A, R (on the application of) v London Borough of Croydon

Factual and Procedural Background

Two unaccompanied asylum-seeking young people (hereafter “Appellant 1” and “Appellant 2”) arrived in The Country and claimed asylum, asserting that they were under eighteen years of age. Immigration officers disputed their ages and referred each to separate children’s services authorities (“Local Authority A” and “Local Authority B”) for age assessments. Social workers in each authority concluded that the applicants were adults and therefore ineligible for accommodation under section 20(1) of the Children Act 1989. Each appellant obtained a paediatrician’s report indicating a younger age and commenced judicial review to challenge the authorities’ refusals to provide accommodation. Seven similar cases were joined, with these two treated as lead claims. Judge Bennett determined preliminary issues in favour of the local authorities, and the Court of Appeal affirmed. The present judgment considers the further appeals to the Supreme Court (formerly the House of Lords).

Legal Issues Presented

1. Whether, as a matter of statutory construction, the duty in section 20(1) of the Children Act 1989 is owed only to a person who appears to the local authority to be a child, or to any person who is in fact a child, so that the court may determine age on the balance of probabilities.
2. Whether the question “child or not” is a jurisdictional (precedent) fact that must be decided by a court rather than by the local authority, subject only to judicial review.
3. Whether section 20(1) engages a “civil right” for the purposes of Article 6(1) of the European Convention on Human Rights and, if so, whether the combination of social-worker decision making and conventional judicial review satisfies Article 6 requirements.

Arguments of the Parties

Appellants’ Arguments

• The statutory wording distinguishes between the objectively defined term “child” and the subjective judgment “appears to them,” indicating that age must be determined as an objective fact by a court.
• Legislative history shows Parliament deliberately removed earlier phrasing that limited duties to children who merely appeared to be under a certain age.
• The concept of a jurisdictional fact (as in Khawaja) requires courts to decide age disputes because the existence of “child” status triggers the statutory duty.
• Article 6 ECHR applies; social workers employed by an authority with financial interests cannot constitute an independent and impartial tribunal.

Respondent Local Authorities’ Arguments

• Section 20(1) references a “child in need,” a composite expression involving professional value judgments properly left to local authorities, subject to Wednesbury review.
• Case law (Shah, Puhlhofer, Wahid) demonstrates that public authorities decide factual questions underpinning statutory duties unless Parliament clearly provides otherwise.
• Judicialising every welfare decision would be impractical and contrary to legislative intent.

Secretary of State’s Arguments (Intervening)

• The Home Office relies on local authority assessments for immigration purposes; requiring court determination would impede efficient administration.
• The suitability of age-assessment procedures is a matter of policy improvement, not statutory construction.

Table of Precedents Cited

Court's Reasoning and Analysis

Statutory Construction. Judge Hale, delivering the lead opinion, held that Parliament intentionally distinguished between (i) the objective fact “child” and (ii) the evaluative judgment whether that child “appears to the authority to require accommodation.” Because section 105(1) defines “child” unqualifiedly as a person under eighteen, no words limiting the duty to those who appear to be children may be read into section 20(1).

Legislative History. Earlier statutes imposed duties only where a person appeared to be under the requisite age. The removal of that wording in the 1989 Act was treated as deliberate.

Comparative Provisions. Other Children Act powers (e.g. sections 46 and 25) apply coercively and would be unlawful if exercised on a mere reasonable belief: this reinforced the conclusion that “child” is a hard fact.

Administrative-Law Principles. The Court distinguished authorities such as Shah and Puhlhofer, noting that those cases turned on statutory language conferring fact-finding upon the authority (“if satisfied”). Section 20 contains no such wording.

Jurisdictional Fact Doctrine. While acknowledging its “ancient pedigree,” the Court did not rest its decision solely on that doctrine; the ordinary tools of statutory interpretation sufficed.

Practicality. Judicial review can accommodate factual inquiry when necessary (Wilkinson). High-quality initial assessments will limit litigation.

Article 6. Given the construction adopted, unresolved age disputes will be determined by a court, inherently satisfying Article 6. Nevertheless, the majority expressed the provisional view that even if Article 6 were engaged, existing processes (social-worker decision plus JR) would likely suffice, pointing to Runa Begum and distinguishing Tsfayo.

Holding and Implications

Holding: THE APPEALS WERE ALLOWED.

Where a live dispute exists about a claimant’s age, a court—not the local authority—must determine, on the balance of probabilities, whether the person is a “child” for the purposes of section 20(1) of the Children Act 1989. The matters were remitted for consequential relief and costs submissions.

Implications. Local authorities must treat “child” status as an objective fact open to judicial determination. While initial assessments remain within their remit, they carry no decisive authority if challenged. The ruling clarifies statutory interpretation but does not create a broader precedent requiring courts to decide all welfare-eligibility judgments; evaluative questions (e.g. “child in need”) remain subject to conventional judicial-review principles.