KK (A Child), Re

Where a court has made a direction under section 37 of the Children Act 1989 on the presumption that a person may be a child, the local authority cannot determine conclusively whether the statutory threshold of childhood is satisfied. That jurisdictional fact is for the court.

A report asserting that the person is an adult is preliminary rather than a substantive response to the direction. The court may hold a fact-finding hearing to determine age and, if childhood is established, require a substantive report. The power remains discretionary. Family proceedings must not be created or maintained merely to bypass a local authority’s age assessment or the proper supervisory jurisdiction of the Administrative Court.

A person who claimed to be a 15-year-old child commenced family proceedings after arriving in the United Kingdom. Her asserted father disputed her identity and age, while a DNA test later established that he was not her father. The London Borough of Lambeth assessed her as probably being an adult and proposed to end the accommodation supplied to her as a child.

During subsisting family proceedings, Charles J directed Lambeth under section 37 of the Children Act 1989 to investigate her circumstances. Lambeth responded that she was over 18 and therefore that no care proceedings or children’s services were appropriate. Holman J then directed a fact-finding hearing to determine whether she was a child and, if possible, her age and identity.

Lambeth appealed, contending that its assessment could be challenged only by judicial review. The central issue was whether the Family Division could itself determine age following a presumptively valid section 37 direction.

1. Appeal dismissed unanimously. The court which made the section 37 direction was entitled to conduct a fact-finding hearing to determine whether the applicant was a child. Lambeth could not conclusively determine whether the jurisdictional requirements for the court’s direction existed.
2. Section 37 of the Children Act 1989 contains threshold requirements that there must be a child, family proceedings and a question in those proceedings concerning the child’s welfare. It must also appear to the court that a care or supervision order may be appropriate. Unless legislation clearly provides otherwise, whether statutory threshold requirements for a judicial power are satisfied is for the court. A local authority may make submissions on those matters, but it is not their arbiter.
3. Lambeth’s report was preliminary rather than a substantive response to the section 37 direction. It asserted that the first threshold requirement was absent and consequently did not address the applicant’s present circumstances, future welfare or the action contemplated by section 37(2). The court could therefore determine whether she was a child. If she was, the existing direction could be maintained so that Lambeth provided the required substantive assessment.
4. The jurisdiction arose from section 37 itself. There was no need to invoke the High Court’s inherent jurisdiction, a precedent-fact doctrine derived from judicial review, or article 8 of the European Convention 1950. County courts and family proceedings courts possess the same jurisdiction when considering, or having presumptively made, a section 37 direction.
5. The power is subject to an important safeguard. A court must ensure that family proceedings are not a contrivance designed to obtain a judicial reconsideration of a local authority’s age assessment and thereby bypass the statutory scheme. If proceedings are being misused, the court should end them. Even where they continue, the discretionary section 37 power must be exercised with care so that the court does not assume a general supervisory or merits-review function over local authority decisions.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 103, dismissed Lambeth’s appeal unanimously and upheld the direction for a fact-finding hearing.
2. High Court, Family Division: Holman J directed a three-day fact-finding hearing to determine whether the applicant was under 18 and, if possible, her approximate age and identity.
3. High Court, Family Division: Charles J had earlier made a direction under section 37 of the Children Act 1989 requiring Lambeth to investigate the applicant’s circumstances.