2010 12 Children

Saturday 1 January 2011

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Case Law

Little by way of reported cases this month but it seems that some local authorities, in age disputes, are still refusing to re-assess a putative child's age in circumstances where fresh evidence is made available on the basis that an immigration judge has already ruled on the fact of age. Practitioners should remind themselves of the case of PM v Hertfordshire CC [2010] EWHC Admin 2056 where the HIgh Court held that the decision of the immigration tribunal is not a judgment in rem binding on the local authority in respect of findings regarding age. The same arguably would apply to immigration authorities - practitioners have also seen cases of the UKBA refusing to release a putative child despite agreement by a local authority to re-assess age on the basis of findings made by an immigration judge. This has been held by the HIgh Court to be impermissible: see H v SSHD [2010] EWHC 2414. Read together with PM v Hertfordshire, these two cases provide an important basis for challenging detention of age disputed children. (Of course the UKBA also operates a policy which makes impermisslble (save for in exceptional circumstances) the detention of children, including age disputed children - see their APG on Assessing Age.

Cases to watch

R(FZ) v LB of Croydon (C1/2010/2824): Appeal from refusal of permission to proceed with an age dispute challenge (Mr. Dingesmans Q.C. sitting as a deputy High Court Judge). Leave to appeal was granted by the President of the QBD, Sir Antony May on 21st December 2010 with a substantive hearing listed for 12th January 2011. This will be the first opportunity for the Court of Appeal to give guidance to social workers as to how initial assessments of age should be carried out, including consideration of the nature and scope of principles of procedural fairness; role of appropriate adult; entitlement to have an opportunity to rebut adverse impressions, etc. The Appellate Court will also be considering the correct approach the reviewing court ought to take in considering permission in age dispute challenges post-A v Croydon.
What this case highlights is the urgent need for statutory guidance on the assessment of age. The Secretary of State does have the power to so issue guidance under s7 of the Local Authority Social Services Act 1970.
The Welsh Assembly Government is currently consulting on an All-Wales Protocol to unify the way age assessments are approached by all agencies, including local authority safeguarding boards, police, charitable organisations, etc. The aim is to bring unity to an area that is often hotly contested. There is no comparable consultation going on in England.

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