R (on the application of A) v London Borough of Croydon and one other action

Whether a person is a child for the purposes of section 20(1) of the Children Act 1989 depends objectively upon whether that person is under 18. A local authority’s reasonable assessment cannot conclusively determine that boundary.

The authority must make the initial age assessment. If a live dispute remains, the court must determine the person’s age on the available evidence. By contrast, evaluative questions about whether a child is in need and appears to require accommodation are entrusted to the authority, subject to ordinary judicial review.

Judicial review can adapt to determine disputed jurisdictional facts. The court left open whether entitlement under section 20(1) is a civil right under article 6(1) of the European Convention on Human Rights.

The conjoined appeals concerned two asylum seekers, A and M, who claimed to be under 18. Social workers employed respectively by Croydon and Lambeth assessed them as adults, notwithstanding later paediatric evidence supporting their claimed ages. Each sought judicial review concerning entitlement to accommodation under section 20(1) of the Children Act 1989.

Bennett J determined the preliminary issues in favour of the authorities: [2008] EWHC 1364 (Admin). The Court of Appeal dismissed the appeals: [2008] EWCA Civ 1445, [2009] PTSR 1011.

The principal issue before the Supreme Court was whether “child” was an objective or jurisdictional fact for the court, or a matter for the authority subject only to conventional judicial review. A further issue was whether section 20(1) conferred a civil right within article 6(1) of the European Convention on Human Rights.

1. The appeals were allowed unanimously and the Court of Appeal’s order was set aside. Lady Hale delivered the leading judgment. Lords Scott, Walker and Neuberger agreed with her reasons, while Lord Hope agreed fully on the determinative age issue.

2. Under section 105(1) of the Children Act 1989, a child is a person under 18. That is an objective fact with a right or wrong answer, even where the evidence makes the answer difficult to establish. Section 20(1) does not extend or restrict the definition to a person whom the authority reasonably believes, or who appears to it, to be under 18.

3. The statutory language distinguishes the objective question whether there is a child from evaluative questions concerning need and the apparent requirement for accommodation. Questions such as the likelihood of impaired health or development, the appropriate standard of welfare and the services required are for the local authority, subject to fairness and Wednesbury rationality. Age instead defines an outer boundary of the Act’s jurisdiction.

4. The authorities must undertake the initial age assessment. Resort to the court becomes necessary only if a live dispute remains. The court must then determine where the truth lies on the evidence. Judicial review can adapt to resolve disputed facts, and the court’s ultimate role does not transfer other evaluative decisions about welfare services from public authorities to the judiciary.

5. The statutory context confirmed this construction. Earlier legislation had expressly referred to children who appeared to the authority to be below the relevant age, but section 20(1) omitted that qualification. Other provisions governing coercive action or secure accommodation likewise used “child” objectively. Authorities decided under statutes which entrusted factual satisfaction to the relevant authority did not govern this differently worded scheme.

6. The article 6(1) issue did not require determination because any disputed age would be decided by an independent court. Lady Hale was inclined to regard any civil right involved as peripheral and conventional administrative decision-making followed by judicial review as adequate. Lord Hope separately concluded that section 20(1) created no civil right because entitlement depended upon evaluative judgments. Lord Walker expressly preferred to leave that developing question open.

7. The parties were invited to make submissions within 14 days concerning the precise relief and costs.

• United Kingdom Supreme Court: The conjoined appeals were allowed unanimously and the Court of Appeal’s order was set aside: [2009] UKSC 8. Further submissions on relief and costs were invited.
• Court of Appeal: The appeals from Bennett J’s rulings were dismissed: [2008] EWCA Civ 1445, [2009] PTSR 1011.
• High Court, Administrative Court: Bennett J determined the preliminary issues concerning statutory construction, jurisdictional fact and Convention rights in favour of the local authorities: [2008] EWHC 1364 (Admin).