2011 01 Children

Tuesday 1 February 2011

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Case Law

R (CJ) v Cardiff County Council [2011] EWHC 23 (Ouseley J): Substantial fact-finding trial of an unaccompanied age dispute minor. It is the first case of its kind to consider the issue of the burden of proof at a substantive trial. Ouseley J held that normally, it is unnecessary to consider the issue of the burden of proof in an age trial. The answer will be clear following live evidence. On the facts of the case, the Judge was unable to make a decision as to the fact of the putative child's age. He stated at pargraph 126 that neither party, if the burden was specifically on them, was able to fully prove that the answer they put forward is the correct one. He held in those circumstances that the burden of proof falls on the child for 3 reasons: (i) age disputes are brought by way of judicial review. In judicial review claims, the onus is on the claimant to prove his case; (ii) he who seeks to benefit from a duty has to prove his case; and (iii) the evidence as to age is by and large in the control of the child. In so finding, Ouseley J relied on R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74 as the proposition for his finding. Click here for the full judgment.

Note: The claimant in CJ has applied for leave to appeal, it is understood, on the point as to the burden of proof among other things. The application for leave to appeal has been stayed behind the appeal in R (FZ) v LB of Croydon (C1/2010/2824) which was heard on 12th January 2011 (Sir Anthony May (President of the QBD), Smith LJ and Aikens LJ). Judgment is due out on 1st February 2011.

FZ was mentioned in last month's update as a case to watch. This case is due to become the guideline case on age dispute challenges, including on the nature and extent of the requirement of fairness in a local authority assessment of age and the correct test to be applied in age dispute judicial review claims. The Court of Appeal has also asked for submissions from the parties in FZ on the burden of proof point in CJ. It is unclear what the Court of Appeal in FZ will say about CJ and the burden of proof at a substantive stage as FZ is a permission stage judgment.

With the power now for the High Court to transfer age dispute judicial review claims to the Upper Tribunal (Immigration and Asylum Chamber), FZ will likely be a benchmark for how the courts will have to approach age dispute claims at the permission stage.

In this author's view, there are several problems with Ouseley J's analysis of the burden of proof:

(i) the effect of his judgment is to confine the outcome of the trial to one of two answers - the answer provided by the putative child and the answer provided by the local authority. This doesn't sit well with the Judge's own analysis of the evidence before him. At para 126, it is clear that Ouseley J felt that neither party's evidence was conclusive. So why not arrive at his own decision as to age? That is what was how Langstaff J approached the assessment of age in MC v Liverpool CC [2010] EWHC 2211 (Admin). (Click here for judgment). His approach was affirmed by HHJ McMullen in A v Camden LBC [2010] EWHC 2882 (Admin).

(ii) burden of proof should not be determined by the forum in which the claim is heard. That age disputes are brought by judicial review is a recent relic of the pre-A v Croydon approach where the only challenge that could be launched against a local authority assessment is by public law principles. The Supreme Court in A v Croydon clearly made a distinction between conventional JR claims under the Children Act 1989 challenging provision of services and age dispute claims where the issue is that of a precedent fact. It is therefore not helpful to consider burden of proof within the constraints of conventional judicial review onus of proof.

(iii) the evidence of age is not entirely in the hands of the child. Why else would there be evidence of age by way of expert evidence (medical, psychological, social work) and consideration of physical appearance and demeanour (even though, of course, not determinative). To say that the evidence is all in the hands of the child ignores why age disputes arise in the first place. They arise because the child has no certain proof of age and why a trial is required to discover the right answer.

(iv) Khawaja does not support the analysis in CJ. It is actually a good illustration of the inquisitorial nature of the court's role in cases where precedent facts need to be determined. See Lord Scarman at 110E-F of Khawaja. It is far easier to arrive at the right answer in a Khawaja type case because there, the answer is between two choices - either the person entered lawfully or unlawfully. Age, as courts and experts all acknowledge, is an inexact science. Whilst Khawaja is helpful to illustrate the court's inquisitorial role, it is not authority as to burden of proof in all precedent fact claims.

R (Suppiah and ors) v SSHD [2011] EWHC 2 (Wyn Williams J): The claimant failed asylum seekers applied for judicial review of the defendant secretary of state's decision to detain them pending removal. The first claimant (S), and her children the second and third claimants, had exhausted their appeal rights against the refusal of their claims for asylum. On February 7, 2010 they were served with directions for their removal on February 10 and immediately removed from their home and taken into detention. S then made further representations as to why they should not be removed, and also applied for judicial review. In the face of that the UK Border Agency decided not to remove them as planned, but they remained in detention until February 24. The fourth claimant (B), and her son the fifth claimant, had also exhausted their rights of appeal against their refused asylum claims. On February 10, 2010 she was served with directions for their removal on February 13 and they were immediately removed from their home and detained. On February 12 an injunction against their removal was granted, and also she was not fit to travel, so they were not removed as planned, but they remained detained until February 22. The claimants asserted that their detention was unlawful and breached their rights under the ECHR, Articles 5 and 8.

Wyn Wiliams J held that:

(1) The secretary of state's policy relating to detaining families with children was lawful, and it conformed to the United Kingdom's obligations under the United Nations Convention on the Rights of the Child. The claimants could not establish that the policy could not work lawfully in practice or that there was such a risk of unlawful decision-making when it was applied that it should be declared unlawful on that ground. However, there was significant evidence that the Agency had failed to apply it with the rigour that it deserved. The proper interpretation of it was that the detention of families with children should be authorised only in exceptional circumstances. That meant that the suggestion in the policy that families with children could be detained on the same basis as any other person liable to removal should be regarded, quite properly, as redundant (see paras 25, 209-222, 224 of judgment).

(2) On the balance of probabilities no meaningful or proper offer of assisted voluntary return was ever made to either B or S prior to their detention. There was no evidence that the relevant decision-makers in the Agency had considered their duty under the Borders, Citizenship and Immigration Act 2009 s.55 to safeguard and promote the welfare of the children, or had treated it as a primary consideration; or if they did consider it what their reasoning process was in relation to it, R (on the application of TS) v Secretary of State for the Home Department (2010) EWHC 2614 (Admin) applied. That failure to have regard to the duty under s.55 made the detention of all the claimants unlawful. Their detention was neither inevitable nor probable if the Agency had complied with its statutory duty. Moreover, the claimants' detention was unlawful for reasons which were wider in scope than the failure under s.55. In relation to S, the risk that she would abscond was very low; no account was taken of the fact that she had never attempted to evade the authorities and had complied with the reporting requirements placed upon her. The detention of children should be a last resort, yet it was very hard to see what justification there could have been for detaining S and her children. It seemed that their detention was imposed by default; if all appropriate factors had been taken into account, it would not have been authorised. Even if that was wrong, their detention became unlawful by February 16 at the latest. At that point removal was going to take another three to four weeks, and the third claimant had become ill. The Family Welfare Forms for the claimants had not been correctly completed; that represented a significant breach of policy. The policy required that detention be maintained for the shortest possible period and the s.55 duty had to be considered at each detention review. Those aspects of the policy were ignored when detention was authorised for S after February 16. In B's case, there was some basis for concern that she would abscond, but that was not such a potent factor so as to justify detaining her and her child. Even if it was wrong that their detention was unlawful from its inception, by February 15, when there was a detention review, it was unlawful. Their detention was in direct conflict with the secretary of state's published policy. The claimants' art.8 rights were breached by the fact of their unlawful detention, not by virtue of their treatment at the detention centre. Further, their detention was arbitrary within art.5 for the same reasons that it was unlawful. The minimum level of severity necessary for the claimants' art.3 rights to be breached was not met (paras 37, 40, 52, 99, 161-164, 166-169, 171, 175, 177, 186-188, 195-196, 200-202, 206, 208).

Click here for the full judgment.

Note: This is yet another judgment from Wyn Williams defining the content of the duty under s55 of the Borders, Citizenship and Immigration Act 2009 and looks at its significance in the context of detention of children with families, a particularly important judgment in the light of the Government's promise to end children in detention - a promise that is still a 'work in progress.' See Wyn Williams J's judgment in TS v SSHD, the first to address the s55 BCIA 2009 point in substance.

R (AH) v Cornwall Council [2010] EWHC 3182 (Admin) (HHJ Seys Llewellyn Q.C.): A rather strange judgment on s20(1)(c), Children Act 1989 where it appeared that the Judge found that a child's wish for independent living brought s20 to an end in circumstances where the local authority judged that the child required something more supported, i.e. residential accommodation. Click here for judgment. It seems to be part of a move toward using resources as an argument against s20 in circumstances where the statutory provisions do not provide for the consideration of resources as a relevant factor as to whether a duty arose. See by analogy R v East Sussex County Council ex parte Tandy on how resources do not factor into consideration of whether a s19 duty under the Education Act arose. How that duty ought to be discharged once a need is identified and needs to be met may be within the discretion of the local authority.

Cases to watch

R (TG) v LB of Lambeth: This case was mentioned in the October update. The appeal was finally heard on 12th January 2011 before the Master of the Rolls. Judgment is pending. To remind, this is a case raising the question as to whether a Youth Offending Team social worker who arranged accommodation for a child she was supervising was performing a social services function and thus the child was / ought to have been treated as s20 accommodated under the Children Act 1989.

This case all too clearly illustrates the lack of coordination / understanding as between all the professional agencies which work with children - especially vulnerable children such as persistent youth offenders - to ensure that they are well advised of their entitlements under the Children Act 1989 and can make properly informed decisions as to their wish for social services involvement.

TG is not an unusual claims. The author of this update is aware of other claims which raise similar points but have settled in favour of the claimant young person without recourse to a substantive hearing. The judgment of TG will undoubtedly have a significant impact on how Youth Offending Teams work in the future with housing departments and children's services (which incidentally oversee YOT and in fact convene YOTs - thus query why a social worker in YOT is not exercising a social services function?)

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