A person who had been entitled to the provision of assistance by a local authority under the Children Act 1989 as a child in need, but to whom no assistance was in fact provided, did not fall within the definitions of “looked after” child, “relevant child” and “eligible child” in the 1989 Act and could not therefore, on attaining his majority, become a “former relevant child” for the purposes of section 23C of the 1989 Act, to whom the local authority owed continuing statutory duties for the provision of assistance. Where a local authority mistakenly but not unfairly or unlawfully concluded that a person was not a child and decided not to perform any duties towards him as a child in need under the 1989 Act, its failure to perform those duties was unlawful. The local authority could use its discretionary powers to provide services that it might have been obliged to provide if the person had been a former relevant child.

The Court of Appeal, Civil Division so held when allowing an appeal by GE, an Eritrean national, against the decision made by Mark Ockelton, sitting as a deputy High Court judge in the Queen’s Bench Division [2014] PTSR 124 on 26 July 2013, dismissing the claimant’s appeal against the decision made by the second defendant, Bedford Borough Council refusing to treat her as a child in need for the purposes of the Children Act 1989. The claimant arrived in the United Kingdom seeking asylum and claiming to be a child. The first defendant Secretary of State determined that she was over 18 years old and therefore treated her as an adult, declined her asylum claim and commenced the process of her removal. The claimant sought judicial review of the Secretary of State’s decisions. She then contacted the local authority asserting that she was a child in need. Age assessments conducted by and on behalf of the local authority concluded that she was over 18, and the local authority did not therefore perform any of the duties that it would have owed to her under the Children Act 1989 had she been a minor. The local authority was joined as second defendant to the judicial review claim. The claim against the Secretary of State was stayed pending the outcome of the application for permission for judicial review of the local authority’s refusal to treat the claimant as a child in need. The judge held that a minor who had been entitled to assistance under the 1989 Act, in particular to the provision of accommodation, but to whom no assistance had in fact been provided did not fall within the definitions of “looked after” child, “relevant child” and “eligible child” in the 1989 Act and could not therefore be a “former relevant child” on attaining his majority and that, accordingly, the local authority owed the claimant no continuing duties under the 1989 Act.

CHRISTOPHER CLARKE LJ said that under section 23C of the 1989 Act, a "former relevant child" was defined as a person who had been “a relevant child” for the purposes of section 23A of that Act and a person who was being looked after by the local authority when he attained the age of 18, and immediately before ceasing to be looked after was an “eligible child.” The effect of the relevant legislation was that in order to be an “eligible child” and hence a "relevant child" for the purposes of section 23A of the 1989 Act, a child had to have been looked after by a local authority for a total of at least 13 weeks between their fourteenth and eighteenth birthdays. The language of the statute was clear. The statute did not say that someone was a former relevant child if he or she should have been looked after at the relevant time or for the requisite period. There was no good reason to hold that a child who was not in fact looked after by a local authority should be treated as if he had been, in order to become a former relevant child. The purpose of the provision was to provide some continuity of care and assistance after a child who had been looked after by the local authority became 18. The draftsman could not be taken to have contemplated that provisions intended to have that effect should create a right, after the child was 18, on account of the fact that he should have been, but was not, accommodated for the relevant period before then. The deputy judge was therefore right to hold that the claimant was not a former relevant child, even if she was under 18 when she came to the attention of the local authority. If it was subsequently determined by the court that the claimant was in fact a child at the relevant time, it was not open to the court to “deem” accommodation to have been provided pursuant to section 20 of the 1989 Act with the result that the claimant was to be treated as a former relevant child. However, a local authority could use its discretionary powers to make good any unlawfulness that it had committed in the past and might, in some circumstances, be obliged to do so. Any such discretion had flexibility, for instance, the local authority might provide some but not all of the services that it might have been obliged to provide if the claimant had been a former relevant child. Much would depend on the circumstances, including whether or not the claimant had sought interim relief and been refused, whether he was guilty of unacceptable delay, whether and to what extent the authority or the claimant should be regarded as blameworthy, countervailing considerations of public interest which would entitle it to refuse any relief at all, and what other remedies were open to the claimant. Where a local authority properly carried out an age assessment, concluded that a person was over 18, and therefore took no steps to perform any duties towards him as a child in need, and a judge subsequently concluded that at the material time the person was in fact under 18, the local authority’s failure to perform those duties at the relevant time was unlawful. As established by the decision of the Supreme Court in R (A) v Croydon London Borough Council (Secretary of State for the Home Department intervening) [2009] 1 WLR 2557, the duty imposed by section 20(1) of the 1989 Act was not owed only to a person who appeared to the local authority to be a child, but to any person who was in fact a child, and whether a person was a child was not a matter for the authority, only reviewable on public law grounds, but a question of jurisdictional fact for the court. If the person was in fact a child, it would plainly have been possible for the local authority to think that he needed accommodation because there was no one who had parental responsibility over him. The fact that they did not do so because they got his age wrong did not mean that they owed no duty. If the claimant in the instant case was a child it was difficult to see how she could have been regarded as anything other than a child in need who required accommodation, and the local authority might well then have been under a duty to accommodate her so that if the duty had been performed she would now be a former relevant child. If so, she could legitimately ask the local authority to exercise it’s discretion to afford her some or all of the benefits which she would have enjoyed. For all those reasons the order dismissing her claim would be set aside and the matter referred back to the Administrative Court for determination of the claimant’s age.

DAVIS LJ and SIR BERNARD RIX delivered concurring judgements, Sir Bernard Rix dissenting on the question of whether a subsequent judicial determination that a person was in fact aged under 18 when he came to the attention of the local authority, notwithstanding the fact that the local authority’s incorrect determination at the relevant time that the claimant was over 18 was not itself unfair or unlawful, rendered the local authority’s decision not to provide support under section 20 of the 1989 Act, unlawful.