R(A) v Croydon LBC [2009] UKSC 8; [2009] 1 WLR 2557

Key point

  • The question whether an individual is a child for the purpose of the Children Act 1989 is a precedent fact that determines the jurisdiction of the decision maker, and is subject to review by the court

Facts

  • Under s.20(1) of the Children Act 1989, the local authority is under a duty to provide accommodation for “any child in need” within their area who appeared to them to require accommodation
  • The appellants, X and M, were asylum seekers who claimed to be under 18
  • The local authorities refused to provide accommodation to them, on the ground of its determination that X and M were adults
  • The Court of Appeal held that it was up to the local authority to evaluate whether an individual was a child for the purpose of the Children Act
  • X and M appealed against the Court of Appeal’s decision, arguing that in the event of a dispute, the court must determine whether an individual was a child on the balance of probabilities

Issue

  • Is the question whether an individual is a child for the purpose of the 1989 Act subject to final determination by the courts?

Held (Supreme Court)

  • Appeals allowed; the question whether an individual is a child for the purpose of the 1989 Act is a question of objective fact and as such, subject to ultimate determination by the courts by way of judicial review

Baroness Hale

  • The question of whether a child is ‘in need’ under the Children Act requires value judgments to be made and as such, ‘it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority’: [26]
  • However, the question of whether an individual is a child should be distinguished from the question of a ‘child in need’, as the former is a question of fact with ‘a right and a wrong answer’: [27]
  • The wording of the 1989 Act therefore shows Parliament’s intention that the question of whether an individual is a child is one of ‘jurisdictional or precedent fact of which the ultimate arbiters are the courts rather than the public authorities involved’: [29]
  • With these conclusions, there is no need to conclude whether article 6 of the ECHR applies to decisions made under s.20(1) of the 1989 Act

Commentary

  • In obiter dictum, Lord Hope offered a conclusion on the engagement of article 6(1) in the current case, holding with ‘reasonable confidence’ that the local authority’s duty under s.20(1) to provide accommodation for any children in need ‘does not give rise to a “civil right” within the meaning of article 6(1)’: [65]
  • The criteria that needs to be met by a local authority in making an age assessment was laid out earlier by the Queen’s Bench Division in the case of R. (on the application of B) v Merton [2003] EWHC 1689 (Admin); [2003] 4 All E.R. 280.  It is only after this initial age assessment is challenged by way of judicial review that the court may step in to determine an individual’s age