(Court of Appeal; Ward and Maurice Kay LJJ and Sir John Chadwick; 18 December 2008)
In each case the local authority had concluded that the applicant was over 18, and therefore not a 'child in need' for whom they had a duty to provide accommodation under Children Act 1989, s 20. In each case the asylum process had concluded that the applicant was under 18. The applicants sought judicial review of the authorities' decisions. The judge held that age determinations by the respective local authorities were not contrary to European Convention on Human Rights, Art 6(1), that Art 8 was not engaged, that the question whether an individual was a child for the purposes of ss 17 and 20 of the 1989 Act was not one of precedent fact that the court could review on a balance of probabilities, and that the authorities had lawfully departed from the decision by another body as to the applicant's age. The applicants appealed, arguing that the authorities' decisions had breached their human rights, in particular because the age determination had been carried out by local authority employees, not by an independent body, and that the issue of age in this context was one of precedent fact.
The determining question in the doctrine of precedent fact was the supposed intention of Parliament. In this case, Parliament must have intended the local authority to take all the relevant decisions. For s 20 to operate effectively social workers had to decide the age of the applicant. Child in need was a composite phrase, and being a child in need was not a limiting condition stated in wholly objective terms. The nature and process of the decision required the implication of words into s 20 so that it read 'Every local authority shall provide accommodation for any person whom the local authority have reasonable grounds for believing to be a child in need'. The provision of accommodation under s 20 could not be classified as a civil right, to which Art 6 applied. If it were to apply, judicial review would provide in any event an effective cure for any lack of impartiality on the part of the social workers concerned. There was no need for local authorities to contract out issues of age determination to independent experts; age determination in this context was not a simple question of fact but required a measure of professional knowledge or experience.