![CA-2025-001586 - [2025] EWCA Civ 1362](https://backend.juristeca.com/files/emisores/logo_Sjvxvlx.png){kind=logo}
Outline background facts
Outline background facts
D was born in late December 2024. She is now aged ten months. She is the mother’s second child. Her older half-sister B was born in 2019. On 25 April 2025 B was made the subject of a care order and was placed in the care of the local authority. This appeal does not affect B. It is unclear whether the parents are still in a relationship.
Proceedings under Part IV of the Children Act 1989 were issued shortly after D’s birth, and the application was listed for an urgent hearing on 24 December 2024.
Within its initiating paperwork, the local authority produced a document entitled ‘Initial Threshold’ setting out the facts on which it asserted that grounds for making an interim care order (sections 31(2) and 38 CA 1989) would be established; that document focused on the mother’s mental instability, her lack of engagement with professionals, and her lack of insight. On that day, the judge expressed himself to be satisfied as to the interim threshold and made an interim care order. Both parents had been legally represented at the hearing; the father had been in attendance but the mother had not.
On 10 January 2025, a case management hearing took place; both parents attended and were represented. The judge gave a range of directions, including a requirement on the local authority to file a statement of proposed threshold; in turn, the parents were required to file a ‘response to threshold’. The order continued:
“… [5] If the parents fail to comply with this direction [for the filing of the response to threshold] they shall be taken as not disputing threshold criteria as set out by the local authority”.
The proceedings were timetabled to an IRH, with an express indication that the IRH may be used as a final hearing, and that “if the parents fail to attend the hearing without good reason the court may make final orders including care and placement orders”.
On 4 February 2025, the local authority filed the second version of the statement of threshold (‘Initial Threshold (2)’); this expanded the grounds of the first version and included specific factual allegations against the father, including his criminal offending and his use of proscribed drugs.
A further case management hearing was held on 13 February 2025, specifically listed for the judge to consider the mother’s application for an independent social worker assessment; neither parent attended, although they were represented. The mother’s application was refused. The order made on that day contained recitals which encouraged the parents to engage with the parenting assessment which had been ordered. The order re-stated the consequences for the parents of failing to comply with the direction for the filing of responses to threshold, namely “they shall be taken as not disputing threshold criteria as set out by the local authority”. A recital was added to this order:
“The Court highlighted that in the absence of engagement by the parents and in light of no alternative carers being proposed, the parents should be aware that the local authority is likely to formulate a care plan for adoption”.
On 25 February 2025, the father filed a written response to Initial Threshold (2); in that document, he accepted some of the allegations, rejected some, and challenged the relevance of others to the threshold test.
A further hearing was held on 25 April 2025; a final care order was made in relation to B. The court also considered the local authority’s application pursuant to section 34(4) CA 1989 in relation to the mother’s contact with B and D; this was granted, giving permission to the local authority not to offer contact between the mother and B and D. The father had by then stopped attending contact and no order was sought in respect of him. Neither parent attended that hearing, nor were they represented. The parents, then both acting in person, sought to appeal these decisions; King LJ refused their application for permission to appeal. In giving her reasons for refusing permission it was made clear to the parents how important it would be to attend the IRH on 2 June 2025 given that the local authority would be seeking care and placement orders. King LJ specifically pointed out on the face of the order that by disengaging from the court process the parents had denied themselves the opportunity to put their case or to challenge that of the local authority.
On 2 May 2025, the local authority filed its final ‘Statement of Threshold’. It is a short, four paragraph, document, and it referred to:
The mother’s history of poor mental health, and its impact on her relationship with professionals; it was said that she was “unable to demonstrate an ability to prioritise D’s needs when dysregulated”;
The father’s history of criminal offending, specifically in relation to drug use and drug dealing; it was said that the father was still using drugs and that D “would be exposed to drug use if in his care”; that the father was not honest about his drug use; in this paragraph it was said that “in August 2024 the police reported that [the mother’s] home smelt of cannabis when [the father] was present”;
The father’s history of depression and anxiety; the father’s pursuit of “a course of conduct against professionals within the local authority and externally in which he has threatened to report them to their regulatory body, initiate a media campaign about his grievances, and to pursue civil litigation against them”;
A range of findings made against the mother which founded the basis for the care order in respect of B: “exposed B… to risk of sexual harm; [failure] to prioritise the educational needs of B…. B was exposed to neglect”.
Pausing there, the final threshold statement filed by the local authority in this case is to my mind defective in two material respects:
it includes “reports of” alleged facts (see (ii) above); in a later paragraph ([16] see §24 below) the judge refers to “the evidence from the professionals are [sic] that if [D] were to be returned to her parents’ care she would be at risk of significant harm”; however “this form of allegation, which one sees far too often in such documents, is wrong and should never be used” (see Sir James Munby P in Re A (Application for Care Orders: Local Authority failings) [2015] EWFC 11 at [10]: ‘Re A’);
it fails clearly to link the facts relied upon by the local authority with the statutory threshold grounds. It is essential for an authority to demonstrate why certain facts justify the conclusion that the child has suffered, or is at risk of suffering, significant harm. A case based on a lack of honesty with professionals (see §18 (i), (ii), and (iii) above) must feed through into a conclusion that the child is suffering or likely to suffer a particular type of significant harm. In this case, as I regret in many others of its type, “the conclusion does not follow naturally from the premise” (see generally Re A at [12]).
The IRH took place on 2 June 2025; the local authority and Children’s Guardian were present and represented. The parents were neither present nor represented. The father had issued applications for strike out of the proceedings, and for the judge to recuse himself; he had further made plain to the local authority that neither he nor the mother would attend the hearing, taking a deliberate and principled stand against a process that had, in their view, been “tainted by judicial unfairness and breach of ECHR rights”.