England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR TIMOTHY BRENNAN, QC, SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
[2009] EWHC 2402 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st January 2010

Lord Justice Rimer:

1. This is a renewed application for permission to appeal against the refusal of Mr Timothy Brennan QC, sitting as a deputy High Court judge, to grant permission to the applicant, MT, to apply for judicial review of a decision made by the London Borough of Hillingdon.
2. MT arrived from Eritrea in December 2007 as an unaccompanied minor; or so she claimed. She sought asylum. Hillingdon accepted that she was a "child" within the meaning of section 105(1) of the Children Act 1989, where "child" is defined as "a person under the age of eighteen". Pursuant to their duty under section 20, Hillingdon provided MT with accommodation by way of a foster placement. I understand that they accepted that MT was born, as she asserts, on 4 January 1992.
3. Hillingdon then had suspicions as to whether MT might in fact be older than she claimed and they had accepted. In particular, they suspected that she might be older than 18. If the suspicions were well-founded, they were under no section 20 duty. They accordingly engaged in an age assessment of MT and assessed her to be older than 18 and thus not eligible for accommodation. She was informed that her placement would end on 28 April 2009.
4. MT sought judicial review of Hillingdon's decision as to her age, said to have been made on 17 March 2009, on the basis that it had been made unlawfully by reason of procedural shortcomings falling under four heads. In the application for permission, Mr Brennan regarded none as having any substance and he dismissed MT's application by an order dated 27 August 2009. Sir Richard Buxton refused permission to appeal on the papers on 4 November 2009.
5. There was, however, then an important development in the shape of the delivery on 26 November 2009 by the Supreme Court of its judgments in R(on the application of A) v London Borough of Croydon [2009] UKSC 8, which is said by Mr Auburn, who appears, as below, for MT, to show that MT and Mr Brennan innocently approached the case below on the wrong basis. The resolution of the difference between MT and Hillingdon as to the lawfulness of Hillingdon's decision was not, it is now said, one that could only be based on a challenge to the procedural integrity of Hillingdon's decision. The Supreme Court has shown that MT is entitled to have the dispute as to her age decided by the courts as a matter of fact according to the usual civil litigation standard of balance of probabilities. It is therefore said that such a determination is the one to which MT's application for judicial review entitled her, and that appears to be supported by what Baroness Hale of Richmond said at paragraph 33.
6. I accept that the Supreme Court's decision provides apparently compelling support for the argument that the case was argued and decided on the wrong basis before Mr Brennan. MT could in theory have run the right argument below but did not and there may perhaps be a question as to whether she is entitled to run the new case in this court. I say no more about that, but am at least prepared to allow her to amend her Appellant's Notice to raise the new point and to give her permission to appeal to the full court in order to argue it. The Appellant's Notice does not in fact annex formal Grounds of Appeal, the current grounds being incorporated into Mr Auburn's skeleton argument. I will direct Mr Auburn to file a formal document headed Grounds of Appeal which will incorporate the new point.
7. I add two things. First, if, as is her case, MT was born on 4 January 1992, she is now 18, and it might perhaps be thought that, even if she is right on the law and the facts and Hillingdon's decision of 17 March 2009 was wrong, she can now gain nothing by a successful appeal because she is too old to reap any benefit from it. That may, however, not be so, and is said by Mr Auburn not to be, as there are provisions in the Children Act 1989, to which he has referred me, imposing continuing duties on the local authorities in respect of children above the age of 18 whom they have previously accommodated under section 20.
8. The second point is what to do with the other grounds of appeal raised in Mr Auburn's skeleton argument. Mr Auburn recognises, as seems probable, that it is unlikely that they have any continued life in them, although, had the law remained as it was perhaps thought to be until the Supreme Court's decision, Mr Auburn's skeleton argument would have conjured up more sympathy from me than it was able to extract from Mr Brennan and Sir Richard Buxton.
9. The points raised are short ones and Mr Auburn is, perhaps wisely, unwilling to abandon them at this stage in case for any reason he needs to fall back on them. As this matter is anyway going to come before the full court on the basis of the permission to appeal that I have indicated that I am prepared to give, what I propose to do is to adjourn the application for permission to appeal on those other grounds to the full court, on notice to the respondent, with the appeal to follow immediately on any ground for which permission may be given. It may perhaps be, however, that in the run-up to the hearing of the appeal the parties will be able to agree that those other grounds can all be forgotten.