In s.31 Children Act 1989 proceedings, respondent parents to an application for a care/supervision order are directed to respond to the applicant local authority’s ‘threshold document’, which is supposed to succinctly set out the grounds upon which a local authority assert the legal test is met for a care/supervision order.
For various reasons, it is not uncommon for one or more parents to not respond to threshold by the time they are directed to do so.
This has led to the Family Court adopting an approach of deeming a parent’s acceptance of threshold in the event they do not comply with the direction for their response in time.
This approach has recently been criticised by the Court of Appeal in the case of Re: D (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362.
Key points of decision
In their judgement, the Court of Appeal reminded themselves and practitioners that a Court:
“needs to identify basis on which the threshold criteria are established … and expressly confirm judicial endorsement of the same” [40].
Further, the court re-affirmed that s.31 Children Act 1989 puts the “obligation squarely on “the court” to be “satisfied” of the threshold criteria …” pleaded by an applicant local authority, and therefore cannot be “… determinatively resolved by agreement between the parties, nor by default; the court must scrutinise the documents carefully and satisfy itself” [41] the legal test is met for orders.
The court also reiterated that the threshold criteria operates as a “bulwark” against interference by the state in family life too readily.
Turning to the approach of deeming a parent’s acceptance to the threshold, the Court of Appeal made it clear that it is inappropriate to proceed on that basis, with Cobb LJ saying, at paragraph 57;
“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 … 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 Court of Appeal also identified that the practice of deeming a parent’s silence as acceptance is incorporated in paragraph 148 of the Standard Orders by which parents are “deemed” to have accepted the threshold in the absence of a response to threshold document.
Unsurprisingly, within the Cout’s judgement, Cobb LJ invited the Lead Judge of the Standard Orders Group to consider the issue and decide whether amendments to the Standard Orders should be made.
Discussion
Cobb LJ and the Court of Appeal are, in my opinion, clearly correct and this judicial clarification is long overdue to put an end to this incorrect approach.
For those family lawyers who can still remember their contract law days, one may recall the legal maxim ‘silence does not constitute acceptance’.
It has been shown that the same should be followed by the Family Court when determining threshold.
To openly state that a defaulting parenting is to be deemed to accept threshold, runs the real risk of the court “lowering their judicial guard” [43] and distract itself from the important duty the act bestows upon it to scrutinise the threshold as pleaded for itself.
As an aside, one has often considered the human effect on a parent in respect of threshold, and why they may not respond on time, if at all.
Often it is overlooked that parents are human, with their own set of troubles and fragilities to contend with, to various degrees.
It is regularly the case that a parent must go through the unimaginable torment of having their child(ren) removed by the State against their will.
To compound matters, they are the expected, usually within two weeks, to read and go through papers with their solicitor.
This is no doubt a difficult process, and to then respond to criticisms of their parenting in such a short space of time, usually with a professional who they have not built a professional relationship with at that stage.
It is hoped that this important judgement brings about change throughout the jurisdiction, and that the Standard Orders Group amends the standard orders accordingly.
by Todd Killeen
