KK (A Child), Re

Factual and Procedural Background

A young female of Ugandan ethnicity arrived in the U.K. from the Democratic Republic of Congo in December 2006, claiming to be a child under 18 years of age. The local authority, Company A, was directed under section 37 of the Children Act 1989 by a Family Division judge to investigate her circumstances, including her age and identity, following doubts raised about her status. The local authority concluded that the person was not a child and did not intend to take further action under the Act. The applicant disputed this and maintained her claim to be a child. The case involved complex factual disputes about her identity and age, including conflicting accounts from a man, Mr K, who claimed paternity and contested her stated age and identity. DNA testing disproved Mr K’s paternity, complicating the assessment of her status. The Family Division judge, Holman J, directed a fact-finding hearing to resolve whether the applicant was a child, which Company A appealed. The appeal concerned whether the court could and should conduct such a hearing after the local authority’s investigation and conclusion.

Legal Issues Presented

1. Whether, following a direction under section 37 of the Children Act 1989 for a local authority to investigate a person’s status as a child, and the local authority’s conclusion that the person is not a child, the court can direct a fact-finding hearing to determine the issue of age and identity.
2. Whether the local authority or the court is the proper arbiter of the question whether a person is a child within the meaning of section 37.
3. The extent and limits of the court’s jurisdiction to conduct a fact-finding hearing in family proceedings concerning disputed age and identity.
4. The appropriate procedural mechanism for challenging a local authority’s determination that a person is not a child.

Arguments of the Parties

Appellant's Arguments (Company A)

• By the date of the direction for a fact-finding hearing, no significant issue remained between the applicant and Mr K, and the main dispute was between the applicant and Company A.
• The applicant sought accommodation and support from Company A as a child and young adult under the Children Act.
• The court cannot compel Company A to accommodate the applicant or apply for a care order; the court’s powers are limited under the Act.
• The local authority’s duties and decisions regarding whether a person is a child are governed by section 37, and once Company A has reported that the person is not a child, their obligations end.
• The appropriate forum to challenge Company A’s determination that the applicant is not a child is by judicial review in the Administrative Court, not by a family court fact-finding hearing.
• Allowing a family court to conduct a fact-finding hearing on age would undermine the statutory scheme assigning age assessments to local authorities and risk misuse of family proceedings.

Respondent's Arguments (Applicant)

• The issue of whether the applicant is a child is a precedent fact for the exercise of powers under the Children Act and must be determined by the court.
• The direction for a fact-finding hearing was properly made under section 37, which confers jurisdiction on the court to investigate the welfare of a child in family proceedings.
• Judicial review is not the only or appropriate means to challenge the local authority’s age assessment once a direction under section 37 has been made.
• The court has jurisdiction to conduct a fact-finding hearing to resolve the disputed issues of age and identity within family proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (B) v Merton LBC [2003] 2 FLR 888	Judicial review as the proper forum to challenge local authority decisions on age assessments.	The court acknowledged this case as foundational for the principle that local authorities’ determinations on age are subject to judicial review, not family court fact-finding hearings.
R v SSHD, ex p. Khawaja [1984] AC 74	Where executive power depends on precedent fact, the court decides whether that fact is established.	The respondent relied on this precedent to support the proposition that the court must determine whether the applicant is a child before local authority functions under the Act apply.
R v Dyfed CC ex p. S [1995] 1 FCR 113	Questioning the applicability of the precedent fact doctrine in certain contexts.	The court noted doubts expressed about the applicability of Khawaja but found it unnecessary to rely on it in this case.
E v London Borough of X [2006] 1 FLR 730	Limits on the court’s supervisory role over local authority age assessments and the appropriateness of wardship proceedings for resolving age disputes.	The court agreed with the principle that family court proceedings should not be used to circumvent local authority age assessments unless exceptional circumstances apply.

Court's Reasoning and Analysis

The court began by identifying the statutory framework under section 37 of the Children Act 1989, which permits a court in family proceedings to direct a local authority to investigate a child's circumstances when a question arises about the child's welfare. The key threshold requirements for exercising this power are that there is a "child," that family proceedings exist, and that a welfare question arises regarding the child.

The court rejected the appellant’s submission that the local authority has the authority to determine whether a person is a child for the purposes of section 37. Instead, it held that the court itself must determine whether the threshold requirements, including the existence of a child, are satisfied before exercising its power under section 37.

Company A’s report, which concluded that the applicant was not a child, was characterized as a preliminary report that effectively endorsed a "NOT APPLICABLE" response to the section 37 direction. The court found this insufficient as a substantive response to the direction and held that the court which made the direction must now determine, on all the evidence, whether the applicant is a child.

The court recognized the tension between respecting the statutory role of local authorities in age assessments and the court’s residual jurisdiction to determine legal questions affecting the welfare of a child. It acknowledged the importance of the Administrative Court as the proper forum for challenging local authority decisions by judicial review but distinguished that from the court’s jurisdiction to conduct a fact-finding hearing in family proceedings once a section 37 direction has been made.

The court emphasized the need to guard against misuse of family proceedings as a device to bypass the statutory scheme and local authority functions. It held that the court must be satisfied that family proceedings are not a contrivance before making or maintaining a direction under section 37. If the proceedings are genuine, the court has discretion to make such a direction and to conduct a fact-finding hearing.

Applying these principles, the court upheld the direction made by Holman J for a fact-finding hearing to determine whether the applicant is a child, her age, and her identity. It found no error in the judge’s exercise of discretion and rejected the appeal.

Holding and Implications

The court DISMISSED THE APPEAL, affirming the Family Division judge’s direction for a fact-finding hearing to determine the applicant’s status as a child.

The decision clarifies that, in family proceedings under section 37 of the Children Act 1989, the court retains the jurisdiction to determine whether a person is a child and may order a fact-finding hearing to resolve disputed issues of age and identity, even where a local authority has conducted an investigation and concluded that the person is not a child.

This ruling underscores that local authorities cannot unilaterally determine the existence of a child for the purposes of section 37 and cannot preclude the court from exercising its jurisdiction. However, the court also emphasized caution to prevent family proceedings from being misused to circumvent the statutory scheme assigning local authorities the primary role in age assessments, thereby maintaining a balance between judicial oversight and administrative functions.

No new precedent beyond the clarification of the court’s jurisdiction under section 37 was established, and the ruling primarily affects the procedural approach in similar family law cases involving disputed age and identity.