted permission to appeal, but on two grounds only (see §25 below). The father has since obtained representation. The local authority and the Children’s Guardian oppose the appeal.

At the conclusion of the hearing of the appeal we informed the parties that we would allow the appeal. We discharged the care order and placement order, and substituted an interim care order. We remitted the applications to the Family Court at Peterborough for urgent case management.

Coincidentally, this appeal raises some similar issues to those considered in Re H (Final Care orders at IRH) [2025] EWCA Civ 1342 in which this court recently handed down judgment. Useful cross-reference can, and indeed should, be made to [28]-[36] ibid. (making the best use of the IRH) and [46]-[47] ibid. (judgment at the end of an IRH, making final orders).