Each had a wooden horse

R (A) v Croydon & R (M) v Lambeth UKSC [2009] 8

This was an appeal heard by the House of Lords over the course of four days in July, but with judgment delivered by the new Supreme Court.  We reported the Court of Appeal’s judgment here.  At issue was to what extent the courts could review the decision of a local authority that an individual is over the age of 18.  On one view this case turns on a narrow point about construction of the Children Act 1989 and does not really need a lengthy examination on a housing law blog.  I’m going to suggest that there is plenty of juicy stuff in here, albeit obiter, that is worthy of consideration.

The normal order of things is of course for young people to claim to be older than they really are.  Scores of cottage industries churning out fake IDs have depended on this pretty much since the dawn of time.  Claiming to be younger than one really is has long been the preserve of Hollywood actresses, supermodels and footballers of a certain nationality (allegedly).

However, there are certain benefits to being found to be under 18.  It opens the door to accommodation under the 1989 Act.  Someone over 18 is not capable of being a “child in need” under s.20(1) and cannot therefore be entitled to accommodation under that section.  There are other legal consequences that flow from this, see for instance the discussion in R (M) v Hammersmith & Fulham [2008] UKHL 14.

Everyday experience tells us that assessing someone’s age accurately is no easy task.  It will be clear that the decision in these cases is an important one to get right.  Quite apart from the resource implications, which are not insignificant, wrongly classifying a child as an adult, or vice versa, can lead to serious consequences for them.  In this regard it is probably better to exercise any element of doubt in favour of assessing someone as younger rather than older.  As an ILPA report has stated “the risks of wrongly treating children as adults are considerably higher than the other way round.  This is because the children’s system has in-built support and supervision to prevent children from being harmed.  No such safeguards exist in the adult system.”  This was endorsed by the Children’s Commissioner for England before the Court of Appeal in this case.

Facts

The facts of these cases can be very briefly stated.  The appellants arrived as unaccompanied asylum seekers.  They claimed to be under 18, but social workers decided that they were over the age of 18, despite there being some medical evidence in both cases to suggest that they were under 18.  In A’s case there was some documentary evidence too, while in the other an immigration judge had accepted that M was 17 years old.

Issues

There were three issues before the House of Lords, identified by Lady Hale at [13]:

  1. is the duty imposed by s.20(1) owed only to a person who appears to the local authority to be a child, so that their decision can only be challenged on Wednesbury principles, or is the duty owed to any person who in fact is a child, so that a court can determine the issue on the balance of probabilities?
  2. is the issue of whether someone is a child is one of precedent fact to be decided by a court on the balance of probabilities?
  3. does s.20(1) give rise to a civil right so that Art 6 of the ECHR is engaged and, if so, is the process whereby social workers assess age coupled with the availability of JR on Wednesbury principles sufficient compliance with Art 6?

Children Act 1989

It may be helpful to set out a few of the relevant provisions of the 1989 Act here.

Section 17(10):

For the purposes of this Part a child shall be taken to be in need if—
(a)   he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b)   his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c)  he is disabled,
and “family” , in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

For the purposes of this Part a child shall be taken to be in need if—

(a)   he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b)   his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c)  he is disabled,

and “family” , in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

Section 20(1):

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)  there being no person who has parental responsibility for him;

(b)  his being lost or having been abandoned; or

(c)  the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

Section 105(1):

In this Act—

… “child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen

Note that paragraph 16 of Schedule 1 does not apply in this case.

‘Child’ or ‘Child in Need’?

So ‘child’ is defined as “a person under the age of eighteen”.  This is the definition used throughout the Act.  As the appellants argued the definition was not:

[14] … “a person who appears to the local authority to be under the age of eighteen” or “a person whom the local authority or any other person making the initial decision reasonably believes to be under the age of eighteen”.  Reaching the conclusion that this is what it means in section 20(1) requires, as the Court of Appeal accepted, words to be read in section 20 which are not there.

The respondent LAs argued (see [20]) that “child in need” was a composite term of art that requires the sorts of professional value judgment that Parliament cannot have intended should be made by the courts.

Lady Hale gave the lead judgment, with which all members of the Court agreed.  In her opinion:

[26] … The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is “in need” requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and “Wednesbury reasonableness” there are no clear cut right or wrong answers.

[27] But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.

[28] …In section 20(1) a clear distinction is drawn between the question whether there is a “child in need within their area” and the question whether it appears to the local authority that the child requires accommodation for one of the listed reasons.  In section 17(10) a clear distinction is drawn between whether the person is a “child” and whether that child is to be “taken to be” in need within the meaning of the Act.

Lord Hope agreed at [51]:

The question is whether the person is, or is not, under the age of eighteen. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court.

This leads into whether or not the question is one of jurisdictional or precedent fact.  In the Court of Appeal Ward LJ thought this was not a precedent fact case because he viewed the question as whether a person was a “child in need”.  Lady Hale thought that this was looking at the wrong question:

[32] However, as already explained, the Act does draw a distinction between a “child” and a “child in need” and even does so in terms which suggest that they are two different kinds of question. The word “child” is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.

Lord Hope again agreed:

[53] … The question whether the child is “in need” is for the social worker to determine. But the question whether the person is or is not a child depends entirely upon the person’s age, which is an objective fact. The scheme of the Act shows that it was not Parliament’s intention to leave this matter to the judgment of the local authority.

Therefore, where there is a dispute, the courts can determine an applicant’s age on the balance of probabilities as part of judicial review proceedings.  JR can be adapted to deal with the determination of questions of fact, see R (Wilkinson) v Broadmoor Special Health Authority [2001] EWCA Civ 1545 (see in the present case Lady Hale at [33] and Lord Hope’s comments on the practical consequences at [54].

Article 6

Although this was enough to deal with the appeal both Lady Hale and Lord Hope went on to consider whether a civil right was being determined and therefore whether Article 6 was engaged.  Although this part of the opinions is strictly obiter, it is still very important and will presumably have an impact in other situations, so all of [35]-[45] and [55]-[65] are worth looking at.  It will become apparent that there was here a slight divergence of opinion on whether Art 6 applied.

Firstly, it will be remembered that in Runa Begum the House of Lords had assumed without deciding that a claim to be provided with accommodation under Part VII of the Housing Act 1996 could give rise to a civil right.  However, there is no Strasbourg case that has gone that far.  The appellants relied on a series of Russian cases (such as Teteriny v Russia and Sypchenko v Russia), which they claimed did establish this proposition.  Both Lady Hale and Lord Hope noted that there did not appear to be any argument on the point in the Russian cases and they did not assist the Court.

Lady Hale concluded at [40] that:

…[I]f a right such as this is a “civil right” at all, it must lie close to the boundary of the concept and not at the core of what it entails. If so, this may have consequences for the second question, which is what article 6 requires.

Lord Hope was prepared to go further.  I won’t break the whole thing down, but after considering the authorities at [55]-[64] he concluded that:

[65] …I think that it can now be asserted with reasonable confidence that the duty of the local authority under section 20(1) of the 1989 Act to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection does not give rise to a “civil right” within the meaning of article 6(1) of the Convention.

Given her conclusion Lady Hale went on to consider what Art 6 required, if it was engaged.  She said that:

[44] I would be most reluctant to accept, unless driven by Strasbourg authority to do so, that article 6 requires the judicialisation of claims to welfare services of this kind. Unlike the arguments based upon statutory construction and jurisdictional fact, Mr Howell’s [counsel for A] argument cannot sensibly distinguish between the determination of age and the determination of the other criteria of entitlement. Every decision about the provision of welfare services has resource implications for the public authority providing the service. Public authorities exist to serve the public. They do so by raising and spending public money. If the officers making the decisions cannot be regarded as impartial, and the problem cannot be cured by the ordinary processes of judicial review based upon the usual criteria of legality, fairness and reasonableness or rationality, then tribunals will have to be set up to determine the merits of claims to children’s services, adult social services, education services and many more. Resources which might be spent on the services themselves will be diverted to the decision-making process. Such a conclusion would be difficult, if not impossible, to reconcile with the decision of this House in Runa Begum. The degree of judicialisation required of an administrative decision, in the view of Lord Hoffmann in Alconbury, depends upon the “nature of the decision”.

[45] If this is a civil right at all, therefore, I would be inclined to hold that it rests at the periphery of such rights and that the present decision-making processes, coupled with judicial review on conventional grounds, are adequate to result in a fair determination within the meaning of article 6.

Lord Walker acknowledged the force of Lord Hope’s reasoning on Article 6, but preferred to leave the point open.  Lords Scott and Neuberger agreed with Lady Hale.

I think that this result must be right, it is the one that gives effect to what must have been the intention behind the Act.  Make no mistake though, this is going to leave the Admin Court with some difficult decisions to deal with.  If you doubt this then look back at the Guidelines for Paediatricians quoted at [5] in the CA’s judgment, or see the difficulties that Collins J identified at [15]-[32] in the connected case (reported by us here).

While at first blush I find the idea that this is not a civil right quite a difficult one to accept, I must admit that the argument is quite compelling.  This does seem to be the correct interpretation of the Strasbourg case law. It will be interesting to see whether this will affect the appeal in Ali v Birmingham which the Supreme Court finished hearing two days before this judgment was handed down.  In the CA Ward LJ had been comforted by the decision in Ali that JR did provide compliance with the standard required by Art 6.  Apparently both Lord Hope and Lady Hale heard the appeal in that case (it’s shown with Tomlinson as the lead case, but Tomlinson dropped out of proceedings at the CA stage).  Of course the present case was heard before judgment in Crompton v UK, but I’m not sure that that case takes the argument any further.

About chief

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.
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One Comment

  1. I have to confess that, not for the first time, I have difficulties with Lord Hope’s analysis.

    Surely, further to G v Southwark, the right to accommodation is an assertable right if the applicant has been found to be a child in need under s.20? Was not that the central point within G v Southwark?

    Surely, again taking G v Southwark into consideration, children in need under s.20 are also completely dependent “for survival” on the right to accommodation under s.20?

    If one reads the relevant paragraphs from Stec and Loiseau, quoted by Lord Hope at [62] and [63], and then re-reads G v Southwark I don’t know how you can end up where Lord Hope has.

    Hale’s analysis is much more preferable and, crucially, more sustainable in the long run.

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