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(Supreme Court; Lord Hope, DPSC, Lord Scott, Lord Walker, Lady Hale and Lord Neuberger; 26 November 2009)
If live issues arose about the age of a person seeking accommodation under Children Act 1989, s 20(1), then the court would have to determine where the truth lay on the evidence available. Unlike the question whether a child was 'in need', which required a number of different value judgments, the question whether a person was a 'child' had a right or a wrong answer and was a question of fact. Many questions of fact that came before the court were difficult to determine, but that did not prevent them from being questions for the court rather than for other kinds of decision makers. Clearly, the public authority, whether the children's services authority or the UK Border Agency, had to make its own determination in the first instance, and it was only if this remained disputed that the court might have to intervene. The better the quality of the initial decision-making about age, the less likely it was that the court would come to any different decision upon the evidence. Although the only remedy available, judicial review, was not well suited to the determination of disputed questions of fact, it could be so adapted if the need arose. That the remedy was judicial review did not dictate the issue for the court to decide or the way in which it should do so, as the cases on jurisdictional fact illustrated.
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