Judge can decide who is a "child", Supreme Court rules

The question of whether an applicant is a child for the purposes of accommodation and other services provided by local authorities is ultimately one that can be determined by the courts, the Supreme Court has ruled.

The two applicants in the case, A from Afghanistan and M from Libya, were asylum seekers who claimed they were under 18 but were assessed by the respondent local authorities as being adults.

Contesting the assessments, they argued that determination of their age was a matter for the courts.

Giving the lead judgment in R (on the application of A) v London Borough of Croydon and R (on the application of M) v London Borough of Lambeth [2009] UKSC 8, Lady Hale said the question of whether an applicant was 'a child' under the Children Act 1989 was different from whether he was 'a child in need'.

'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,' she said.

The result, she ruled, was that where the age of an applicant was in dispute, it would be a matter for the courts to establish.

'The word 'child' is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case),' she said. '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.'

However, she made it clear that such a decision rested with local authorities and that it was 'only if this remains disputed that the court may have to intervene'.

According to Lady Hale, judicial review proceedings remained the appropriate route for such challenges.

While not originally intended to consider disputed questions of fact, judicial review 'can be so adapted if the need arises', she said.

She also suggested that the ruling should encourage local authorities to improve their decision-making processes. 'The better the quality of the initial decision making, the less likely it is that the court will come to any different decision upon the evidence,' she said.

The other justices agreed with her judgment.