KK (A Child), Re

When in family proceedings a court has made a direction under s.37 Children Act 1989 that a local authority should investigate the circumstances of a person claiming to be a child and when, in response to the direction, the local authority have informed the court of their conclusion, following investigation, that the person is not a child and that therefore they do not propose to take any such action in respect of her (or him) as is identified in the section, can the court, and if so should the court, direct that a fact-finding hearing take place in order that it may determine the issue between the person and the local authority as to whether she (or he) is a child?

It was Holman J, sitting in the High Court, Family Division, Principal Registry, on 19 September 2007 who made a direction for such a fact-finding hearing. It is the London Borough of Lambeth (“Lambeth”) which appeal against it.

On 1 December 2006 a young female of Ugandan ethnicity arrived in the U.K. from the Democratic Republic of Congo (“the DRC”). I will call her the applicant. She has remained in the U.K. since then and, pending determination of this appeal and without prejudice to their contention that she is not entitled to it, Lambeth are currently providing her with accommodation as if she were a child.

Who is the applicant? Who is her father? Who is her mother? What is the name by which she was known prior to arrival in the U.K.? In which African state was she living in the year prior to December 2006? And, in particular, what is her age? There is vast confusion. Is the applicant telling the truth? Or is the other principal witness present in the U.K., namely Mr K, who challenges her account, telling the truth? Have various of the persons in Uganda relevant to the enquiry individually used different names? Or have two or more of them used similar names? When Lambeth and others have spoken to persons in Uganda by telephone, have those persons been those whom they have claimed to be? Have apparently relevant documents which have been produced, such as a copy passport and school reports, been forged or tampered with? If it were to proceed, the fact-finding hearing would require hard work of the judge. He would be unable to assume that even the most elementary assertions were true.

The applicant arrived in the U.K. with a visa issued by the British Embassy in the DRC. For some reason a copy of it is not available but it seems to have been issued in favour of a person with names which I will shorten to “T” and to have recited her date of birth as 5 October 1992. The applicant’s claim is that her name is indeed T and has always been T and that she was indeed born on 5 October 1992. So, according to her, she is now aged 15 years and 4 months.

It seems that it was Mr K who, from England, arranged for the visa to be issued in favour of T. Mr K is of Ugandan ethnicity, came to the U.K. many years ago and is now a British citizen. He lives in Tulse Hill with his partner, their three children and a further child of his. His former wife lives in Clapham with their adult son. Mr K claims that until recently he believed that he had two further non-marital children, each by a different mother, and that, until the applicant’s arrival in the U.K., both children were resident or at least habitually resident in Uganda. The older child, so he says, had names which I will shorten to “C” and was born on 1 June 1987, so, assuming that she exists, she is now aged 20 years and eight months. The younger child, so he says, was T, who (he agrees) was born on 5 October 1992. He says that he remitted sums to Uganda which enabled C satisfactorily to attend boarding school there in 2005 and 2006. In relation to T, however, he says that in 2005 he became worried about her safety in that he had learned that she had fled to the DRC as a result of civil war in Uganda; and that he therefore made arrangements, including by way of a successful application for the grant of entry clearance, for T to travel from the DRC to the U.K. as his dependant child in order to reside with him and his family in Tulse Hill.

When, however, on 1 December 2006 he went to Heathrow Airport to collect T, Mr K, according to his evidence, discovered that it was C who, with the visa issued to T, had arrived from the DRC. Mr K says that the applicant is C and not T; that she is therefore now aged 20 and not 15; that, with the help of her aunt, she had stolen T’s identity in order to enter the U.K.; and that she had gone to the DRC in order to travel to the UK under the visa issued in favour of T.

For some weeks following her arrival in the U.K. the applicant lived with Mr K and his family. She was registered at a school in Mitcham under the name T and thus as then being aged 14; and, if the fact-finding hearing were to proceed, Mr K would face stern questions about his apparent presentation of her to the school as being T, then aged 14. But the applicant’s stay in Mr K’s home did not prove successful. There were tensions between her and, in particular, his partner. In about January 2007 Mr K alleged to the U.K. immigration authorities, in an apparent effort to cause them to return the applicant to Uganda, that she had secured admission to the U.K. on the basis of a false identity. In these proceedings he even contends that, prior to her inception of proceedings, the applicant was content to return to Uganda. On 5 February 2007 the applicant’s school referred her to Lambeth; on the following day the applicant complained to the police that Mr K’s partner had locked her out of the home; and on 16 February 2007 the applicant left the home and went to live in a refuge. On the same date, by a litigation friend, namely Ms Humphrey of VOICE, the applicant secured leave to apply under the Children Act 1989 (“the Act”) for a prohibited steps order restraining Mr K from causing or permitting her to be removed from England and Wales and she obtained the first of a series of interim orders to that effect. As a respondent to that application, Mr K has throughout appeared in person. When making one such order on 21 February 2007, Bennett J, apprised of the contention of Mr K that the applicant was C, then aged 19, directed Lambeth under s.7 of the Act to file a welfare report in relation to her, including, if possible, an assessment of her age.

In a careful report dated 19 March 2007 Lambeth expressed the conclusions that the applicant was not, as she claimed, then aged 14 and that, as Mr K claimed, she might well be then aged 19. In three separate paragraphs Lambeth recognised that the court might need to determine the issue whether she was a child. Meanwhile, by her lawyers, the applicant had instructed Dr Michie, a consultant paediatrician with experience in this field, to interview and examine her with a view to estimating her age. The conclusion in his report was that, as at 15 March 2007, she was probably aged 17, was possibly aged 16 or 18 and was highly unlikely to be aged 15 (or less) or 19 (or more). Were Dr Michie’s assessment correct, it would follow that it was highly unlikely that the applicant was either T or C.

Meanwhile on about 8 March 2007 the applicant applied in the High Court, Queen’s Bench Division, Administrative Court, for permission to apply for judicial review of Lambeth’s decision not to accommodate her, reached, apparently, on the basis that, even were she a child, Mr K, as her father, was by then making a genuine and reasonable offer to allow her to return to his home. Interim orders were made that Lambeth should provide her with suitable accommodation pending determination of her application for permission; but issues arose as to whether their proposed accommodation of her was suitable.

The proceedings for judicial review and those under the Act of 1989 were directed to be heard together; and at some stage Lambeth were made a party to the latter in addition, of course, to the former. The linked proceedings came before Holman J on 26 April 2007. We have a transcript of his judgment delivered on that day, from which we can discern the orders which he made. The fact is, however, that neither of his orders in the two sets of proceedings was ever issued. In addressing this failure. I assume either that Holman J did not request counsel to lodge drafts of the orders with his associate or that, if he did so, they duly lodged them. Although I cannot comment on the general performance of the Administrative Court in this respect, I can say that substantial delay in the issue of orders and occasionally the failure to issue orders at all appear to be a serious, growing problem in the Family Division. Although the court system is primarily responsible for ensuring that orders made in the Division are duly issued, it is in my view the duty of the solicitors, or if in person the parties, to write by e-mail to the chief associate of the Division, and ultimately even to the judge’s clerk, if orders are not issued within a reasonable time.

One matter was not and never had been in issue between the applicant and Mr K, namely that, whatever her age and identity, she was his child. But on 26 April 2007 Holman J seems to have had a sixth sense. Having collected the consents thereto of the applicant (necessary only insofar as she might be an adult) and of Mr K, the judge directed that a DNA test be conducted upon them in order to establish his paternity or otherwise of her. He also directed that a hearing should take place over three days, preferably in July 2007, at which the court should determine her age and identity. In the proceedings for judicial review he adjourned the application for permission until that hearing and declined to extend the interim order for Lambeth to accommodate her.

The report of the DNA test, dated 8 June 2007, established that Mr K could not be the father of the applicant.

This development raised further possibilities, not hitherto addressed in the proceedings. Had Mr K and the applicant at all times wrongly believed that he was her father and treated themselves as father and daughter? Or had one or other or both of them known and suppressed the fact that he was not her father? It did not follow from the DNA report that the applicant was not C, by then aged just 20; nor did it follow that she was not T, then aged 14. But arguably it gave extra credence, beyond that provided by the report of Dr Michie, to the possibility that she had another age and identity altogether.

The DNA report had another immediate consequence. Lambeth resolved both that they could no longer expect the applicant to return to live with Mr K and that, were she a child, they had a duty to accommodate her. Without prejudice to their doubts about her minority, they placed her in foster care.

The three day hearing had been fixed to begin on 17 July 2007. By that stage, however, for reasons which are unclear, those representing the applicant and Lambeth had reduced the time estimate and unfortunately, had thereby disabled the judge, who was Charles J., from conducting the enquiry into the applicant’s age and identity for which Holman J. had provided. We have a transcript of the proceedings on that day. At the outset Charles J. gave the applicant leave to withdraw the proposed application for judicial review. In the proceedings in the Family Division he made only further interim orders and directions, important though they are for the purpose of this appeal. Although Mr K claimed that he had abandoned any intention of removing or seeking to remove the applicant from England and Wales, the judge made a renewed order that he should not do so. As drawn by counsel, the order was cast both as a further prohibited steps order and as an order made in the exercise of the High Court’s inherent jurisdiction with respect to children; but the transcript indicates that Charles J probably intended only the latter. Before him counsel had referred to a problem, not then identified, about making a further prohibited steps order; and Mr O’Brien on behalf of Lambeth explains to us that the problem was the discovery that Mr K was not the applicant’s father. In that such an order can be made against “any person” and not just against a parent, I would not, as it happens, accept that the discovery gave rise to any such problem. But the basis of the order against Mr K is irrelevant. For, even if the order is taken to have been made only in the exercise of the High Court’s inherent jurisdiction, the result was that “family proceedings” continued: see s.8(3) of the Act.

Although such was not made explicit in the discussion before Charles J, it was the continuing existence of “family proceedings” which enabled him to make his crucial direction to Lambeth under s.37 of the Act to undertake an investigation of the applicant’s circumstances.

Section 37 provides as follows:

“Powers of court in certain family proceedings

(1)

Where, 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.

(2)

Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should –

(a)

apply for a care order or for a supervision order with respect to the child;

(b)

provide services or assistance for the child or his family; or

(c)

take any other action with respect to the child.

(3)

Where a local authority undertake an investigation under this section, and decide not to apply for a care order or supervision order with respect to the child concerned, they shall inform the court of –

(a)

their reasons for so deciding;

(b)

any service or assistance which they have provided, or intend to provide, for the child and his family; and

(c)

any other action which they have taken, or propose to take, with respect to the child.

…”

It is important to note Lambeth’s response to the early indication of Charles J during the hearing on 17 July 2007 that he was minded to direct them to investigate under s.37. In giving such an indication the judge was clearly aware that there were unresolved doubts as to whether the applicant was a child. He was probably aware, for example, that Lambeth had already indicated that she might well not be a child; and he may well have foreseen that Lambeth might purport to respond to any such direction merely with a more definite conclusion, albeit perhaps only on the balance of probabilities, that she was not a child. On Lambeth’s behalf, Mr O’Brien initially responded that he could not resist such a direction; later, having made clear that he had taken instructions, he confirmed that Lambeth were content to prepare a report under the section. So the judge made the direction, including that the report be filed by 31 August 2007; and he provided that a further hearing for directions should take place in September 2007. At the end of the hearing Charles J said:

“At this stage I am not making a direction for further medical examination. It seems to me the appropriate time to consider that is at the next stage, should it be required. He has made a proposal that he would pay 25% of that cost should it be necessary.”

It is clear, as Holman J was to observe when making the direction under appeal, that Charles J was there referring to a medical examination of the applicant with a view to determining her age, such as had been conducted by Dr Michie. The reference to payment of 25% of its cost was to an offer to that effect made in court by Mr K, who had criticised Dr Michie’s report.

On 31 August 2007 Lambeth filed their report. On its face the report was full and careful. In it, however, they concentrated entirely on the issues about the applicant’s history prior to December 2006, about the identity for example of her mother, about her own identity and, essentially, about her age. In this regard they sought to survey the significance of some of the documents to which I have referred. They did not address the applicant’s current “circumstances” within the meaning of s.37(1), her plans for the future, their suitability for her and the circumstances, optimum for her, in which they considered that her life should thenceforward develop. They expressed conclusions that it was “probable” that the applicant was C, born on 1 June 1987; that they could not exclude the possibility that she might be someone other than C; but that it was very unlikely that she was born on 5 October 1992, namely the date of birth ascribed to T. At the end of the report Lambeth wrote:

“72.

As the Authority has concluded that [the applicant] is over 18 years of age, it is clearly not appropriate to consider making any application for a Care or Supervision Order. Further, because of her age the applicant is not entitled to any other services from the Children and Young Persons Service. Indeed there is no power to provide this.

73.

Consequently the Authority is giving notice to [the applicant] that her continued accommodation under Section 20 Children Act 1989 is not appropriate and will be terminated [with effect from] 25 September 2007.”

There is no need to rehearse Mr O’Brien’s arguments to Holman J at the hearing which began on 14 September 2007 and continued on 19 September 2007 as to why he could not, or should not, direct that a hearing should take place in the Family Division in order to resolve the issue between the applicant, who continued to maintain that she was T and had been born on 5 October 1992, and, in particular, Lambeth about whether she was a child. For the arguments were almost identical to those put before this court. Nor, with respect and for an analogous reason, need I address the terms in which the judge rejected them. His direction was in the following terms, which he had himself drafted:

“These proceedings be listed on 27 February 2008, with a time estimate of 3 days, before any judge of the Family Division for a fact finding hearing of the following issues or questions:

(i)

Whether or not the Applicant is a child, i.e. under the age of 18;

(ii)

If she is a child, then in so far as it can be determined, her age or approximate age;

(iii)

If it can be determined, her identity.”

I am confident that I fairly cast Mr O’Brien’s various arguments in support of the appeal within the following ten propositions, all in my own phraseology:

I agree with some of Mr O’Brien’s propositions, in particular (and putting (a) to one side) those at (b), (c), (d) and (e) in [22] above. I also see great force in those at (i) and (j). But at the heart of his propositions lie those at (f), (g) and in the last sentence of (h); and it is there that he and I part company.

For in my view Mr O’Brien’s arguments pay proper regard neither to the fact that on 17 July 2007, without their opposition, Charles J. made a direction to Lambeth under s.37; nor to the terms of that section.

I do not wish to imply that I consider Charles J to have been wrong to make the direction under s.37. On the contrary I consider him probably to have been right. The transcript does not suggest to me that his decision to renew the order against Mr K was merely a contrivance in order to maintain the subsistence of such family proceedings as might enable him to make the direction. In the latter regard he was confronted by an applicant who contended that she was a child; in relation to whom it had just become clear that she had no parent in the U.K.; and whom Lambeth had already suggested to be a person who might well not be a child and therefore in relation to whom they might well consider themselves not to have duties under the Act. But whether Charles J was right or wrong is irrelevant. For he made the direction without opposition on the part of Lambeth; and there is, and can be, no appeal against it.

So we must turn to the terms of s.37, set out at [18] above. The power under s.37 arises in any family proceedings in which a question arises with respect to the welfare of any “child”. Where in such proceedings it appears to it that it may be appropriate for a care (or supervision) order to be made with respect to her, the court may direct an investigation of “the child’s” circumstances.

If their appeal is to succeed, Lambeth need to establish that any issue whether a person is a “child” within the meaning of s.37 is to be determined by the local authority to whom the direction thereunder is made. I do not agree. I consider that it is to be determined by the court which is minded to make – or has on a presumptive basis made – the direction.

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:

It follows that I do not regard Lambeth as having yet made a substantive report in response to the direction of Charles J. Instead they have made a preliminary report to the effect that the first of the three threshold requirements, namely that the applicant should be a child, is not satisfied. Put another way, Lambeth albeit in appropriately respectful and reasoned terms, have in effect endorsed on the court’s direction the words “NOT APPLICABLE”. As Holman J correctly decided, it is for the court which made the direction now to determine, on all the evidence, whether the applicant is a child and thus whether the direction, which (as Lambeth concede) was validly made by Charles J on a presumption to that effect, should not be discharged but on the contrary maintained in order to extract from Lambeth a report both upon the past, present and optimum future circumstances of the applicant qua a child, born on a date which the court will attempt to specify, and upon Lambeth’s assessment of whether in such circumstances they should discharge any of the functions identified in s.37(2).

It was not only Holman J who correctly considered that any issue between the applicant and Lambeth as to whether she was a child which remained following the making of the direction under s.37 should be determined by the court. That Charles J was also of that view is clear from his words quoted at [19] above, in which he postponed consideration of the need for a second medical examination of the applicant with a view to assessment of her age until the hearing for directions to be fixed to take place after Lambeth had filed their report under s.37.

On behalf of the applicant Mr Bowen seeks to justify the direction of Holman J in a number of different ways. At the outset, for example, he argues that the issue as to whether the applicant is a child is an issue of “precedent fact” and, thus that, in the words of Lord Scarman in R v. SSHD, ex p. Khawaja [1984] AC 74 at 108G,

“where the exercise of an executive power depends upon the precedent establishment of an objective fact, it is for the court, if there be a challenge by way of judicial review, to decide whether the precedent requirement has been satisfied.”

Even assuming however, that, notwithstanding the doubts expressed by Butler-Sloss L.J. in R v. Dyfed CC ex p. S [1995] 1 FCR 113 at 132E, the valuable line of authority set in Khawaja applies to review of the exercise not only of powers to detain in the event that specified circumstances exist, Mr Bowen has no need to draw upon it. 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. For the same reason Mr Bowen has no need, by his respondent’s notice, to invoke the inherent jurisdiction of the High Court to direct as Holman J did, still less to seek to take us, even by a colleague’s skeleton argument in another case, on a tour d’horizon of a person’s right to respect for her identity under Article 8 of the European Convention 1950. Holman J did not purport to make the direction in the exercise of his inherent jurisdiction as a judge of the High Court and he had no need to do so. His jurisdiction arose from within s.37 itself; and it follows that judges in county courts and magistrates in family proceedings courts who are minded to make – or have on a presumptive basis made – directions under s.37 have precisely the same jurisdiction in this respect.

There are interesting parallels between the present case and E v. London Borough of X [2006] 1 FLR 730 but, in the light of the subsistence in the present case of the direction under s.37, to which Lambeth have not yet made a substantive response, the correctness of Holman J’s direction under present appeal is in my view a fortiori. E was a ward of court, in relation to whom a direction made under s.37 had already collected the local authority’s substantive response. Only later did E’s purported mother deny that she was her mother and, in particular, assert that E was not a child. Pursuant to a further direction in the exercise of the inherent jurisdiction the local authority filed an age assessment, in which they concluded that E was not a child. Thereupon, rejecting the local authority’s submission that the proper vehicle for E’s challenge to their assessment was judicial review, Bracewell J. directed that in the wardship proceedings the court should itself conduct a fact-finding hearing in order to determine whether E was a child. The local authority did not appeal against her direction but, at the start of the fact-finding hearing before Sir Mark Potter, the President of the Division, they renewed their objection to any challenge to their assessment other than by judicial review. The President overruled their objection. One obvious answer, which bears upon the significance of the approach adopted by Lambeth to the direction under s.37 made by Charles J., was that it had been open to the local authority to have sought to appeal against the direction made by Bracewell J. But the President also said as follows:

“[32] … if the court is satisfied that the wardship proceedings are being misused, in the sense that they are carried on solely for the purpose of obtaining a decision or order which by-passes or interferes with a process of age assessment by a local authority, then it would be inappropriate for the court to exercise its wardship jurisdiction for that purpose. 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.

[33] Is the position here such that those observations apply? In the special circumstances of this case, I do not think it is.”

I respectfully agree with the President’s observations in E, set out above. It follows that, when asked in family proceedings to make a direction under s.37, the court must be satisfied that the proceedings are not a contrivance in which, by the proposed direction, to secure the facility to challenge a local authority’s assessment of a person’s age in a judicial enquiry de novo which would run counter to the statutory scheme for the discharge of local authority functions. If satisfied that the proceedings are such a contrivance, the court should bring them to an end; and that would put paid to the application under s.37. Even if the court considers itself unable to go that far, its power under s.37 remains discretionary and, before making a direction thereunder, it should carefully weigh any objection on the part of a local authority to the effect that the real issue is whether the person is a child and that a judicial determination of it, whether conducted before the direction is made or in response to a challenge definitively raised only after it has been made on a presumptive basis, would improperly invade their own province.

The bottom line, however, is that local authorities cannot be the arbiters of whether courts have jurisdiction to make directions to them. In my view the answer to the question set out in [1] above is yes. I would dismiss the appeal.

I agree.

I also agree.