The Supreme Court has now handed down judgment in joined cases R (on the application of A) (FC) (Appellant) v London Borough of Croydon (Respondents) and R (on the application of M) (FC) (Appellant) v London Borough of Lambeth (Respondents)  UKSC 8 the case concerning the question of who is the ultimate arbiter of whether or not an individual is a “child” such that they might be determined to be a “child in need” under the Children Act 1989 (the “Act”). These two cases had been joined with five other claims for judicial review, of which the two named were treated as the lead cases.
Under section 20(1) of the Act, local authorities are obliged to provide accommodation for:
“any child in need within their area who appears to them to require accommodation as a result of:
(a) there being no person with parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care”
By section 105(1) of the Act, “a “child” means … a person under the age of eighteen”.
The appellants argued that in cases of dispute, the courts must decide whether a person is a child on the balance of probabilities. The respondent local authorities, supported by the Home Office, said that the local authority must decide the matter subject only to the principles of judicial review.
At first sight, it is hard to understand the importance of this issue. But, in fact, it has considerable practical significance. With the majority of children it will be clear whether or not they are under 18, or if it is more difficult to determine it will usually be possible to obtain a birth certificate at some stage. However, in light of the growing numbers of migrants, often unaccompanied young persons, coming to the UK some of them to claim asylum, this has become a prominent issue. If a person is under 18 and otherwise meets the criteria set out in section 20(1), then the local authority must provide them with accommodation and maintenance. There is also an indirect impact on the way in which such persons’ applications for asylum will be treated by the Secretary of State. Usually persons seeking asylum considered to be under 18 will be given discretionary leave to remain even if their claim to asylum is rejected, unless there are adequate provisions in their country of origin to look after them. In disputed cases, the Secretary of State will tend to follow the decision as to age taken by the local authority.
In this case, A arrived from Afghanistan in November 2007 and claimed asylum the following day, stating that he was fifteen and a half. The immigration officer assessed him to be 18 and referred him to Croydon local authority for an age assessment. Two social workers then interviewed A and assessed him to be an adult. A was then referred to the National Asylum Support Service. Soon afterwards, A’s solicitors produced his birth certificate showing him to be fifteen and a half. A was also examined by a paediatrician who reported him to be aged between 15 and 17. A then applied to judicially review the decision that he was not entitled to accommodation under section 20 of the Act.
M had arrived in the country in November 2006 and claimed asylum 3 days later, saying that he was just under 17. His age was disputed and he was referred to Lambeth local authority for an age assessment by two social workers who concluded he was over 18. Again a paediatrician’s report was obtained which assessed M to be 17. Judicial review proceedings were brought, Lambeth reviewed its decision but gave further reasons for concluding that M was over 18. Meanwhile an immigration judge heard M’s appeal against the refusal of asylum and the judge accepted the paediatrician’s report. The Home Office therefore granted him discretionary leave to remain.
Mr Justice Bennett decided on 20 June 2008  EWHC 1364 that the determination of whether or not a person was a child was one for the authority, not the court, and was therefore only capable of being judicially reviewed. Mr Justice Bennett also decided that the local authorities’ determinations were in accordance with the requirements of article 6 of the European Convention on Human Rights. On 18 December 2008, the Court of Appeal dismissed the appeals  EWCA Civ 1445.
The issues before the Supreme Court were:
(1) whether, as a matter of statutory construction, the duty imposed by section 20(1) is owed to a person who appears to the local authority to be a child, so that the authority’s decision can only be challenged on “Wednesbury” principles, or whether it is owed to any person who is in fact a child, so that the court may determine the issue on the balance of probabilities;
(2) whether the issue “child or not” is a question of “precedent” or “jurisdictional” fact to be decided by a court on the balance of probabilities; and
(3) whether section 20(1) gives rise to a “civil right” for the purpose of article 6(1) of the European Convention on Human Rights (the “Convention”) and if so whether the determination of age by social workers subject to judicial review on “Wednesbury” principles is sufficient to comply with the requirement that the matter be determined by a fair hearing before an independent and impartial tribunal.
Lady Hale gave the lead judgment of the Supreme Court, with which the other members of the Court (Lords Hope, Scott, Walker and Neuberger) agreed.
Mr Charles Béar QC for Lambeth argued before the Court that “child in need” was a composite phrase and that it cannot have been the intention of Parliament that the sorts of professional value judgments involved in assessing whether a child is “in need” should be made by a court. Given that the phrase was composite, age was necessarily part of this. Mr Béar QC went on to argue that where the issue was what services a local authority should provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the authority, subject only to the limitation of judicial review: there can be no clearly wrong or right answers.
However, the Supreme Court disagreed and considered that the intention of Parliament was plain from the wording of the Act. Lady Hale said that the Act made a clear distinction between whether a person was taken to be a “child” and whether a person was taken to be a “child in need”. Whilst the second question was an evaluative one depending on professional judgment, the first question could only permit of a right or wrong answer, albeit that it might be difficult to determine what that answer was. Lady Hale pointed out that the definition of a “child” was unqualified in the Act and did not depend on any subjective view, such as “a person who appears to the local authority to be under the age of eighteen”. Lady Hale noted that Parliament had specifically made this change between the 1980 and 1989 Acts. Lady Hale also pointed out that Parliamentary draftsman are alive to the kinds of debate that take place over the meaning of the wording of acts of Parliament, and therefore where as in the case of the Act “clear and sensible” distinctions had been drawn between different kinds of question, this should be respected.
Lord Hope did not agree with the argument of the Secretary of State (who appeared as an intervener) that if courts were the ultimate arbiters of whether or not a person was a child this would slow down the process of decision making by authorities and make it harder to administer. Resort to a court would only be necessary in the event of a challenge to the assessment made by a social worker. Indeed, Lord Hope pointed out that he hoped that the fact that the final decision rests with a court will assist in reducing the number of challenges made to it: “the initial decision maker must appreciate that no margin of discretion is enjoyed by the local authority on this issue”.
The decision was reached without the need to have recourse to the issue of whether or not this is properly a question of jurisdictional or precedent fact of which the ultimate arbiters are the Court rather than the local authority. Historically, this was a doctrine which was applied to inferior courts and other judicial or quasi-judicial bodies with limited jurisdiction. In any event, Lady Hale considered that “if ever there were a jurisdictional fact, it might be thought, this is it.”
Albeit that it was not necessary to reach any firm conclusions in light of the decision as to issue (1), Lady Hale did go on to consider the issue of whether or not Article 6 of the Convention applied to decisions under section 20(1). She conducted a thorough analysis of the Strasbourg case law and concluded that if section 20(1) is a civil right at all, it “rests only on the periphery of such rights” and the present decision making processes were sufficient to satisfy Article 6. Lady Hale observed that she would be “most reluctant” to accept that Article 6 required the judicialisation of claims to welfare services, unless “driven to do so” by Strasbourg authority. Lady Hale went on to point out that if the problem of decisions being made impartially cannot be resolved by the ordinary process of judicial review, then tribunals would need to be set up which determine the merits of such claims , diverting resources from the provision of services to the actual decision making. Lord Hope for his part, concluded that “it can now be asserted with reasonable confidence” that the duty of the local authority under section 20(1) to provide accommodation does not give rise to a civil right within the meaning of Article 6. Lord Walker in a one paragraph concurring judgment notes, however, that he would prefer for this issue to remain open, noting specifically that the Strasbourg jurisprudence was still developing in this area.
Update: Our attention has been drawn to a very good case note on this decision to be found on the excellent Nearly Legal housing law blog
, under the headline “Each had a wooden horse”. We commend it to our readers.