Age dispute challenges post A v Croydon in the Supreme Court

Friday 10 September 2010

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1. A decision on age for an unaccompanied young person is a gateway decision used for the purposes of determining eligibility for services and accommodation under sections 17 and 20 of the Children Act 1989 and has important legal implications on the way the UK Border Agency decides a young person’s immigration status.

2. Until last year, the leading case in this area was the case of R (B) v Merton LBC [2003] EWHC 1689 Civ in which Stanley Burnton J (as he then was) set down broad guidelines in respect of how age ought to be assessed in respect of unaccompanied minors who arrive in the UK without documentary evidence to prove their age.

3. Until last year, challenges to social services age assessments could only be brought by and large by way of judicial review applying public law principles of Wednesbury unreasonableness (although it must be noted that immigration practitioners have for some time actively pursued issues as to age disputes in the immigration appeals tribunals and seeking findings on age from immigration judges).

4. The Supreme Court’s judgment in A v Croydon [2009] UKSC 8 significantly changed the way the courts now approach judicial review claims in respect of age disputes.

5. Age is an objective fact. Where a dispute remains between the young person and the local authority following an age assessment, it falls to be determined by the Court.

The new jurisdiction of the Administrative Court

6. In giving the leading judgment for the Court, Lady Hale said this at §26-27:

26. These days, Parliamentary draftsmen are more alive to this kind of debate. The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is “in need” requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and “Wednesbury reasonableness” there are no clear cut right or wrong answers.

27. But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.

7. The result of the judgment is that: “if live issues remain about the age of a person seeking accommodation under section 20(1) of the 1989 Act, then the court will have to determine where the truth lies on the evidence available”: see §46 of Baroness Hale.

What does this mean?

8. A few points of importance to note:

  • That A v Croydon confers on the Administrative Court a jurisdiction to make a finding of fact as to age does not provide a defence to the local authority to not do a Merton-compliant assessment of age. See Lady Hale at paragraph 33: “the better the quality of the initial decision-making, the less likely it is that the court will come to any different decision upon the evidence.”
  • Merton still appliesin respect of how an age assessment is conducted and issues relating to procedural fairness and natural justice still are relevant in any claim for judicial review in the new jurisdiction in respect of an age challenge.
  • Arguable claim: i.e. is it arguable that the child is as claimed a child. See Holman J in F v Lewisham [2009] EWHC 3542 (Admin).

How it will work?

9. As far as I can tell there has only been one full age assessment trial (whose transcript is publicly available). See MC v Liverpool City Council [2010] EWHC 2211 (Admin) before Langstaff J.

10. It offers a glimpse into how these trials will look like but do note:

  • not a case with medical evidence so unclear how the courts will deal with paediatric reports. Holman J did state in F v Lewisham that they can be relied upon. The question is weight.
  • It was a matter of whether a child or an adult so the claimant gave evidence in open court. Whether witness evidence ought to be so given by the claimant in a case where it is agreed that a child is a child, just a difference of age, remains to be seen.
  • Social workers in both age assessments were called to evidence. Arguably, in the context where one age assessment was withdrawn and a re-assessment carried out, a local authority should not be able to rely on evidence of social workers who were accepted to have carried out an age assessment which has been withdrawn. In MC, there was no withdrawal of the first assessment.
  • Case was not heard by a judge with a dual family division and administrative court ticket, although it is arguable that in a vulnerable child’s case, for example, a trafficked age disputed minor, this issue ought to be considered.
  • Even with 5 witnesses (claimant and 4 social workers), the matter took almost a full 3 days. It may be that as the jurisdiction develops, some of the practices of agreeing facts and evidence, in existence in the civil jurisdiction, ought to be imported to effectively manage the time estimates of these trials.

Other issues to consider?

11. Role of Benefit of the doubt / Burden of Proof: Does this matter post-A v Croydon. Some would argue, just let the court decide. However, Lady Hale’s comment that the better the quality of decision, the less likely litigation will follow. Principles of ‘benefit of doubt’ play into the assessment of credibility of child. Worth considering the kinds of assessment guidelines that the UKBA have to adopt in assessing the credibility of a child as opposed to an adult.

12. See also divergent views:

  • B v Merton – Stanley Burnton J did not feel it was appropriate to talk about burden of proof.
  • AW v Croydon – where permission to appeal against the decision of Collins J in the first instance, one ground being the argument that the principle of the "benefit of the doubt" means that the local authority should start its factual appraisal of age affording the child the benefit of the doubt. This is arguably akin to placing the onus of disproving age on the person disputing an asserted fact made by the applicant child. Appeal was conceded by the local authority and by consent, decision of Collins J set aside and fact of age is remitted to the High Court for a full fact-finding hearing.

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