M & Anor, R (on the application of) v London Borough of Lambeth & Ors

Article 6 of the Convention is not engaged merely because a local authority must assess whether an asylum seeker is under 18 for the purposes of accommodation under Children Act 1989, section 20. The statutory scheme requires several evaluative judgments, including whether the person is a child in need, requires accommodation and falls within a statutory trigger. Once those conditions are satisfied, an absolute duty arises, but the preceding assessments are entrusted to the local authority. Age is not a precedent fact for the court to determine on the balance of probabilities. Conventional judicial review provides an adequate safeguard against unlawfulness, unfairness or partiality. A later tribunal’s age decision does not bind a local authority which was not involved, provided the authority considers it and gives rational reasons for departing from it.

M and A, foreign nationals seeking asylum, claimed to be children and sought accommodation from Lambeth and Croydon under Part III of the Children Act 1989. Each local authority assessed the claimant as over 18 despite paediatric evidence supporting the claimed age. In M’s case, the AIT and the Secretary of State had accepted his claimed age, but Lambeth later maintained its contrary assessment.

Holman J directed determination of preliminary issues concerning Articles 6 and 8 of the Convention, the status of age as a precedent fact, and Lambeth’s departure from the AIT and Secretary of State’s decisions. The court also considered whether paediatric age-assessment evidence should be determined at the preliminary hearing.

1. Article 6. The claims failed because the section 20 scheme did not create a civil right within Article 6(1), or alternatively there had been no determination of such a right. Section 20 must be construed as a whole. Its operation involves evaluative judgments concerning age, need, the requirement for accommodation, the statutory circumstances in section 20(1), the child’s wishes and the objections of persons with parental responsibility.
2. Following the analysis of Lord Hope in R(G) v Barnet London Borough Council [2003] UKHL 57, the court held that an absolute duty arises only once the relevant statutory requirements have been fulfilled. The age assessment is therefore one component of a wider statutory decision, not an independently enforceable civil right. Treating only age as attracting Article 6 would produce an artificial and over-judicialised scheme.
3. Even assuming Article 6 applied, the local authority’s professional and evaluative assessment was not equivalent to deciding a simple question of fact. Judicial review could provide full jurisdiction appropriate to the nature of the decision and would safeguard against unfairness, irrationality and partiality. The cases concerning simple factual decisions and a total denial of a hearing, including Tsfayo v United Kingdom and R(Wright) v Secretary of State for Health, were materially different.
4. Article 8 was not engaged by the age assessment alone. Any impact on private life depended on the outcome of the section 20 assessment as a whole. The court deferred any determination of an alleged Article 8 breach to the final hearing.
5. Age was not a precedent fact. Parliament had entrusted the local authorities with evaluating age as part of the section 20 assessment. Khawaja v Secretary of State for the Home Department concerned restraint of liberty and did not govern this social-welfare scheme. The approach in R v Oldham Metropolitan Borough Council, ex parte Garlick supported review on conventional public-law grounds.
6. Lambeth’s departure from the AIT’s decision was lawful. Lambeth had considered the AIT’s reasoning and had rational reasons for differing, including its own detailed assessment and the assessor’s relevant experience. The AIT had not seen Lambeth’s earlier assessment and had been unaware of material information.
7. Issue 4, concerning the scientific reliability of paediatric evidence, was inappropriate for determination at the preliminary hearing and was left for consideration, if necessary, at the final hearing within the full factual matrix.

The preliminary issues were answered: the age determinations did not breach Article 6; A’s age determination did not engage Article 8, subject to any final-hearing issue; age was not a precedent fact; and Lambeth’s departure from the AIT and Secretary of State’s decisions was lawful.

First-instance preliminary determination in judicial review proceedings. The judgment records an earlier order of Holman J dated 14 April 2008 directing determination of the preliminary issues.