R (A) v Croydon LBC [2009] UKSC 8; [2009] 1 WLR 2557

Children, defined as individuals under 18, often require special care. Children in need may face challenges like disability or neglect, necessitating support from local authorities.

Age assessment is crucial for determining whether someone is a minor, particularly for asylum seekers. Under the Children Act 1989, local authorities are legally required to provide accommodation to any child in need.

Asylum seekers, including unaccompanied minors, may seek accommodation. Local authorities assess these applications with different provisions for children versus adults.

Decisions on accommodation often involve civil rights. Under the Human Rights Act 1998, individuals have the right to a fair hearing by an impartial tribunal.

The Children Act 1989 outlines the duty to support children in need, while the Human Rights Act 1998 ensures fair legal processes.

 A and M (“Claimants”) arrived in the UK from Afghanistan and Libya and claimed asylum, stating they were under 18. Immigration officers and social workers from the local authorities assessed them as over 18, denying them accommodation under section 20(1) of the Children Act 1989. 

Independent doctors later assessed their ages as 15 and 17, but the local authorities maintained their decisions. The claimants sought judicial review. 

The judge ruled that determining whether an individual was a child did not fall under the local authority's jurisdiction or violate Article 6 of the Human Rights Convention. The Court of Appeal upheld the judge's decision, leading to the Claimants' appeals.

The Appeals were allowed.

The court held that under section 20(1) of the Children Act 1989, Parliament intended for local authorities to determine if a child was "in need."

• However, the determination of whether a person is a child, based on the objective fact of age, was ultimately for the courts to decide.

• Since the Act was specifically for children, the question of whether a person was a child was a prerequisite for the exercise of a local authority's powers under the Act and, thus, a matter for the court.

The court concluded that while local authorities must initially make a determination, any dispute over this decision would be resolved by judicial review.

• This ensures that age determination, if disputed, would be decided by an independent and impartial tribunal.

• Therefore, the question of whether a local authority's powers under section 20(1) engage Article 6(1) of the Human Rights Act, requiring such a tribunal, did not need to be addressed.

• Consequently, if disputes remained about the claimants' ages, the court would resolve them based on available evidence.

Per Baroness Hale of Richmond JSC: If section 20(1) does create a "civil right," the decision-making processes and judicial review provide a fair determination as required by Article 6.

Per Lord Hope of Craighead DPSC, it is reasonably confident that a local authority's duty under section 20(1) does not constitute a "civil right" within the meaning of Article 6(1).

The decision of the Court of Appeal was reversed.

This case exemplifies the complicated relationship between child protection regulations and human rights principles in the context of asylum seekers.

The court's decision highlights that while local authorities play an important role in establishing a child's need for help under the Children Act of 1989, the final decision on age—and hence entitlement to services—rests with the courts.

• This method protects the rights of young asylum seekers by ensuring that disagreements over age assessments are treated fairly and impartially.

The involvement of an independent tribunal is consistent with Article 6 of the Human Rights Act of 1998, which ensures that individuals receive a fair hearing.

This case emphasizes the significance of proper age determination in preserving the rights and safeguards meant for children, particularly vulnerable unaccompanied minors.