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Reported Case

B (A Child)(Fact Finding) [2019] EWFC B46 – Establishing the Legal Threshold under section 31 Children Act 1989 (12 December 2019)

Date: 12/12/2019
Duncan Lewis, Reported Case Solicitors, B (A Child)(Fact Finding) [2019] EWFC B46 – Establishing the Legal Threshold under section 31 Children Act 1989

This case proved to be a complex matter because the child’s (B) background and history was not clear from the outset. Furthermore, there was no person in the UK who exercised parental responsibility for her. This case considered in detail the onus of proving threshold so that the child could remain in foster care. A great deal of sensitivity was required on the part of the instructing solicitor, particularly when ensuring that the voice of the child was directly heard in court without her having to give evidence herself.


The parties are from a country that experienced periods of political and economic turbulence. The carers entered the country as unaccompanied minors. B’s mother left her when she was one, and her father was killed during the political conflict. As such, B was placed in the care of an employee of the father. The employee raised B, despite being in a state of poverty himself. B believed that he was her father and later found he was not when her half-sister (RA) in the UK made contact with her. She applied to bring B to the UK and following protracted efforts, B came to the UK in February 2018 and resided with RA. She also formed a close relationship with RA’s friends who she looked to as family. RA went abroad to get married and left B with her friends. She then left her in the care of the family until B went to school one day in a distressed state and was accommodated by the local authority.

Legal Principles

The issues before the court were in relation to habitual residence, joinder of the family carers to the proceedings and consideration of whether the child, who was deemed to be competent, should give instructions. B refused any contact with her half-sister and the family that cared for her. She made a number of allegations against them and a fact find hearing was held.

His Honour Judge Willans was asked to conclude whether the legal threshold listed in 31(2) of the Children Act 1989 has been crossed in light of the findings and whether B has suffered significant harm, or was likely to suffer significant harm due to the care given or lack of an order being made.

The judge also noted that whilst this is an objective test, in that it refers to the reasonable parent, there is also a subjective element that the court must bear in mind, which relates to the individual circumstances of the child when considering whether the threshold has been crossed.

Fact Finding

A number of allegations were made against RA and her friends including the following:

  • RA did not ensure somebody had parental responsibility for B.

  • RA allowed her husband to live in her household even though B was uncomfortable around him and had only been in the country a few months.

  • RA would shout and scream at B if she did not carry out these chores properly causing her to be fearful and upset.

  • B has suffered feelings of upset and abandonment in being left with the friend even after RA returned from honeymoon.

  • B was required to perform household chores beyond those expected of a child of B's age including getting up at 6am to carry out these chores, walking the dog and cleaning the house.

  • B was fed different meals to the adults which caused her to feel excluded. She was not given a balanced diet.


In relation to the first allegation of not having ensured parental responsibility for B, Judge Willans held that while a lack of parental responsibility may have caused complications, the evidence did not provide a causative link or show it had a material impact on B. Similarly, other allegations such as having to perform household chores beyond B’s age; whilst considered by the judge to be established at a factual level to an extent, were not considered threshold matters or findings. All other allegations were also evidentially not found to have satisfied the threshold test under section 31 of the Children Act 1989.

As such, Judge Willans was required to scrutinise the Local Authority’s threshold in this fact finding and ultimately found that the threshold was not crossed for public law orders and thus no public law orders could be made.


Child care solicitor Ghazal Hill from the Harrow office was instructed by the guardian to represent the child (B) in these proceedings.


Find full details of this case on Bailii’s website here.
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