A, R (on the application of) v London Borough of Lambeth

For the purposes of Part III of the Children Act 1989, the local authority, rather than the court, decides whether an applicant is a child. Age is not a jurisdictional precedent fact requiring a fresh judicial determination. Even assuming that the statutory scheme engages Article 6, judicial review provides sufficient procedural protection. The scheme involves broad administrative judgments in the social-care field, and age assessment requires relevant professional experience rather than determination of a simple fact. Employment by the local authority does not make the process incurably partial where there is no real practical evidence of bias. An age assessment alone does not engage Article 8 because it is only a preliminary step in deciding entitlement to accommodation. The appeals were dismissed.

These conjoined appeals concerned age assessments of two unaccompanied asylum seekers. Lambeth assessed M as an adult, despite later medical evidence and an asylum decision treating him as a child. Croydon assessed A as an adult despite medical evidence supporting his claimed minority. Both local authorities therefore declined to provide accommodation under the Children Act 1989.

The Administrative Court, Bennett J, rejected challenges based on Articles 6 and 8 of the European Convention on Human Rights and held that age was not a precedent fact for the court to determine. The appeals raised the proper decision-maker for age, the adequacy of judicial review, and whether the assessment itself engaged Article 8.

1. Appeals dismissed. Ward LJ delivered the leading judgment. Maurice Kay LJ and Chadwick LJ agreed with the dismissal, while declining to determine conclusively whether section 20 of the Children Act 1989 confers a civil right to accommodation before the local authority has made a favourable assessment.
2. The precedent-fact doctrine applies where Parliament makes the exercise of executive power depend on the prior establishment of an objective fact. It did not make the applicant’s age a fact for the court to determine under section 20. Part III entrusted the relevant social-service functions to local authorities. The age assessment was part of the administrative process, and section 20 had to be understood as operating on the basis of the authority’s reasonable assessment that the person was a child in need. Lambeth LBC v TK and KK concerned a different statutory setting, where the issue was whether a court could exercise its own jurisdiction, and did not govern section 20.
3. Assuming that Article 6 applied, judicial review supplied sufficient compliance. The relevant inquiry required consideration of the subject matter of the decision, the manner in which it was reached and the content of the dispute, applying the approach in Bryan v UK. Part III formed a social-welfare scheme involving professional knowledge, evaluative judgments and decisions about the appropriate form of accommodation. Age was a difficult assessment requiring experience and was only a staging post towards broader administrative decisions. A full rehearing of the facts was therefore unnecessary.
4. The social workers were not institutionally independent because they were employed by the authorities responsible for accommodation. Their professional status, duties and evidence of impartiality meant that the organisational relationship did not create a real practical risk of bias. The position differed from cases where the tribunal was effectively the council itself. Judicial review could cure the lack of formal independence.
5. The age assessment alone did not engage Article 8(1). It was not a judgment affecting the applicant’s physical or psychological integrity, personal development or autonomy, but a preliminary finding in the accommodation process. The Article 8 procedural argument added nothing where the Article 6 requirements were satisfied.
6. Ward LJ’s views that section 20 imposed an absolute duty, created a correlative right and did not involve a civil right were alternative observations. They were unnecessary to the result and were not adopted as necessary holdings by the other members of the court. The court nevertheless expressed sympathy for the applicants and urged urgent procedural reform.

• Court of Appeal (Civil Division) — Appeals from the Administrative Court dismissed: [2008] EWCA Civ 1445.
• Administrative Court — Bennett J rejected the Article 6 and Article 8 challenges and held that age was not a precedent fact for the court to determine. Permission to appeal was granted on the first two preliminary issues.