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Supreme Court rules that courts should determine who is a child, not local authorities

Date:27 NOV 2009

R (on the application of A) v London Borough of Croydon and one other; R (on the application of M) v London Borough of Lambeth and one other [2009] UKSC 8

The Supreme Court has unanimously decided that it is ultimately for the courts, not local authorities, to resolve whether a young person is or is not a child.

The judgment will be important to local authorities as regular disputes arise out of cases where people claim that they are a minor. Adults have an incentive to claim to be minors as local authorities owe more duties towards children in need than they do for adults in a similar situation.

The Court considered two individual cases, "A" and "M" both arrived alone in England and claimed asylum, stating that they were under eighteen. Each was referred to local authority social workers who assessed them as adults. They both challenged the resulting decisions of the local authorities that they were not entitled to accommodation.

The Supreme Court had to decide on two main issues:

Firstly, whether the duty on local authorities to provide accommodation and related services under the Children Act 1989 is owed only to a person who appears to the local authority to be a child so that the decision is ultimately for the authority to make, or whether it is owed to a person who is in fact a child so that the decision is ultimately for a court to make.

Secondly, whether the decision to provide accommodation is the determination of their "civil rights", so that the decision-making process has to comply with the requirements for a fair trial before an independent and impartial tribunal under Article 6 of the European Convention on Human Rights.

On the first issue, Lady Hale explained that the many references to "a child" throughout the 1989 Act must mean the same thing, that is, a person who is in fact a child. There was a right or a wrong answer to this question, difficult though it might be to decide it in some cases. It was a different type of question from whether the child was "in need" within the meaning of the Act, which involved a number of different value judgements suitable for expert assessment by social workers. She pointed out, however, that local authorities, or the UK borders agency in asylum cases, will still have to decide whether or not a person is a child in the first instance; it will only be if this remains disputed that the court may have to take the decision.

On the second issue, Lady Hale said that it was unnecessary, in light of her conclusion on the first issue, to reach any firm conclusions on the application of Article 6 of the Convention. She declined to decide whether a child's entitlement to accommodation under the 1989 Act was a "civil right", but commented that she would be most reluctant to hold that Article 6 required the judicialisation of claims to welfare services of this kind. Lords Scott, Walker and Neuberger agreed with her approach. While agreeing that it was unnecessary to reach any firm conclusions on the point, Lord Hope doubted whether the duty of local authorities to provide accommodation under the 1989 Act gave rise to a "civil right" within the meaning of Article 6 of the Convention.

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