Public children law case update – Winter 2026

Re H [2025] EWCA Civ 1342

Cobb LJ, Phillips LJ and Green LJ considered the role of the IRH in public law proceedings and in particular, the decision to make final orders at an IRH where the care plans were disputed and the evidence was incomplete.

The Facts

The proceedings concerned three boys, who were aged as follows at the time of the appeal: L (9), Y (5) and N (3). The parents of N separated in 2022, shortly after his birth. N remained living with his father. L and Y remained living with mother.

Welfare concerns emerged with respect to L and Y in mother’s care, and the local authority (‘LA’) issued proceedings in January 2023. ICO’s were made and the children placed into foster care. Proceedings were issued for N in February 2023 due to concerns about father’s chronic excessive use of alcohol, of which the LA was well-aware. N remained in father’s care under an ISO. The two applications were consolidated.

Y moved into father’s care alongside N in September 2024 following a positive assessment. This quickly broke down in December 2024 due to an incident of father attending the children’s school intoxicated. Y returned to his previous foster placement. N moved to his paternal grandmother, who was in the process of being assessed.

Notably, during the assessment process of grandmother and her partner concerns arose about historic sexual abuse and specialist work had commenced to inform the assessment. Another family member for Y had been assessed positively, subject to awaited DBS checks.

The IRH took place on 24 June 2025. Notably, this was the twelfth hearing and the proceedings were in Week 128. The LA final care plans proposed that N remained in grandmother’s care, though “subject to satisfactory work being undertaken by the couple around sexual risk”. The plan for Y was placement with the positively assessed family member. Both care plans made reference to contingency plans of adoption in the event of placement breakdown.

The LA prepared a position statement accepting that a final hearing “is required” as the parents did not agree the plans, father seeking the return of both children to his care and mother supporting this. The parents also opposed the significant reduction proposed to their contact. The LA had provided a draft case management order setting out a timetable to a contested final hearing, together with a draft witness template.

The LA had changed its position by the time of the hearing, seeking for final care orders to be made for all three children, effectively on a ‘short-term’ basis with the potential for alternative orders (i.e. SGO’s) to be applied for later. The Guardian supported this.

HHJ Shanks heard submissions and delivered judgment within a 45-minute hearing. A short ex tempore judgment was given, in which the judge made care orders with respect to all three children, concluding that there was “more than sufficient evidence to enable me to make a final decision now”.

The Appeal

Permission to appeal was sought on behalf of father which was refused by the first instance judge:

“I refuse permission to appeal. I specifically referenced in my judgment the welfare checklist. I have mentioned more than once the dynamic feature which is alcohol misuse on the part of the father, an extensive history around that, the short lived reunification, the admitted relapses in February. So far as Article 6 is concerned I have mentioned Article 8 [sic] more than once and I have mentioned welfare was my paramount consideration. I have also referred specifically to the wealth of the expert evidence. I have read, as I hope I have illustrated, the father’s statement and I have given what I think is a holistic approach to these proceedings, in train in excess of 100 weeks. These three children who have been in them, their reunification has been tested; it has failed. Permission refused”.

Permission to appeal was subsequently granted to father in October 2025 and the appeal listed as a matter of expedition. Father appealed on the following three grounds:

1. That it was wrong for the judge to make final care orders at the IRH;
2. That it was wrong to make ‘short term care orders’ as a prelude to the court making special guardianship orders;
3. That the judge’s reasoning was inadequate in declining to list the matter for a full final hearing (raising several particular criticisms).

The appeal was supported by mother and opposed by the local authority and the Guardian, though It was noted that all parties “realistically accept the paucity of judicial reasoning”.

The appeal was allowed, the court noting that the judgement suffered “from a number of incurable flaws”.  The court noted that the judge had “well-intentioned” concerns about delay but noted that the “robust resolution of public law proceedings at any stage prior to the final hearing (where evidence is tested) must never be at the expense of procedural fairness and justice.”

It was acknowledged that there had been a lack of robust case management and “the proceedings had spiralled out of control by the time of the IRH”, however, the judge allowed the issue of delay to “dominate her thinking (such that) all other considerations relevant to welfare were largely, if not completely, ignored”.

The care orders were discharged and substituted for an ICO. The case was remitted for a further urgent CMH.

Discussion / Guidance

The case helpfully draws together the various case law and other guidance documents with respect to the intention / role of an IRH, and the requirements upon the court if serious consideration is being given to making final orders at this stage of the proceedings.

The court, in particular, reiterated the following:

1. There should always be “sufficient preparation and hearing time” at an IRH, so that the parties are treated justly and fairly, and no-one is denied the opportunity to attempt properly to resolve the issues.

2. Whilst a final judgment given at IRH may be quicker than that handed down at the conclusion of a final hearing at which evidence is heard “that does not of itself relieve the judge of the obligation to give proper and clear reasons for the decision in a structured and logical way so that the parties know how the decisions have been reached, even if given ex tempore: “a reasonable structure is essential for disciplined and transparent decision-making … The need for structure is perhaps particularly true of oral (ex tempore) judgments”.

3. Where proceedings conclude at an IRH, particularly where the outcome of the proceedings are contested, there is an obligation on the judge to give clear reasons which explain:

a. Why the IRH has been used as a final hearing, and / or why the proceedings are not being case managed to a further / final hearing; and

b. The substantive final orders which are to be made at the IRH, making specific reference to:

i. the threshold criteria

ii. a review (however short) of the evidence which supports the same

iii. a discussion of the balancing exercise in which each future option for the child is evaluated

iv. the permanence arrangements in the care plan

v. the constituent elements of the welfare checklist

vi the contact provisions

4. The judge gave “no more than a summary treatment of the threshold criteria” which was “barely adequate” (if at all). An issue arose as to the parents having been ‘deemed’ to accept threshold in the absence of a response document (see linked case of Re D below).

5. All “necessary evidence” must be before the court if final orders are contemplated at IRH as per Re J (Care Proceedings: Issues Resolution Hearing) (ALC Intervening) [2017] EWCA Civ 398. In the instant case, the evidence was incomplete and the time for the filing of the final assessment on the prospective carers had not yet passed, nor were the DBS checks available. It remained incumbent on a judge to evaluate the “risk of harm” posed to the children, with reference to the well-established principles in Re T (Children: Risk Assessment) [2025] EWCA Civ 93.

6. There remained a “material issue of fact to be tried” with respect to the impact of father’s alcohol use on the potential future care planning for the children. The fundamental principle of “the right to confront one’s accusers” (as per Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR) remains in force, which in the instant case father was denied.

7. The court must give proper consideration to contact per Section 31(3A) / (3B) of the Children Act 1989. The judge fell foul of this as she “did not address at all the pros and cons of the plan, and the inevitable impact of the proposed diminution of contact on family relationships, particularly as she was aware (and had recorded) the parents’ opposition to this course”.

Re D [2025] EWCA Civ 1362

Cobb LJ, Miles LJ & Baker LJ gave consideration to Section 31(2) of the Children Act 1980, widely known as the ‘threshold criteria’, and the “common case management practice” of respondents being ‘deemed’ to accept the threshold criteria in cases where they have filed no response to the threshold document proposed by the local authority. The court was concerned that the judge at first instance may have treated ‘deemed’ acceptance of threshold facts as ‘deemed’ proof of this.

The Facts

The proceedings concerned one child, D, who had been born in late December 2024. There were concurrent proceedings for D’s older half-sibling, B. D was made subject to an ICO at the outset of the proceedings, the judge on that occasion having expressed being satisfied as to the interim threshold being crossed.

The matter was timetabled to IRH with a direction for the parents to provide a response to threshold, the order noting: “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 threshold document was revised by the local authority on two further occasions prior to the IRH. Father had filed a response to the second version, accepting some of the allegations, rejecting some and challenging the relevance of others. Mother had not responded at all.

At a hearing within B’s proceedings in April 2025, at which a final care order was made, the court noted significant non-engagement by the parents, including non-attendance at contact. By this stage the parents were both acting as litigants in person, having dismissed their lawyers. They did not attend the hearing.

The parents later sought permission to appeal the final order for B; this was refused. In giving reasons for refusing permission, King LJ “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”. It was further “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”.

The matter came before HHJ Chaudhuri for the IRH on 2 June 2025 (who had case managed the proceedings throughout). D was, by this stage, just over five months old. Neither parent was in attendance (nor represented), father having made plain to the local authority that neither of the parents 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”.”

Father had issued applications for strike out of the proceedings and for the judge to recuse himself. The judge considered, and dismissed, both as preliminary issues. He went on to consider the non-attendance of the parents, setting out a short history of the litigation to date. The judge noted that father disputed threshold and that mother had not responded. He commented: “The threshold document is relatively short and I am satisfied on the balance of probabilities that the threshold is met out [sic] in this case”. He went on to make final care and placement orders for D.

The Appeal

The parents appealed on multiple grounds. Both were acting as litigants in person in launching the appeal, though by the time of the hearing father had obtained representation.

In September 2025 permission to appeal was granted on two of the grounds:

1. “Insufficiency of threshold findings under section 31 CA 1989;
2. Inadequacy of judicial reasons for the orders.”

In granting permission, Macur LJ observed that the judge “does not indicate the evidence to which they had regard. It is arguable that the judge gives the impression that [the parents’] deliberate absence from the proceedings and [their] apparent willful 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.”

Macur LJ further noted that “whilst brevity is a virtue and although the judge patently identified the relevant legal issues to apply,…the judgment is inadequately reasoned”.

The appeal was opposed by both the local authority and the Guardian.

The appeal was allowed, the court concluding that the judgment “falls far short of what is expected” and “shows relatively little judicial engagement with the issues raised in the evidence”, having the “appearance of a quasi-administrative act, in which the judge nods through the local authority’s proposals”.

The care and placement orders were discharged and substituted for an ICO. The case was remitted for a further urgent CMH.

Discussion / Guidance

The case provides a helpful reminder as to the approach to be taken to threshold, and reiterates 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 court, in particular, reiterated the following:

1. 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.

2. It is important that the judge exercises discipline in scrutinising the statement of proposed threshold. In the instant case, the court noted two material defects in the threshold document:

a. It included “reports of” alleged facts, the inclusion of which has long since been warned against (see Re A (Application for Care Orders: Local Authority failings [2015] EWFC 11); and

b. It failed to link the facts relied upon by the local authority with the statutory threshold grounds, falling short of Re A in that ‘the conclusion does not follow naturally from the premise’.

3. 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. 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.

4. 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. The court noted that the child themselves may wish, as an adult, to know more about the history of their childhood and early life through reading the judgment.

Finally, the court noted that the current version of the Standard Form Orders provides a sample direction that respondents: “shall be deemed to accept the threshold allegations made by the local authority” in the absence of compliance with the direction to file a response.

The court’s view was that “this is not 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 following suggested alternative wording has been provided (and the Lead Judge of the Standard Orders Group invited to consider the necessary for amendment to the template orders) –

‘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.’

This appeal followed shortly after the decision in Re H (considered above). The court noted useful cross-referencing between the two judgments, given the overlap of issues.

Meghan Daniels is a barrister at Pump Court Chambers.