The Court of Appeal’s judgment in Re D brings renewed focus to how threshold is approached when parents have not engaged with proceedings. The decision makes clear that the statutory test cannot be treated as satisfied simply because a parent has failed to respond or attend. What mattered in Re D was not the parents’ absence, but the lack of proper judicial scrutiny of the evidence said to support threshold. Graeme Bentley draws out the main points from the case and highlights the areas that require particular care when preparing or relying on threshold material.
Background to the Appeal
In Re D (A Child) [2025] EWCA Civ 1362 the lead judgement was delivered by Cobb LJ. The Court of Appeal was considering the obligation on the judge considering the threshold criteria at an issues resolution hearing (IRH) where the parents were not in attendance. The court looked further at the concept of respondents being “deemed” to accept the threshold criteria where they had filed no response to the local authority threshold document.
Care and placement orders were made in respect of D, a girl then just over 5 months old. Proceedings had been commenced shortly after birth based upon the mother’s mental instability, her lack of engagement with professionals and her lack of insight, and an interim care order had been immediately granted. This was later expanded to the father’s criminal offending and use of drugs, his mental health and conduct towards professionals, mother’s neglect of older sibling B and exposure of her to the risk of sexual harm. The final threshold document was not, however, Re A compliant [19].
The parents had been directed to file responses to threshold with a standard order being made that they would be deemed to not dispute threshold as pleaded if they failed to do so. The parents largely did not engage with the proceedings and similar warnings were issued to them as the matter proceeded. A full care order was made during the proceedings in relation to a sibling, B, who was not the subject of the appeal. There was further provision that if the parents should fail to attend the scheduled IRH, the court may make final orders including care and placement orders.
The parents did not attend the IRH, making allegations of judicial bias and breach of ECHR rights but applying to strike out the proceedings. The trial judge struck out the parents’ applications. He delivered a short judgment in which he cited the non-engagement and non-attendance of the parents and declared himself satisfied that the threshold was made out on the balance of probabilities [22]. The parents then appealed on the basis of insufficiency of threshold findings and inadequacy of judicial reasons.
The Court of Appeal allowed the appeal and remitted for further case management. It made reference to its earlier recent judgment in Re H (Children)) [2025] EWCA Civ 1342; [2025] 4 WLR 119 where the court had also set aside care orders at an IRH, stressing the need for fairness in procedure and reminding that procedural efficiency could never override the requirements of Article 6 ECHR. In the present matter, case management had been complicated by parental non engagement. It was entirely understandable that the Judge sought to conclude proceedings at the IRH. However, the ultimate resolution had to be done in a fair and just way; if final orders were to be made, they needed to be clearly and even briefly reasoned, and those reasons laid out in a judgment.
Judicial Scrutiny and the Limits of Non‑Engagement
Unfortunately, in this case, the judgment had “the appearance of a quasi-administrative act, in which the judge nods through the local authority’s proposals” [39]. The court had to be satisfied that threshold was met, this could not be determinatively resolved between the parties or by default; there must be scrutiny of the documents [41].
It was for the Judge to scrutinise the threshold document which was not Re A compliant; he should have rejected it as presented and to use his power to reach a conclusion other than that sought [42]. The threshold criteria operated as a “bulwark” against too ready an interference by the state in family life. Case law established that it was for the court firstly to decide whether the threshold criteria were met and that, while the local authority may take action based upon reasonable suspicions and beliefs, it was the court to decide whether such suspicions were well founded [45]. A mere judicial acknowledgement and agreement of the local authority’s statement of threshold facts gives the appearance of an administrative act, particularly if the parents are “deemed” to have accepted it through a case management default or mis-step [46]. 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 with the “losing party” being left in no doubt why they had “won or lost;” this is all the greater in the case of care and placement orders [47].
There is no less duty if the parents are absent; in addition, the child may, as an adult, wish to know more about their history and the reasons for separation and may seek access to the judgment – in this case, D would be none the wiser [48]. There was no duty in the circumstances of this case to rehearse every argument but here the Judge did not address any of the evidence, identify the threshold facts or refer to the burden of proof and there was no record of what he had decided [49]. Threshold could not be established through non engagement and attendance but the judgment gave the impression that it could [50]. The fundamental jurisdictional requirement for the making of care and placement orders was wholly deficient with there being no reasoning for the making of the same [52-53]. It could not be for the parents to seek clarification of the judgement in such circumstances – this was not a case where it was permissible for the appeal court to “fill in pieces of the jigsaw;” here the court would have had to “do the entire puzzle itself” [54].
Problems With Standard Orders and Suggested Alternatives
The orders under appeal were of the most serious kind, made only in exceptional circumstances and Judges needed to explain properly why substitute care is required [55]. The Court was troubled by the standard form of orders where they provided that a party may be “deemed” to accept threshold in the absence of a response; such provision did not encourage judicial engagement, was more akin to a “default judgment” in civil claims which was wholly inapt for children proceedings and potentially reversed the burden of proof [57]. It suggested alternative wording on the following lines:
“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.”
It would be helpful for the wording to be reviewed by the Lead Judge of the Standard Orders Group [58 and 62]. The appeal was allowed with the matter remitted for a further case management hearing at the local court to take place within two weeks.
Practical Reminders for Local Authorities
- Make sure that your threshold criteria (including on an interim basis) are Re A compliant – i.e. that they set out the specific harm alleged, how this is said to be attributable to the child not receiving the requisite parenting or their being beyond parental control and the specific evidence relied upon to support this.
- Consider from day one how you are going to prove each and every threshold allegation – whether the parent (or any third party against whom findings are sought) contests it or ignores it. What witnesses can you call? Have they made statements in accordance with the rules (not just inputted to meetings or written letters)? The fact that a social worker mentions something in their statement does not mean that they are a witness of it or can prove it. It needs to be clear on who saw what.
- If a parent fails to co-operate, do not assume the threshold to be a “done deal” but be prepared to produce all or any of the evidence to a judge who asks for it.
- Remember at all times that it is for the local authority to prove its case. Suspicions or allegations are not facts. Until a judge makes findings, the threshold is no more than suspicions or allegations. If a finding is refused on the evidence, the binary system of proof means that it is treated as not having happened.
By Graeme Bentley, Principal Solicitor at Invicta Law and Accredited Member of the Law Society’s Children Panel.
Disclaimer: This article does not constitute legal advice and is provided for general information purposes only. Published 26 January 2026.
