R (M and another) v Lambeth London Borough Council and another
| Jurisdiction | England & Wales |
| Judge | LORD HOPE,LADY HALE,LORD SCOTT,LORD WALKER,LORD NEUBERGER |
| Judgment Date | 26 November 2009 |
| Neutral Citation | [2009] UKSC 8 |
| Date | 26 November 2009 |
| Court | Supreme Court |
and one other action
and one other action
[2009] UKSC 8
Lord Hope, Deputy President
Lord Scott
Lord Walker
Lady Hale
Lord Neuberger
Appellant (A)
John Howell QC Ian Wise
(Instructed by Harter and Loveless Solicitors)
Respondent (LB of Croydon)
Nigel Giffin QC
Bryan McGuire
Peggy Etiebet
(Instructed by Democratic and Legal Services Division)
Appellant (M)
Timothy Straker QC
Christopher Buttler
(Instructed by Bennett Wilkins Solicitors)
Respondent (LB of Lambeth)
Charles Bear QC
Jon Holbrook
(Instructed by Sternberg Reed)
Intervener (Secretary of State for the Home Department)
Nathalie Lieven QC
Deok Joo Rhee
(Instructed by Treasury Solicitors)
Intervener in writing (Children's Commissioner)
Richard Drabble QC
Ranjiv Khubber
(Instructed by The Children's Legal Centre)
So much depends upon how one frames the question. Put simply, when disputes arise about the age of some-one who is asking a local children's services authority to provide him with accommodation under section 20(1) of the Children Act 1989, who decides whether he is a child or not? Section 20(1) reads as follows:
"(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."
By section 105(1) of the Act, a "'child' means … a person under the age of eighteen".
The appellants, supported by the Children's Commissioner for England, say that, in cases of dispute, the court must decide whether a person is a child on the balance of probabilities. The respondent local authorities, supported by the Home Secretary, say that the authority must decide the matter, subject only to judicial review on the usual principles of fairness and rationality.
The importance of the issue
No doubt there have always been foundlings, abandoned or runaway children whose age was not immediately apparent to the authorities. But with many of these it will at least have been apparent that they were children. And sooner or later it will usually have been possible to establish their exact age by discovering their identity and obtaining a birth certificate. The problem of determining age has come to prominence with the recent increase in migration and particularly in unaccompanied young people coming to this country, some of them to claim asylum for their own benefit but some of them also having been trafficked here for the benefit of others. Although the focus of debate has been upon unaccompanied asylum seeking children, we must not lose sight of the other young people for whom the issue may also be important.
The importance comes from two directions. If a young person is a child, and otherwise meets the qualifying criteria, he must be provided with accommodation and maintenance under sections 20(1) and 23(1) of the 1989 Act. This brings with it a wider range of services than other forms of housing and benefit provision. These include the services for young people who leave social services accommodation which were described in R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535, paras 20 – 24. While once upon a time young people may have resisted the quasi-parental services provided for children in need, many now recognise that they bring distinct advantages over the housing and welfare benefits available to "home" claimants (as in R (M) v Hammersmith and Fulham London Borough Council, above, and R (G) v Lambeth London Borough Council [2009] UKHL 26, [2009] 1 WLR 1299) and the National Asylum Support Service ("NASS") support available to asylum seekers, as in the cases before us.
The Home Secretary also adopts different policies in relation to asylum seekers who are under eighteen. Legally, these may not be relevant to the issue which we have to determine, and in practice they are much more susceptible to change than is primary legislation such as the 1989 Act. But they are an important part of the factual background. Not only are unaccompanied asylum seeking children looked after by the local children's services authorities rather than by NASS while their claims are decided. Currently, if a claim is rejected when the child is under the age of seventeen and a half, the Home Secretary will not remove him for three years or until he reaches seventeen and a half, whichever is the earlier, unless there are adequate arrangements to look after him in his country of origin. Also, such children will not be detained under the Home Secretary's immigration powers, save in exceptional circumstances and then normally only overnight.
When a young person who says that he is a child arrives in this country or makes a claim for asylum, immigration officers make a preliminary determination based upon his physical appearance and demeanour. In a borderline case, the policy is to give him the benefit of the doubt and treat him as a child. Under the Secretary of State's 2007 Policy on Age Dispute cases, if his appearance or demeanour "very strongly" suggests that he is aged eighteen or over, the officer will dispute the age unless there is credible documentary or other evidence to show the age claimed. And if his appearance or demeanour "very strongly" suggest that he is "significantly" over eighteen then he will be treated as an adult. In the middle, age disputed, category, it is the policy to refer the case for assessment by the local social services authority and to accept that assessment if it is considered to have been properly carried out (in accordance with the procedural guidance given by Stanley Burnton J in R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin), [2003] 4 All ER 280).
This was the policy adopted by the Home Secretary in August 2007. But in February 2007 the Home Office published a consultation paper, Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children; and in January 2008, it published its conclusions and recommendations in Better Outcomes: The Way Forward, Improving the Care of Unaccompanied Asylum Seeking Children. Key Reform Number 4 was to put in place better procedures to assess age, in order to ensure that children and adults are not accommodated together. Both the Children's Commissioner and the Refugee Council have been critical of the present procedures, based partly upon their own experience and observations and partly upon research conducted by Professor Heaven Crawley for the Immigration Law Practitioners' Association.
As Ms Nathalie Lieven QC for the Home Secretary points out, the issue before us is not whether the policy and procedures for assessing age in these cases could be improved, but whether the law requires that, in cases which cannot be resolved through those processes, the court shall make the final determination. However, the one thing which these proposals do show is that the assessment of age can be and is carried out quite separately from the assessment of need and the other criteria for accommodation under section 20.
These two cases
A arrived in this country from Afghanistan on 13 November 2007 and claimed asylum the following day, stating that his date of birth was 8 April 1992 (making him then fifteen and a half). The immigration officer considered that he was eighteen and referred him to Croydon for an age assessment. He was interviewed by two social workers who assessed him as an adult. He was therefore referred to NASS. Soon afterwards his solicitors produced a copy of a birth certificate from Afghanistan showing his date of birth as 8 April 1992. They also arranged for him to be examined by a paediatrician, who reported that in her opinion he was aged between 15 and 17. A claim for judicial review of the decision that he was not entitled to accommodation under section 20 of the 1989 Act was made on 7 March 2008 and an interim order made against the authority until the determination of the claim.
M arrived in this country in November 2006 and claimed asylum three days later, saying that he was born on 15 December 1989 (making him then just under seventeen). His age was disputed and he was referred to Lambeth for an age assessment by two social workers who concluded that he was over eighteen. Once again, a paediatrician's report was obtained which concluded that he was indeed aged seventeen. Judicial review proceedings were brought and Lambeth reviewed its decision but provided further reasons for concluding that M was more than twenty years old. Meanwhile an immigration judge heard his appeal against the refusal of asylum and the Home Secretary's decision as to his age. The judge was not referred to the local authority's assessment and accepted the paediatrician's report. The Home Secretary therefore granted M discretionary leave to remain which has been extended pending the determination of his application for an extension of his leave.
These two and five other claims for judicial review were joined for the purpose of deciding a number of preliminary issues, with these two being treated as the lead cases. Those issues were (a) whether the local authorities' determinations were contrary to the procedural protections in article 6 and/or 8 of the European Convention on Human Rights; (b) whether the question of "child or not" for the purpose of section 20 of the 1989 Act was one of precedent fact for the court to determine on the balance of...
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