COURT OF APPEAL
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE BENNETT
CO/2130/2007 and CO/2334/2008
Strand. London. WC2A 2LL
B e f o r e :
THE RT HON LORD JUSTICE MAURICE KAY
THE RT HON SIR JOHN CHADWICK
| The Queen on the application of A
|- and -
|London Borough of Croydon
|The Queen on the application of M
|London Borough of Lambeth
Mr Timothy Straker Q.C and Mr Christopher Buttler (instructed by Bennett Wilkins) for the appellant M
Mr Charles Bear Q.C. and Mr Jon Holbrook (instructed by Sternberg Reed) for the London Borough of Lambeth
Mr Bryan McGuire and Ms Peggy Etiebet (instructed by Croydon Legal) for London Borough of Croydon
Mr Daniel Stilitz and Ms Deok Joo Rhee (instructed by the Treasury Solicitor) Secretary of State for the Home Department
Mr John Howell Q.C. (instructed by Anna Fairclough) for Liberty
Hearing dates: 17, 18 and 19 September 2008
Crown Copyright ©
Lord Justice Ward:
"i) Were the age determinations of each claimant by the respective local authorities contrary to section 6 of the Human Rights Act 1998 in that they were contrary to the procedural protections of Article 6 and/or Article 8 of the European Convention on Human Rights?
ii) Is the question whether an individual is a child for the purposes of section 17 and 20 of the Children Act 1989 one of precedent fact, which the court may review on the balance of probabilities?
iii) Was the departure of the London Borough of Lambeth from the decision of the AIT and the Secretary of State on M's age lawful?"
On 20th June 2007 Bennett J held in answer to the first question that the age determinations by the respective local authorities were not contrary to Article 6(1) and that, in respect of Article 8, which A alone sought to invoke, his age determination was not a "private right" and thus Article 8 was not engaged. He answered "No" to the second question and "Yes" to the third. He gave permission to appeal on the first two issues. There is no appeal in respect of the third.
A little more detail
"In practice, age determination is extremely difficult to do with certainty, and no single approach to this can be relied on. Moreover, for young people aged 15-18, it is even less possible to be certain about age. There may also be difficulties in determining whether a young person who might be as old as 23 could, in fact, be under the age of 18. Age determination is an inexact science and the margin of error can sometimes be as much as five years either side. . . . Overall, it is not possible to actually predict the age of an individual from any anthropometric measure, and this should not be attempted. Any assessments that are made should also take into account relevant factors from the child's medical, family and social history."
The difficulties will be compounded when the young person in question is of an ethnicity, culture, education, background and dietary regime that are foreign and unfamiliar to the decision maker. In R (on the application of B) v Merton London Borough Council  EWHC 1689 (Admin),  4 All ER 280, Stanley Burnton J. held when dismissing a claim for the judicial review of an age assessment:
"36. The assessment of age in borderline cases is a difficult matter, but it is not complex. It is not an issue which requires anything approaching a trial, and the judicialisation of the process is in my judgment to be avoided. It is a matter which may be determined informally, provided safeguards of minimum standards of inquiry and of fairness are adhered to.
50. In my judgment, the court should be careful not to impose unrealistic and unnecessary burdens on those required to make decisions such as that under consideration. Judicialisation of what are relatively straightforward decisions is to be avoided. As I have stated, in such cases the subject matter of decision is not complex, although in marginal cases the decision may be a difficult one. Cases will vary from those in which the answer is obvious to those in which it is far from being so, and the level of inquiry unnecessary in one type of case will be necessary in another. The Court should not be predisposed to assume that the decision maker has acted unreasonably or carelessly or unfairly: to the contrary, it is for a claimant to establish that the decision maker has so acted."
"5.1 We will improve the system for assessing the age of those claiming to be unaccompanied asylum seeking children. Failing to detect those who lie about their age has serious consequences. As well as representing a serious abuse of the asylum system, it leads to adults being inappropriately accommodated with children and vice versa, with all the associated child protection risks that we are determined to minimise.
5.2 We agree with many respondents to the consultation exercise that the process of assessing age should take place in regional centres set up for that purpose. The location of these centres will be negotiated with local authorities and other stakeholders, though it seems sensible to place the majority near to our main ports and asylum screening units where the young people first come to attention - building on the arrangements we have already put in place to fund social worker teams in these areas. In that way issues about a person's age can be settled before transfer to a specialist local authority that will provide longer term care. . . .
5.3. By ensuring age assessments are carried out in specialist regional centres there will be a more consistent approach. Consistency will be further enhanced by ensuring that the social workers in these centres undertake assessments according to clear written guidance. We will consult further with the key stakeholders about what this updated guidance should contain. It will need to cover matters such as the weight that should be attached to reports from Paediatricians and other medical reports commissioned by solicitors acting for the young people. There is presently a lack of consensus among stakeholders about the merits of x-rays as a means of accurately assessing age. There is a need to consider this further. We will, therefore, set up a working group with key stakeholders, including medical practitioners, to carry out a thorough review of all age assessment procedures with a view to establishing best practice."
"21. I have endorsed the proposal for separate specialist age assessment centres so that there is some measure of independence between the decision maker determining age of the unaccompanied child and the Authority with the ongoing duty to care for the child and their needs. This independence plainly does not exist now."
"32. Age assessment is a process that concerns far more than a scheme for administering welfare benefits. It is a determination that has profound effects for the individual and their relationship with the state and the community. It impacts upon them in a fundamental and far-reaching way. It cannot be sensibly and fairly characterised simply as a determination about whether the applicant is entitled to support and assistance under the Children Act if assessed as a child or other support if assessed as an adult. The assessment provides for applicants assessed as children to be accorded a particular status, for their rights and interests to be safeguarded, for those under 16 to be entitled to education and for those over 16 to have access to education as well as to be provided with accommodation and economic and social support."
He analysed the consequences of being treated as a child by a local authority and concluded:
"38. I trust this recitation makes clear that age determinations by Local Authorities involve important status and rights issues going significantly beyond matters relating to welfare benefits. The assessment impacts upon all aspects of the asylum process beyond the arrangements made for care, support and accommodation and directly affects and determines the nature of the procedure for the substantive determination of the claim for protection and in particular whether the individual will be subject to detention, fast tracking or removal during their minority. In the light of these matters I would certainly endorse the comments of the ILPA report that "the risks of wrongly treating children as adults are considerably higher than the other way round. This is because the children's system has inbuilt support and supervision to prevent children from being harmed. No such safeguards exist in the adult system"."
Finally he said:
"46. I am strongly of the view that the present processes do not meet the necessary and appropriate standards of fairness to give effect to the best interest principle."
Bennett J's judgment
(1) The duty to "provide accommodation" under section 20(1) of the Children Act 1989 arises when, and only when, the local authority arrives at a decision that the young person is (i) a child in need, (ii) in the area, (iii) who requires accommodation, (iv) as a result of one of the triggers in (a), (b) or (c) of subsection 1 and, (v) having considered the matters set out in subsections (6), (7), (8) and (9). See the judgment at ,  and .
(2) Once these matters are satisfied, an absolute duty to provide accommodation arises: ().
(3) Section 20 does not create a civil right within the meaning of Article 6 because there are a considerable number of evaluative judgments vested in the local authority: ().
(4) The determination about age is not a determination of civil right because the civil right must encompass all the matters in section 20. The age determination was but a staging post. It would be absurd if one part of section 20(1) was subject to Article 6(1) and the other parts not. Over-judicialisation and what the judge termed "oppressive legalism" should be avoided. Consequently he did not think Article 6(1) was engaged: (,  and ).
(5) A local authority's social workers are not independent but they are impartial in respect of the question of entitlement to section 20 accommodation ().
(6) If Article 6 were engaged, the availability of ordinary judicial review grounds would render the process Article 6 compliant: ().
(7) The age dispute assessment cannot by itself be said to engage a right to private life under Article 8. If Article 8 is to be engaged it has to be engaged looking at section 20 as a whole and not just at one part of the process: ().
(8) Parliament intended that local authorities should evaluate an individual's age, so that the question is not precedent to the local authority's jurisdiction arising: (, ).
The Children Act 1989 ("the Act")
"8. An essential part of clarification is to rationalise and where possible simplify existing legislation. The powers and duties of local authorities to support families with children come from two main streams of law, health and welfare legislation and child care legislation. These were not integrated when local authority social services departments were formed in 1970 from the former welfare and children's departments."
The Act was, therefore, as the long title proudly proclaims, "an Act to reform the law relating to children; to provide for local authority services for children in need and others; . . ." Since, as I shall later show, questions of construction arise both in respect of the consideration of the child's civil rights, if any, as well as questions of precedent fact, I must set out the material parts of the Act at some length.
"17. Provision of services for children in need, their families and others.
(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) —
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.
(10) For the purposes of this Part, a child shall be taken to be in need if—
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled,
and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
(11) For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part—
"development" means physical, intellectual, emotional, social or behavioural development; and "health" means physical or mental health.
18. Day care for pre-school and other children -
(1) Every local authority shall provide such day care for children in need within their area who are—
(a) aged five or under; and
(b) not yet attending schools, as is appropriate.
20 Provision of Accommodation for Children: general -
(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.
(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.
(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.
(5) A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.
(6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—
(a) ascertain the child's wishes and feelings regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
(7) A local authority may not provide accommodation under this section for any child if any person who—
(a) has parental responsibility for him; and
(b) is willing and able to—
(i) provide accommodation for him; or (ii) arrange for accommodation to be provided for him, objects.
(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
(9) Subsections (7) and (8) do not apply while any person—
(a) in whose favour a residence order is in force with respect to the child;
(aa) who is a special guardian of the child; or
(b) who has care of the child by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children, agrees to the child being looked after in accommodation provided by or on behalf of the local authority.
(10) Where there is more than one such person as is mentioned in subsection (9), all of them must agree.
(11) Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section.
21 Provision of accommodation for children in police protection or detention or on remand, etc -
(1) Every local authority shall make provision for the reception and accommodation of children who are removed or kept away from home under Part V.
(2) Every local authority shall receive, and provide accommodation for, children -
(a) in police protection whom they are requested to receive under section 46(3)(f) . . .
22 General duty of local authority in relation to children looked after by them -
(1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is —
(a) in their care; or
(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B.
(3) It shall be the duty of a local authority looking after any child —
(a) to safeguard and promote his welfare; and
(b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case. . . .
23 Provision of accommodation and maintenance by local authority for children whom they are looking after -
(1) It shall be the duty of any local authority looking after a child —
(a) when he is in their care, to provide accommodation for him; and
(b) to maintain him in other respects apart from providing accommodation for him.
(2) A local authority shall provide accommodation and maintenance for any child whom they are looking after by—
(a) placing him (subject to subsection (5) and any regulations made by the Secretary of State) with—
(i) a family;
(ii) a relative of his; or
(iii) any other suitable person, on such terms as to payment by the authority and otherwise as the authority may determine (subject to section 49 of the Children Act 2004); (aa) maintaining him in an appropriate children's home; or . . . (f) making such other arrangements as—
(i) seem appropriate to them; and
(ii) comply with any regulations made by the Secretary of State.
(3) Any person with whom a child has been placed under subsection (2)(a) is referred to in this Act as a local authority foster parent unless he falls within subsection (4).
(4) A person falls within this subsection if he is—
(a) a parent of the child;
(b) a person who is not a parent of the child but who has parental responsibility for him; or
(c) where the child is in care and there was a residence order in force with respect to him immediately before the care order was made, a person in whose favour the residence order was made. . . .
(6) . . . any local authority looking after a child shall make arrangements to enable him to live with -
(a) a person falling within subsection (4)
(b) a relative, friend or other person connected with him,
unless that would not be reasonably practicable or consistent with his welfare."
"Identification of children in need and provision of information
1(1) Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area.
Children's services plans
1A (1) Every local authority shall . . .
(a) review their provision of services under sections 17, 20. . .
Provision for disabled children
6. Every local authority shall provide services designed - (a) to minimise the effect on disabled children . . . of their disabilities
Provision to reduce need for care proceedings etc.
7. Every local authority shall take reasonable steps designed -(a) to reduce the need to bring -
(i) proceedings for care . . . orders . . .
9. Every local authority shall provide such family centres as they consider appropriate in relation to children within their area.
Maintenance of the family home
10. Every local authority shall take such steps as are reasonably practicable . . .
(a) to enable him to live with his family . . ."
"For the purposes of this Act the social services functions of a local authority are -
(a) their functions under the enactments specified in the first column of Schedule 1 to this Act (being the functions which are described in general terms in the second column of that Act). . ."
Included among those functions are the functions under the whole of the Children Act 1989 in so far as it confers functions on the local authority within the meaning of that Act and in particular the "Functions under Part 3 of the Act (local authority support for children and families)."
"Powers of court in certain family proceedings -
(1) In any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child's circumstances. . . ."
"Removal and accommodation of children by police in cases of emergency -
(1) Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may—
(a) remove the child to suitable accommodation and keep him there; . . .
(2) For the purposes of this Act, a child with respect to whom a constable has exercised his powers under this section is referred to as having been taken into police protection.
(3) As soon as is reasonably practicable after taking a child into police protection, the constable concerned shall—
(a). . .
(f) where the child was taken into police protection by being removed to accommodation which is not provided—
(i) by or on behalf of a local authority; or
(ii) as a refuge, in compliance with the requirements of section 51,
secure that he is moved to accommodation which is so provided. . . .
The issues arising in this appeal
(1) The precedent fact issue:
Do the questions (i) whether the applicant for accommodation under section 20 of the Act is or is not a child, and (ii) whether he is or is not within the local authority's area, involve establishing jurisdictional facts or, to use another phrase, facts precedent to the exercise of the local authority's powers in which case the local authority's decision cannot be conclusive because the local authority cannot be allowed to be the judge of the extent of its own powers. If so, the court must retain the power to investigate and decide those facts for itself.
(2) The Article 6 ECHR issue
This requires answers to these questions:
(i) Does section 20 provide a right to accommodation? (ii) If so, is it a "civil right"?
(iii) If so, has there been a determination of that civil right?
(iv) Were the social workers who decided the questions of the appellants' ages independent and impartial?
(v) If not and Article 6 is engaged, does the availability of judicial review constitute sufficient compliance with Article 6?
(3) The Article 8 ECHR issue
Are A's rights to respect for his private life engaged in the assessment of his age?
The precedent fact issue
"Now it is a general rule, that no Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case on which the limit to its jurisdiction depends; and however its decision may be final on all particulars, making up together that subject-matter which, if true, is within its jurisdiction, and, however necessary in many cases it may be for it to make a preliminary inquiry, whether some collateral matter be or be not within the limits, yet, upon this preliminary question, its decision must always be open to inquiry in the superior Court."
". . . if a certain state of facts has to exist before an inferior tribunal have jurisdiction, they can inquire into the facts in order to decide whether or not they have jurisdiction, but cannot give themselves jurisdiction by a wrong decision upon them; and this court may, by means of proceedings for certiorari, inquire into the corrects of the decision. The decision as to these facts is regarded as collateral because, though the existence of jurisdiction depends on it, it is not the main question which the tribunal have to decide."
"The second general issue relates to the function of the courts and of this House in its judicial capacity when dealing with applications for judicial review in cases of this sort; is their function limited to deciding whether there was evidence on which the immigration officer or other appropriate official in the Home Office could reasonably come to his decision (provided he acted fairly and not in breach of the rules of natural justice), or does it extend to deciding whether the decision was justified and in accordance with the evidence? On this question I agree with my noble and learned friends, Lord Bridge and Lord Scarman, that an immigration officer is only entitled to order the detention and removal of a person who has entered the country by virtue of an ex facie valid permission if the person is an illegal entrant. That is a 'precedent fact' which has to be established. It is not enough that the immigration officer reasonably believes him to be an illegal entrant if the evidence does not justify his belief. Accordingly, the duty of the court must go beyond inquiring only whether he had reasonable grounds for his belief."
Lord Scarman's concise statement of the rule was this at p. 110:
". . . where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied."
"As a general rule, limiting conditions stated in objective terms will be treated as jurisdictional, so that the court will consider any admissible evidence of their non-fulfilment."
So Mr Straker asks, does the statutory language set out the fact in objective or subjective terms, in other words, does the statute require the very existence of the fact to be established or does it require that the decision maker be of the opinion that the fact exists? Another way of testing it is to ask when the fact is in issue whether there is only one answer to it, right or wrong, in which case the factual matter is objective, or whether there are a range of reasonable conclusions about the fact, in which case it is subjective.
"Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of 17 . . ."
Examples of this kind show that where Parliament wishes to emphasise who can take the decision about age, Parliament is clearly able so to provide but did not choose to do so in section 20. Mr Wise submits that far from it being implicit that it is for the local authority to determine age, a true reading of the Act shows that it is simply assumed that the young person is a child and so age must be a precedent fact for the court to determine.
"But if, on the true construction of the Act, Parliament only imposes the duty in respect of applicants of sufficient mental capacity to act upon the offer of accommodation then it seems to me it must have intended the local housing authority to evaluate the capacity of the applicant. In this field of social welfare all those concerned with the welfare of the victims must necessarily work closely together. When an application is made by or on behalf of a homeless person an immediate investigation must be started and if it is decided that the homeless person is so disabled as to be incapable of looking after himself and there is no one to care for him then the social services must be alerted immediately so that they may look after him. All these very immediate investigations and decisions are necessary to make the system work and they can only be carried out by the authorities concerned.'" (Emphasis added by me).
The same considerations apply here.
" Apart from the need for it to appear to the court to be appropriate for a care order to be made, the terms of s.37 set three threshold requirements for the exercise of the power which it confers, namely that:
(a) there is a 'child';
(b) there are family proceedings; and
(c) a question arises therein with respect to her welfare.
A local authority are entitled to submit to the court that there is no 'child'; or that there are no 'family proceedings'; or even, I suppose, that no question arises therein with respect to the child's welfare; and thus that, by reason of any of such three alleged circumstances, there is no power to make - or on a presumptive basis to have made - the direction. But I am unable to subscribe to any such construction of the section as confers upon a local authority the right to determine whether such circumstances exist. The reference in the section is to a 'child', not to any person whom the local authority consider to be a child. Unless its terms make clear to the contrary, it is for the court to determine whether the threshold requirements set by statute for the exercise of a judicial power are satisfied."
Wilson L.J. also held that there was no need to draw upon the doctrine of precedent fact:
" . . . For, where a direction has been made under s.37, the fact, if it be the case, that the applicant is a child is precedent not just to a local authority's discharge of functions under the Act but, more relevantly, to their performance of a duty to the court, namely to respond substantively to the direction."
" The bottom line, however, is that local authorities cannot be the arbiters of whether courts have jurisdiction to make directions to them."
By contrast, for section 20 to operate effectively, it is the social workers who decide the age of the applicant. The nature and process of the decision requires the implication of words into section 20 so that it reads: "Every local authority shall provide accommodation for any person whom the local authority have reasonable grounds for believing to be a child in need . . ." as was held to be inevitable in Reg. v Secretary of State for the Home Department Ex parte Zamir  AC 930.
"Every local authority shall provide accommodation for any child . . . who appears to them to require accommodation . . ."
So the section could easily have read:
". . . shall provide accommodation for anyone who appears to them to be a child in need . . . and to require accommodation".
Despite the failure to spell out the obvious, I am satisfied that the scheme of the Act compels that conclusion. In contrast with Parts 2 and 4 which involve decisions being made by the court, Part 3 is concerned with administrative functions of the local authority. In section 22 a child who is looked after by a local authority is defined as a child who is "provided with accommodation by the authority in the exercise of any functions which are social services functions within the meaning of the Local Authority Social Services Act 1970". As set out in paragraph 15 above, all local authority support for children is such a function. As Sir Stephen Brown P. said in Hazell v Hammersmith and Fulham LBC  2 Q.B. 697, and approved by the House of Lords in the same case,  2 A.C. 1, 29 F:
"The word 'functions' . . . is used in a broad sense and is apt to embrace all the duties and powers of a local authority: the sum total of the activities Parliament has entrusted to it. Those activities are its functions."
The only person able to carry out local authority functions is the local authority. Parliament must have intended the local authority to take all the relevant decisions. Parliament has given them the power to take the decisions and has not circumscribed the exercise of those powers. There is no limit to the exercise of the power other than, obviously, the inability to decide any other questions than those which are given to them to decide. That, in my judgment, is conclusive of this precedent fact issue.
" . . . While the 1989 Act does not expressly so provide, it is inherent in its structure and content that a local authority, in any case where doubts are raised in respect of the age of a putative child in need of care and protection, should make an age assessment and, according to its results, decide whether to take measures in respect of the 'child' under the provisions of the 1989 Act. It is thus an area in which . . . the court must be careful to avoid assuming a supervisory role or reviewing power over the merits of the local authority's decision."
"57. It is also important to keep separate the roles of the courts and the local authorities in the protection of children from harm. Where a local authority have reasonable cause to suspect that a child in their area is suffering or likely to suffer significant harm, they must make the inquiries necessary to enable them to decide whether they should take any action to protect the child and if so what (1989 Act, s 47(1))."
The remark was obviously obiter but it confirms that Part 3 is for the local authority and Part 4 for the court. Since Baroness Hale had, as I have already described, a modest part to play in the passage of the Children Act 1989, what she says about the way the Children Act operates can hardly be taken with a pinch of salt.
The Article 6 issues
"In the determination of his civil rights and obligations everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law."
In the way the argument has been presented to us, the questions arising in this appeal are (1) is there a right to accommodation; (2) is it a civil right; (3) has there been a determination of it; (4) were the social workers independent and impartial; and (5) does judicial review constitute sufficient compliance? Although (1) and (2) have been argued as discrete issues (and I shall deal with them as such), they are very closely linked and I may have been better to have treated it as a composite matter.
Do the appellants have any right under section 20?
"(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 . . . from providing him with suitable accommodation or care."
". . . In this connection, in deciding whether a 'right', civil or otherwise, could arguably be said to be recognised by Netherlands law, the Court must have regard to the wording of the relevant legal provisions and to the way in which these provisions are interpreted by the domestic courts.
50. Sections 591(1) and 591a(l) CCP provide that in given circumstances various specified expenses 'shall' be refunded to a former suspect. A duty is thereby imposed on the State to reimburse the sums involved if the applicable conditions are met, and consequently the former suspect is granted a right. . . .
51. On the other hand, sections 89(1) and 591a(2) lay down that the competent court 'may' award the former suspect compensation for certain damage not covered by sections 591(1) and 591a(l). In contrast to these latter provisions, sections 89(1) and 591a(2) do not require the competent court to hold the State liable to pay even if the conditions set out therein are met. Moreover, section 90(1) CCP makes the award of compensation contingent on the competent court being of the opinion 'that reasons in equity' exist therefore . . . The grant to a public authority of such a measure of discretion indicates that no actual right is recognised in law."
"33 It is common ground that this [section 20(1)] imposes on every local authority an absolute duty to provide accommodation for any child in need where one of the specified circumstances exists. It is a precise and specific duty. There is no scope for discretion as to whether or not to provide accommodation at all."
"59. Once all of these [skilled, evaluative assessments or judgments] are completed and the requirements of section 20(1) and other relevant subsections are fulfilled then an absolute duty does indeed arise."
"45. . . . Where the [subjective evaluative] criteria are satisfied, there is an absolute right to accommodation."
"The relevant right under section 20 is the right to accommodation. There are a number of conditions which have to be satisfied before the duty to provide it arises. But any dispute about whether one or more of those conditions is satisfied is one directly determinative of whether the relevant right exists."
"74. . . . Apart from authority, I would have said that a decision as to what the public interest requires is not a 'determination' of civil rights and obligations. It may affect civil rights and obligations but it is not, and ought not to be, a judicial act such as article 6 has in contemplation. The reason is not simply that it involves the exercise of a discretion, taking many factors into account, which does not give any person affected by the decision the right to any particular outcome. There are many such decisions made by courts (especially in family law) of which the same can be said. Such decisions may nevertheless be determinations of an individual's civil rights (such as access to his child: compare W v United Kingdom (1988) 10 EHRR 29 ) and should be made by independent and impartial tribunals", with the emphasis added by me.
"The Court thus concludes that, it can be said, at least on arguable grounds, that even after the adoption of the parental rights resolution affecting him the applicant could claim a right in regard to his access to S."
He had that right even though it had not been determined whether access would indeed be afforded to him: indeed on the facts of the case he was denied access.
"87. In the instant case, subject to the possibility of its being revoked, the licence conferred a 'right' on the applicant bank in the form of an authorisation to enter certain categories of banking transactions in accordance with the conditions set out in the licence and the relevant provisions of domestic law. On the other hand, under the applicable law, the BNB was required to revoke the licence in the event of insolvency, which then results in a winding-up order. It has no discretion in this respect . . . Bearing the circumstances in mind, the Court considers that the applicant bank could maintain on arguable grounds that it was allowed to continue to operate as a going concern unless it was indeed insolvent. Its principal contention was that it was solvent, so that there was a genuine and serious dispute over the existence of that right. . ." (Emphasis added by me.)
"83. With regard to the issue of whether the right to compensation from the Foundation on account of Nazi persecution was recognised, at least on arguable grounds, under domestic law, the Court notes that the relevant Foundation's regulations define the conditions and procedures with which a claimant had to comply before compensation can be awarded by the Foundation. Those regulations, regardless of their characterisation under domestic law, could be considered to create a right for a victim of Nazi persecution to claim compensation from the Foundation. Accordingly, if a claimant complied with the eligibility conditions stipulated in those regulations, he had a right to be awarded compensation by the Foundation . . . Thus, it cannot be said that the relevant Foundation's regulations gave rise to an ex gratia compensation claim.
84. The Court considers that the applicant could claim, at least on arguable grounds, the right to receive compensation from the Foundation in respect of the overall period of his forced labour", [again my emphasis].
Do the appellants have a civil right to accommodation?
"(f) Making such other arrangements as -
(i) seem appropriate to them."
That could include arranging for some independent living by finding and paying for his occupation of a flat or by arranging hostel accommodation or a bed and breakfast hotel.
"26. However, Article 6 does not apply to the exercise by public authorities of their discretion, as distinguished from their compliance with their obligations owed to citizens. Obligations give rise to rights; discretionary payments and discretionary support do not. . . .
27. . . . A right by definition is something to which the citizen is entitled, to which he has an enforceable claim. A discretionary benefit, one that a government may give or refuse as it wishes, cannot be the subject of a right.
28. The line between a discretionary benefit and one to which the citizen may be entitled may not be an easy one. In England, court orders for costs, equitable relief and remedies on judicial review are all said to be discretionary, but the decisions relating to them are made by courts of law on well-established principles, and are unquestionably judicial decisions. A successful litigant in civil proceedings against an unassisted opponent may claim to have a 'right' to an award of his legal costs, notwithstanding the discretionary nature of the court's power."
He held that the provision of support for asylum seekers was a civil right.
". . . despite the public law features pointed out by the Government, Mrs Salesi was not affected in her relations with the administrative authorities as such, acting in the exercise of discretionary powers; she suffered an interference with her means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in a statute giving effect to the Constitution."
"to cover a wide range of administrative decision-making on the ground that the decision determines or decisively affects rights or obligations in private law. . . . More recently the scope of article 6 has also been extended to public law rights, such as entitlement to social security or welfare benefits under publicly funded statutory schemes, on the ground that they closely resemble rights in private law: Salesi v Italy . . ."
"Upon the question whether Art. 6 applies at all, in our judgment this case and others like it systematically engage the civil rights of the affected individual. They do so on a very simple basis: they are concerned with the question, what premises he will occupy as his home and upon what terms; and although for all we know a person in Mr Beeson's position may well stand to be granted no more than a bare licence of premises which may be offered him, still the issue whether or not he may get such an entitlement affects his rights in private law."
(1) too much discretion is given to the local authority to decide what kind of accommodation is to be provided, and
(2) the accommodation can range from, at one extreme, a flat which the child is licensed to occupy - which does have the character of a private law right - to at the other end of the spectrum, the family home which smacks entirely of a social services public law provision.
Assuming there were a civil right, was there a determination of it?
The fourth issue: were the social workers independent and impartial?
The fifth issue: assuming Article 6(1) to be engaged does the availability of judicial review constitute sufficient compliance with its requirements?
"in assessing the sufficiency of the review . . . it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal."
I will begin with the manner in which the decision was arrived at.
The degree of a lack of independence and impartiality
". . . in deciding whether the court has full jurisdiction on a judicial review, it is relevant to have regard to the nature of the breach in the first stage of the process. The more serious the failure to accord a hearing by an independent and impartial tribunal, the more likely it is that a breach in the first stage of the process cannot be cured at the second stage. . . . Thus, where the lack of impartiality at the first stage was of a somewhat formal and technical nature the breach of article 6 was taken to be cured by the availability of judicial review. But if the lack of impartiality at the first stage had real practical content, then it infected the whole process and could not be cured by judicial review."
"62. In my judgment, the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of an inspector [the planning inspector in Alconbury] and a Review Board. The lack of independence [of the councillors] may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court. One of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute, is that the extent to which a judgment of fact may be infected cannot easily be, if at all, discerned. The influence of the connection may not be apparent from the terms of the decision which sets out the primary fact and the inferences drawn from those facts. . . .
64. Thus it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear, cogent and supported by the evidence. This court cannot cure the often imperceptible effects of the influence of the connection between the factfinding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence."
". . . in contrast to the previous domestic and Strasbourg cases referred to above, the HBRB was not merely lacking in independence from the executive, but was directly connected to one of the parties to the dispute, since it included five councillors from the local authority which would be required to pay the benefit if awarded. As Mr Justice Moses observed in Bewry (para ) above), this connection of the councillors to the party resisting entitlement to housing benefit might infect the independence of judgment in relation to the finding of primary fact in a manner which could not be adequately scrutinised or rectified by judicial review."
"1. As a social care worker you must protect the rights and promote the interests of service users and carers.
2. As a social care worker, you must strive to establish and maintain the trust and confidence of service users and carers.
2.1 being honest and trustworthy;
2.4 being reliable and dependable;
2.6 declaring issues which might create conflicts of interest and making sure that they do not influence your judgment or practice;
5. As a social worker you must uphold public trust and confidence in social care services.
In particular you must not:
5.8 behave in a way, in work or outside work, which would call into question your suitability to work in social care services.
6. As a social care worker you must be accountable for the quality of your work and take responsibility for maintaining and improving your knowledge and skills."
"Trained decision-makers should not be treated as inferior beings intellectually unable to approach the task with an open mind. The fair-minded and informed observer would have that in mind."
"In this present case we have seen no evidence that the panel could not or would not arrive at a fair and reasonable recommendation. It is by no means to be assumed that the two Council members would have entertained, even subconsciously, a disposition towards the protection of Council funds. . . . If there is no reason of substance to question the objective integrity of the first-instance process (whatever may be said about its appearance), it seems to us that the added safeguard of judicial review will very likely satisfy the Art. 6 standard unless there is some special feature of the case to show the contrary. Here there is not."
The nature of the decision to be taken
"9. (1) Part VII of the 1996 Act is only part of a far-reaching statutory scheme regulating the important social field of housing. The administration of that scheme is very largely entrusted to local housing authorities. . . .
(2) Although, as in the present case, an authority may have to resolve disputed factual issues, its factual findings will only be staging posts on the way to the much broader judgments which the authority has to make.
11. . . . None of these cases [including Bryan v United Kingdom (1996) 21 EHRR 342 and Kingsley v United Kingdom (2001) 33 EHRR 13] is indistinguishable from the present, but taken together they provide compelling support for the conclusion that, in a context such as this, the absence of a full fact-finding jurisdiction in the tribunal to which appeal lies from an administrative decisionmaking body does not disqualify that tribunal for purposes of article 6(1)."
Lord Hoffmann's approach can be shown from these few extracts from his speech.
"43. But utilitarian considerations [that it would be cheaper or more efficient to have these matters decided by administrators] have their place when it comes to setting up, for example, schemes of regulation or social welfare. I said earlier that in determining the appropriate scope of judicial review of administrative action, regard must be had to democratic accountability, efficient administration and the sovereignty of Parliament.
52. In this case the subject matter of the decision was the suitability of accommodation for occupation by Runa Begum; the kind of decision which the Strasbourg court has on several occasions called a 'classic exercise of an administrative discretion'. . . .
56. The key phrases in the judgments of the Strasbourg court which describe the cases in which a limited review of the facts is sufficient are 'specialised areas of the law' (Bryan's case 21 EHRR 342, 361, para 47) and 'classic exercise of administrative discretion' (Kingsley's case 33 EHRR 288, 302, para 53). . . . It seems to me that what the court had in mind was those areas of the law such as regulatory and welfare schemes in which decision-making is customarily entrusted to administrators. And when the court in Kingsley spoke of the classic exercise of administrative discretion, it was referring to the ultimate decision as to whether Kingsley was a fit and proper person and not to the particular findings of fact which had to be made on the way to arriving at that decision. In the same way, the decision as to whether the accommodation was suitable for Runa Begum was a classic exercise of administrative discretion, even though it involved preliminary findings of fact.
59. . . . In my opinion the question is whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators. If so, it does not matter that there are many or few occasions on which they need to make findings of fact. . . . Finally, I entirely endorse what Laws LJ said in Beeson's case, at paras 21-23, about the courts being slow to conclude that Parliament has produced an administrative scheme which does not comply with constitutional principles."
(1) Is the applicant a child?
(2) Is the applicant a child in need?
(3) Is he within the local authority's area?
(4) Does he appear to the local authority to require accommodation?
(5) Is that need the 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 from providing him with suitable accommodation or care?
(6) What are the child's wishes regarding the provision of accommodation for him?
(7) What consideration (having regard to his age and understanding) is duly to be given to those wishes?
(8) Does any person with parental responsibility who is willing to provide accommodation for him object to the local authority's intervention?
(9) If there is objection, does the person in whose favour a residence order is in force agree to the child being looked after by the local authority?
" The assessment of age in borderline cases is a difficult matter, but it is not complex. It is not an issue which requires anything approaching a trial, and judicialisation of the process is in my judgment to be avoided. It is a matter which may be determined informally, . . .
 It is apparent from the foregoing that, except in clear cases, the decision-maker cannot determine age solely on the basis of the appearance of the applicant. In general, the decision-maker must seek to elicit the general background of the applicant, including his family circumstances and history, his educational background, and his activities during the previous few years. Ethnic and cultural information may also be important. If there is reason to doubt the applicant's statement as to his age, the decision-maker will have to make an assessment of his credibility, and will have to ask questions designed to test his credibility."
There is no reason why these delicate assessments cannot be made by social workers.
"In our judgment the scheme here is exactly the kind where the first decisions are properly confined within the public body having responsibility for the scheme's administration. Difficult issues of judgment will arise; and difficult balances will have to be struck. We acknowledge that in this particular case issues of credibility arose for decision, and were important to the decision. It is plain however that that circumstance will not of itself require, as the price of compliance with the Article 6 standard, the addition of a strictly independent adjudicative process empowered to re-decide the facts. Mr Giffin cites Kingsley v UK . . . and X v UK (1998) 25 EHRR CD88, which generally support that position. Once it is accepted that the operation of the statutory scheme has to be looked at as a whole, the fact that this or that particular instance may be specially burdened with factual dispute cannot affect the general legality of the arrangements in place for deciding issues of entitlement."
"45. The Court considers that the decision-making process in the present case was significantly different. In Bryan, Runa Begum and the other cases cited in para.  above, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. In contrast, in the instant case, the HBRB was deciding a simple question of fact, namely whether there was 'good cause' for the applicant's delay in making a claim. On this question, the applicant had given evidence to the HBRB that the first that she knew that anything was amiss with her claim for housing benefit was the receipt of a notice from her landlord - the housing association - seeking to repossess her flat because her rent was in arrears. The HBRB found her explanation to be unconvincing and rejected her claim for back-payment of benefit essentially on the basis of their assessment of her credibility. No specialist expertise was required to determine this issue, which is, under the new system, determined by a non-specialist tribunal (see para.  above). Nor, unlike the cases referred to, can the factual findings in the present case be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take."
" In my view, however, the Strasbourg Court did not decide the issue in this case in a manner that would require a different answer to the issue on these appeals which I have reached on the basis of the decision in Runa Begum. In the first place the Strasbourg Court relied on the decision in Runa Begum in reaching its conclusion and said nothing that cast doubt on the correctness of the decision. Secondly, the decisions in Runa Begum and Tsfayo each turned on a careful examination of the whole of the statutory scheme relevant to the particular case. Thirdly, it is apparent from the details of the scheme considered in Tsfayo that . . . the HBRB was not independent of the parties . . ."
So the Court held that it was bound by the decision of the House of Lords in Runa Begum and that even if the Strasbourg court had decided the issue differently from the way in which the House of Lords decided Runa Begum, this Court was bound by the decision of the House of Lords: see Kay v Lambeth LBC  UKHL 10,  2 AC 465 at paragraphs 42-45.
Finally, the Article 8 issue: are A's rights to respect for his private life engaged in the assessment of his age?
"61. As the court has had previous occasion to remark, the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person . . . It can sometimes embrace aspects of an individual's physical and social identity . . . Elements such as, for example, gender identification, name and sexual orientation and sexual life all fall within the personal sphere protected by Article 8 . . . Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings in the outside world . . . Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees." (The emphasis is added by Mr Wise).
" . . . it seems to me that it must be unlikely that a scheme which is held to have the requisite procedural aspects so as to comply with the requirements of Art. 8(2) will still be held to violate Art. 6."
Lord Justice Maurice Kay:
Sir John Chadwick: