“That is the question, easy to ask but not so easy to answer” – as it takes the Court of Appeal 40 pages (right before Christmas, thank you very much, hence this rather late note) to answer that question in R (A) v LB Croydon; R (M) v LB Lambeth  EWCA Civ 1445 I’d have to agree.
M and A arrived in the UK from Libya and Afghanistan respectively. Both applied for aslyum – M to Lambeth and A to Croydon. Both applicants said that they were under 18, but social workers decided that they were over 18. The decision on age is an important one – if an individual is under 18, and therefore a child, responsibility lies with the local authority (see ss. 17 & 20 of the Children Act 1989). For adults the responsibility lies with the Home Office, previously administered by NASS, now carried out by UK Border Agency.
Three issues were identified in these cases: the precedent fact issue, the Art 6 issue and the Art 8 issue.
It was argued on behalf of A and M that the question of whether or not they were children involved establishing a fact precedent to the local authority’s exercise of its powers. As the local authority could not be the judge of the extent of its own powers, its decision could not be conclusive, but must be subject to investigation and decision by the courts.
As Lord Scarman said in R v Home Secretary ex p. Khawaja  1 AC 74 “where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied”.
In Ward LJ’s judgment this argument could not succeed. The question to be determined was not whether the applicant was a “child”, but whether they were a “child in need”. This transformed it into a subjective judgement, not an objective one.
This was split into five sub-issues (although 1 & 2 are hard to separate):
- Is there a right to accommodation?
- Is it a civil right?
- Has there been a determination of it?
- Were the social workers independent and impartial?
- Does judicial review constitute sufficient compliance?
Ward LJ stated straight away at  that he was happy that JR was sufficient compliance, as s. 204 appeals were in Runa Begum, but that he felt “obliged to be foolhardy and deal with the first three questions, happy in the knowledge that my meanderings can be treated as obiter if it is thought that I have gone wrong.”
Is there a right to accommodation?
All parties accepted that there was no doubt that there was duty to provide accommodation once it had been decided that an applicant was a child. There was an absolute right to accommodation where the subjective evaluative criteria are satisfied. The debate was whether A and M had any rights if the criteria are not satisfied and the claim for accommodation is rejected. Ward LJ agreed with the submission of John Howell QC (on behalf of the interveners Liberty):
The relevant right under section 20 is the right to accommodation. There are a number of conditions which have to be satisfied before the duty to provide it arises. But any dispute about whether one or more of those conditions is satisfied is one directly determinative of whether the relevant right exists.
In light of the doubts expressed about this finding, the whole of - are worth careful consideration.
Is there a civil right to accommodation?
Ward LJ considered what kind of accommodation a child was entitled to under s. 20. In his judgment “looking at the process as a whole, beginning with the assessment under section 20 but ending with the allocation under section 23, the decision-making process has the character of exercising a discretionary power which destroys the notion that a right is involved.” 
Ward LJ concluded at  that:
the right of accommodation given by section 20 read with section 23 cannot be classified as a civil right because:
(1) too much discretion is given to the local authority to decide what kind of accommodation is to be provided, and
(2) the accommodation can range from, at one extreme, a flat which the child is licensed to occupy – which does have the character of a private law right – to at the other end of the spectrum, the family home which smacks entirely of a social services public law provision.
Was there a determination of a civil right?
Clearly not, as there was no civil right, but assuming that there had been a civil right Ward LJ felt that there had not been a determination as there were so many other questions still to be resolved before the entitlement to accomodation arises (is the applicant in need, is the applicant within the LA’s area, do they appear to require accommodation, etc).
Were the social workers independent and impartial?
No – they were employed by the LAs and were therefore not independent, so Art 6(1) was breached.
Does the availability of JR comply with the requirements of Art 6?
As already noted above Ward LJ felt that it did. The present case was “indistinguishable in kind from Runa Begum and easily distinguishable from Tsfayo.” 
He concluded at  that:
age determinations, being part of broader questions relating to the provision of accommodation, and being but one of the many responsibilities for local authorities to provide support for children and families under Part III, are decisions which fall squarely within the social field of child care and are, therefore, customarily and properly entrusted to the social workers to decide. It follows that judicial review does comply with the standard set by Article 6.
Ward LJ was “comforted” by the similar conclusions in Ali v Birmingham.
The Art 8 issue, which was only raised on behalf of A, was whether the assessment of his age enaged his Art 8 rights to respect for his private life. While Ward LJ accepted at  that a decision as to whether someone was an adult or a child could be covered by Art 8 (as interpreted in Pretty v UK), the assessment in question was only a staging post on the way to the consideration of a broader question. It did not affect A’s physical or psychological integrity, his personal development or his personal autonomy.
Additionally, the procedural aspect of Art 8 could not add anything when Art 6 had not been breached. In this respect Ward LJ noted a correlation between Arts 6 and 8 in Gilboy.
Conclusion & Doubts
Ward LJ concluded that although the procedures did comply with Art 6 there was an urgent need for a better system.
Maurice Kay LJ and Sir John Chadwick expressed doubts as to whether Ward LJ was right that s. 20 provided a right to accommodation before the local authority had made their decision, but agreed that it was not necessary to decide this to determine the appeal.