Judge wrong to make “life-changing orders” with “limited explanation” at conclusion of Issues Resolution Hearing

Allowing an appeal brought by a mother and father, in D, Re (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362, Lord Justice Cobb concluded that the judge's compliance with the “fundamental” jurisdictional requirement for the making of a care order and/or a placement order (i.e. judicial satisfaction of proof of the threshold criteria), had been shown to be “wholly deficient”.

The judgment also referred to the recent case of Re H (Final Care Orders at IRH), in which the Court of Appeal ruled that a judge was wrong to terminate a care proceedings case at the Issues Resolution Hearing (IRH), despite having valid concerns about its “dreadful history of delay”, whereby the proceedings had “spiralled out of control”.

The present case concerned D, aged 10 months. Proceedings under Part IV of the Children Act 1989 were issued shortly after D's birth.

Outlining the background of the appeal, Cobb LJ said: “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).”

The IRH in question took place in June 2025. The local authority and Children's Guardian were present and represented. The parents were neither present nor represented.

The judgment was set out in nineteen paragraphs over two-and-a-half pages. The judge first dismissed two preliminary applications:

i) the father's application for strike out "on the grounds of procedural abuse, jurisdictional conflict, unresolved judicial recusal, and constitutional misconduct during live judicial review [sic] proceedings";

ii) the father's application for the judge to recuse himself. The judge indicated that "there is nothing before me to suggest any form of judicial bias"; it was pointed out that the father had been a poor attender at court hearings, and "so it is difficult to know really on what basis this court has been biased and he certainly does not provide any examples of bias as far as I can see which could even legitimately be made out".

The judge then addressed the non-attendance of the parents at the hearing, and provided a short resumé of the litigation, including the local authority's application for a penal notice in relation to the prohibition on publication of information relating to these proceedings.

The judge then turned to the application itself. At [9] he addressed the issue of the threshold criteria:

"[9] With regards to the care and placement application, in terms of the legal position, I have to first of all consider whether the threshold for the making any orders as set out in section 31 of the Children Act is made out. In this case the father has disputed threshold. The mother has not responded. I have considered the threshold document. As I say, there has been a total lack of engagement on the part of the parents. 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".

The judgment concluded:

"[18] Having considered all the realistic options in this case I am satisfied that the care order is the most appropriate order to make in this case.

[19] I endorse the care plans I have read and for the reasons I have given, [D]'s welfare requires the placement order the local authority seeks and as such I am compelled to dispense with the parents' consent to that order. In my view, both orders are necessary and proportionate."

The following grounds of appeal were submitted in response to the judgment:

i) insufficiency of threshold findings under section 31 CA 1989;

ii) inadequacy of judicial reasons for the orders.

Discussing the case, Cobb LJ said: “In circumstances such as these (at the conclusion of an IRH, on submissions only, where there has been no attendance of the respondent parents) there is no expectation that a judge will need to rehearse every argument or recite all the evidence; far from it.

“Indeed, as Sir James Munby P observed in 2013, ‘it is not necessary’ when the court concludes Part IV CA 1989 proceedings at any stage ‘for the court to find a mass of specific facts in order to arrive at a proper threshold finding’ (View from the President's Chambers: 2013). But the judge in this case did not address any of the evidence in the case, nor did he even identify the alleged facts to support the threshold. There is no reference to the burden of proof. There is no record of what he actually decided. In this case the judge did not even append the statement of threshold facts to the order, contrary to common and expected practice.”

He continued: “To compound the deficits in the judgment, the judge gives the impression (by his reference to the parents' 'total lack of engagement') 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 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.”

Turning to the second ground of appeal, Cobb LJ found that this ground succeeded for “at least” two reasons.

He said: “First, the judge's compliance with the fundamental jurisdictional requirement for the making of a care order and/or a placement order (i.e. judicial satisfaction of proof of the threshold criteria) has been shown to be wholly deficient. The consequential orders which depend upon satisfaction of threshold must necessarily fall away.

“[…] Secondly, there is almost no reasoning for the making of the final care and placement orders. I accept, as [counsel on behalf of the child] urged on us, that the judge probably knew the case well having case managed it from the start, and it is reasonable to assume that he had much of the compelling evidence in mind when he made his decision. However, the thought processes of the judge cannot be assumed; nor can they be ascertained, let alone analysed, from the judgment.”

Finally, Cobb LJ made a proposal that the Lead Judge for the Standard Orders Group should be invited to review the wording of paragraph 148 of the Standard Form Orders.

He said: “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.”

He continued: “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 [counsel for the father] 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.”

Concluding the case, Cobb LJ found that the judge was wrong to conclude the proceedings, and make “life-changing orders”, “with such limited explanation”.

He said: “As earlier indicated, we have allowed the appeal, and set aside the orders which were made…. For the time being, D will be subject to an interim care order.”

Lord Justice Miles and Lord Justice Baker agreed, with Baker LJ sharing his support for the proposal that the Lead Judge for the Standard Orders Group should be invited to review the wording of paragraph 148 of the Standard Form Orders.

Lottie Winson