Court of Appeal

Published April 2, 2008

Lambeth London Borough Council v TK and Another

When, in family proceedings, a court had made a direction under section 37 of the Children Act 1989 that a local authority should investigate the circumstances of a person claiming to be a child and, in response, the local authority concluded that the person was not a child, the court had power to order a fact-finding hearing to determine the issue.

The Court of Appeal (Lord Justice Dyson, Lady Justice Smith and Lord Justice Wilson) so held in a reserved judgment on February 21, 2008, in dismissing an appeal brought by Lambeth London Borough Council against the direction made by Mr Justice Holman, in the Principal Registry of the Family Division on September 19, 2007, that there should be a fact-finding hearing.

LORD JUSTICE WILSON said that he agreed with the observations of Sir Mark Potter, President of the Family Division, in E v X London Borough Council ([2006] 1 FLR 730, paragraph 32).

When asked to make a direction under section 37, the court had to be satisfied that the proceedings were 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 inquiry which would run counter to the statutory scheme for the discharge of local authority functions.

Local authorities could not be the arbiter of whether courts had jurisdiction to make directions to them.

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