Petition Of Isa For Judicial Review And Answers
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2012] CSOH 134 |
| Published date | 24 August 2012 |
| Date | 24 August 2012 |
| Court | Court of Session |
| Docket Number | P1221/10 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 134 | |
| P1221/10 | OPINION OF LORD STEWART in the Petition of ISA Petitioner; for Judicial Review of a decision by Angus Council dated 16 September 2010 that the petitioner ISA is over the age of 16 years and of a decision consequent thereon to transfer the petitioner to Glasgow and Answers for Angus Council Respondents: ________________ |
Petitioner: Ms Stirling, advocate; Drummond Miller LLP
Respondents: A Smith QC; Tods Murray LLP
24 August 2012
[1] This is an application for a fact‑finding, age assessment judicial review presented by a young Nigerian male visa‑overstayer, petitioner ISA. On or about 9 April 2010 petitioner ISA and another young Nigerian male stated to be his brother, petitioner ALA, also a visa‑overstayer, came into the de facto care of the respondents' Social Work Department in circumstances that I shall describe below. At that time petitioner ISA claimed to be 11 years old. He was in possession of a birth certificate bearing to show his date of birth as 6 November 1998. The United Kingdom Border Agency [UKBA] visa application record shows that when the application was made the petitioner held a genuine Nigerian passport giving his date of birth as 6 November 1993. The birth certificate would make him 13 years old at today's date and the passport would make him 18.
[2] The respondents are a local government authority with responsibilities for children in need under the Children (Scotland) Act 1995. In terms of the 1995 Act a "child" is "a person under the age of 18". On 16 September 2010 the respondents carried out an age assessment. They assessed petitioner ISA's age at "sixteen years plus". In context the clear meaning of this assessment is that petitioner ISA was accepted by the respondents as being a "child" within the meaning of the Children (Scotland) Act 1995, namely "a person under the age of 18".
[3] Petitioner ISA's application seeks (a) declarator that the respondents' age assessment is "wrong as a matter of fact" and that the age assessment was procedurally unfair; (b) reduction of the age assessment; (c) declarator that the petitioner is a child for the purposes of chapter 1 of Part II of the Children (Scotland) Act 1995, being a person under the age of 18 years and that he was born on 6 November 1998, or 5 December 1996 or on 6 November 1996 or (after amendment) on such date after 6 November 1993 as the court thinks fit; (d) declarator that the respondents' decision to transfer the petitioner to the YMCA Glasgow is unlawful; (e) reduction of the decision to transfer the petitioner; and various ancillary orders. Petitioner ALA also seeks judicial review of the respondents' assessment of his age. The applications have been heard together.
[4] Having heard proof followed by counsel's submissions culminating on 28 October 2011 I made avizandum. I have now decided to refuse the petition for petitioner ISA. The respondents' decision to transfer the petitioner to Glasgow in the autumn of 2010 has been completely overtaken by events; and Ms Stirling, counsel for the petitioner, made very limited submissions about that matter. The Wednesbury attack on the fairness of the respondents' age assessment process been not insisted on. The respondents' age assessment found petitioner ISA to be a child i.e. to be under 18 years of age. My own view on the information put before me is that petitioner ISA was probably about 151/2 years old at the time of the respondents' assessment which found the petitioner to be "16 +". The difference is not material, so far as the issues raised in these proceedings are concerned, and does not justify declaring the respondents' assessment "wrong as a matter of fact" in a situation where better evidence may yet become available.
[5] There is no known technique or combination of techniques for determining age at a particular moment in time [T Smith and L Brownlees, Age Assessment Practices: a Literature Review and Annotated Bibliography, UNICEF Discussion Paper (New York, 2011)]. Margins of at least plus or minus two years are routinely quoted. In 1999, the Royal College of Paediatrics and Child Health (RCPCH) issued the following guidance for paediatricians [Assessment of the Age of Refugee Children (RCPCH, London, 1999)]:
"In practice, age determination is extremely difficult to do with certainty and no single approach to this can be relied upon. Moreover for young people aged 15 - 19, it is even less possible to be certain about age. There may also be difficulties in determining whether a young person who might be as old as 23 could, in fact, be under the age of 18. Age determination is an inexact science and the margin of error can sometimes be as much as 5 years either side. Assessments of age measure maturity, not chronological age. However, in making an assessment of age, the following issues should be taken into account..."
[6] The guidance just quoted addresses the issues of "spot" assessments at a particular moment in time. Unusually, in the present cases, there have been successive paediatric assessments. The most useful pieces of information available to me are the finding of Dr Birch, paediatrician, about the petitioners' growth over a six month period and the opinion of Professor Cole, medical statistician, as to the petitioners' likely ages derived from the fact and rate of growth. As a rule human males have stopped growing by the age of 18, the age at which they become statutory adults. I am told that, if there is growth, it is likely that the subject is not an adult. It is for consideration whether asylum seekers claiming to be children should have their height measured on arrival or presentation and at six‑month intervals thereafter [see also AM, R (on the application of) v Solihull Metropolitan Borough Council (AAJR) (Rev 1) [2012] UKUT 118 (IAC) (14 June 2012), § 17].
[7] The story of the petitioners is worth telling in some detail for the way it illustrates the challenges that can face asylum seekers claiming to be children without reliable age documentation, the challenges that face the public authorities who have to deal with them and the challenges that face judicial decision makers when required to undertake fact-finding age assessment judicial reviews. These challenges are connected with the Secretary of State's policy of granting unaccompanied asylum‑seeking children [UASCs] so‑called discretionary leave to remain until they are adults. By the time they are adults, or are, should I say, definitively determined to be adults, such claimants may hope to have acquired ECHR Article 8 (family and private life) rights in the United Kingdom which prevent their removal even if their asylum claims have no merit. The other advantage of being found to be a UASC and of being accommodated by a local authority as a child in need is that formerly "looked after" children are entitled to local authority after-care services and support until the age of 25.
Age assessment judicial reviews
[8] Fact-finding judicial reviews for age assessment purposes are authorised by the decision of the Supreme Court in R(A) v Croydon London Borough Council [2009] 1 WLR 2557. This is a decision on the Children Act 1989, a statute which does not extend to Scotland. In terms of section 20(1) of the 1989 Act, the threshold qualification for obtaining accommodation from a local authority in England & Wales is that the applicant is "a child", meaning "a person under the age of eighteen". As I understand R(A) v Croydon London Borough Council, the question "child or not?" is a pseudo‑jurisdictional issue that has to be resolved before the local authority can be seised of the question whether, in relation to the applicant, it is bound to exercise its power to provide accommodation. If the local authority's assessment of age is disputed, the question whether the applicant is a child is an issue of fact to be determined by the court. Baroness Hale of Richmond JSC said, at paragraph 46:
"... 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."
Lord Hope of Craighead DPSC said, at paragraph 51: "It seems to me that the question whether or not a person is a child for the purposes of section 20 of the 1989 Act is a question of fact which must ultimately be decided by the court." The Supreme Court ruled that the remedy should be sought by way of judicial review in the Administrative Court, the review procedure being adapted to determine disputed questions of fact [Lady Hale at § 33 with whom the other Justices agreed].
[9] How does this work in practice? The Court of Appeal of England & Wales has reacted to the Supreme Court's ruling first by indicating that applications ought to be transferred from Administrative Court to the tribunal system and then by ruling that: "No court should in future decide a case on the basis of evidence from Dr Birch." Dr Diana Birch - whom in a previous opinion I mistakenly called Dr "Ruth" Birch - is the paediatrician without whose expert report the application of A would probably never have got to the Supreme Court and who is currently the paediatric expert of choice for age assessment claimants [A v London Borough of Croydon [2009] EWHC 939 (Admin) (08 May 2009); R (FZ) v London Borough of Croydon [2011] EWCA Civ 59 at §§ 4, 16 and 31; R (FM) v Secretary of State for the Home Department and Anr, Court of Appeal, Civil Division, C4/2011/1274, per Sir Richard Buxton (9 August 2011); L v Angus Council 2012 SLT 304 at § 133].
[10] It has emerged that there is a question mark over the jurisdictional competence of the Upper Tribunal to resolve all the issues which can arise [R (on the application of JS) and R (on the application of YK) v Birmingham City Council (AAJR) [2011] UKUT 505 (IAC) (08 February 2012) at §§ 7-14]. One of the reasons why the...
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