Practice and Procedure

R (A) v Croydon London Borough Council, R (M) vLambeth London Borough Council [2009] UKSC 8; [2009] WLR (D) 342

PUBLISHED December 2, 2009

CHILDREN ? Children in need ? Age assessment ? Asylum seeker?s claim to be child disputed by local authority obliged to accommodate children in need ? Whether decision as to age for local authority or for court ? Children Act 1989, s 20(1)

SC: Lord Hope of Craighead DPSC, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond JJSC, Lord Neuberger of Abbotsbury MR: 26 Nov 2009

Where an asylum seeker?s claim to be under the age of 18 (and so entitled to accommodation under s 20(1) of the Children Act 1989) was disputed by the local authority who would have to provide the accommodation, the question of age was an objective fact to be ultimately determined, in the event of challenge, by the court.

The Supreme Court so held in allowing appeals by the claimants, A and M, against the decision of the Court of Appeal (Ward, Maurice Kay LJJ, Sir John Chadwick) [2009] PTSR 1011 upholding the decision of Bennett J [2008] FLR 1026 whereby, on a preliminary issue in judicial review proceedings brought by A against Croydon London Borough Council and by M against Lambeth London Borough Council in respect of refusals by each council to provide accommodation under s 20(1) on the ground that the claimant was over 18, the judge had held that social workers? decisions that the applicants were over 18 could not be challenged.
S 20(1) provides: ?Every local authority shall 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 who has parental responsibility for him ... ?

LADY HALE said that the question was: when disputes arose about the age of someone who was asking a local children?s services authority to provide him with accommodation under s 20(1), who decided whether he was a child or not? The claimants, supported by the Children?s Commissioner for England, said that in cases of dispute the court had to decide whether a person was a child on the balance of probabilities. The local authorities, supported by the Home Secretary, said that the authority had to decide the matter, subject only to judicial review on the usual principles of fairness and rationality. Her Ladyship said that the 1989 Act drew a clear distinction between different kinds of question. The question whether a child was ?in need? required a number of different value judgments, such as what would be a reasonable standard of health or development for a particular child? Where the issue was what service should the local authority provide, it was entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and ?Wednesbury reasonableness? (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) there were no clear-cut right or wrong answers. But the question whether a person was a ?child? was a different kind of question. There was a right or a wrong answer. It might be difficult to determine what that answer was if there was less than perfect or conclusive evidence, but that was true of many questions of fact which regularly came before the courts. That did not prevent them from being questions for the courts rather than for other kinds of decision makers. Clearly the public authority had to make its own determination in the first instance and it was only if that remained disputed that the court might have to intervene. But the better the quality of the initial decision-making, the less likely it was that the court would come to any different decision upon the evidence. The court?s approach to the determination of age did not mean that all the other judgments involved in the decision whether or not to provide services to children or to other client groups had to be subject to determination by the courts. They remained governed by conventional principles.

LORD HOPE delivered a concurring opinion and LORD SCOTT, LORD WALKER and LORD NEUBERGER agreed.
Appearances: John Howell QC and Ian Wise (Harter & Loveless) for A; Timothy Straker QC and Christopher Buttler (Bennett Wilkins) for M; Nigel Giffin QC, Bryan McGuire and Peggy Etiebet (Legal Services, Croydon London Borough Council) for Croydon; Charles Bear QC and Jon Holbrook (Sternberg Reed, Barking) for Lambeth; Nathalie Lieven QC and Deok Joo Rhee (Treasury Solicitor) for the Secretary of State for the Home Department, intervening; Richard Drabble QC and Ranjiv Khubber (Children?s Legal Centre) for the Children?s Commissioner for England, intervening by written submissions.
Reported by: C T Beresford, barrister