The Court of Appeal have just given judgment in a case where the Court had made earlier orders saying that if the parents did not respond to threshold criteria by x date, threshold would be deemed to be met. The parents did not attend the IRH and the Judge at first instance made Care Orders and found threshold to be met in accordance with the draft version of threshold.
D, Re (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362 (30 October 2025)
URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/1362.html
The Court of Appeal noted some failings with the threshold document, and also noted that the father had provided an earlier response to threshold indicating that he disputed it.
Their conclusion was that the (fairly common) practice of making an order that deems a lack of response to threshold to being deemed that the threshold is satisfied is not the right approach. (This practice is one which is endorsed in the Standard Form Orders, so it is not perhaps a surprise to find Courts using it)
The onus is still on the Judge to engage with the evidence and the issue of threshold and to make findings. The Court of Appeal made it plain that failure to engage with the process does not amount to a compelling reason why the threshold criteria is satisfied.
Paragraph 50
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.
The Court of Appeal give a refined version of the standard order and they invite the Standard Orders Group to consider amending it.
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:
‘If the parents fail to respond [to the schedule of findings in support of the threshold criteria], the court may proceed to consider [at the next hearing / at the IRH / at the final hearing] whether the section 31(2) Children Act 1989 threshold criteria are established by reference to the written evidence filed by the local authority.’
In the circumstances, I would invite the Lead Judge of the Standard Orders Group (Peel J) to consider this point, and to decide whether amendments to [148] of the Standard Orders compendium Order 8.0 should be made.
suesspiciousminds 