London Borough of Croydon v Y
| Jurisdiction | England & Wales |
| Judge | Lord Dyson (Master of the Rolls),Macur,Lindblom LJJ |
| Judgment Date | 26 April 2016 |
| Neutral Citation | [2016] EWCA Civ 398 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 April 2016 |
Children - Children in need - Age assessment - Claimant arriving in United Kingdom unaccompanied and presenting as child - Local authority assessing claimant as adult - Claimant seeking judicial review of age assessment and refusing to be examined by local authority’s preferred experts - Whether local authority entitled to assessment by own experts - Whether refusal unreasonable - Whether claim to be struck out unless claimant consenting to examination
The claimant, a Nigerian national, arrived in the United Kingdom unaccompanied and claimed to be a child born on 25 April 1999. In March 2015 he was assessed by social workers for the local authority as being over 18 years of age. He sought judicial review of that age assessment. In September 2015 directions were given for, inter alia, a four-day fact finding hearing in February 2016, with permission for the claimant to rely on reports from his chosen experts. The claimant refused to consent to or to co-operate with dental and psychiatric examinations by the local authority’s experts and an age assessment by two of the authority’s social workers. The authority applied for an order that the claim be struck out or stayed unless the claimant consented to and co-operated with such examinations and assessments. The judge refused the application, primarily on the basis that the order sought was too draconian and the refusal was an appropriate use of his case management powers to ensure the efficient disposal of the claim.
On the local authority’s appeal—
Held, allowing the appeal, that on the local authority’s application the judge had been required to decide whether all or any of the three examinations which it sought were reasonably necessary for the proper conduct of the defence, two of which he had probably been satisfied were reasonably necessary; that the fundamental common law right of a defendant to defend itself, which applied to all litigation whether the case involved a private law or public law claim, included the freedom to choose the witnesses, particularly expert witnesses, which it would call in its defence; that the order sought by the authority was reasonably necessary to enable it to defend the challenge to its age assessment, which was an issue of fact for the court to determine on the evidence adduced before it; that the claimant’s refusal to co-operate with the local authority’s experts was unreasonable; and that, accordingly, unless the claimant promptly consented to and co-operated with the assessments sought by the local authority, the claim would be struck out (post, paras 14–24, 25, 26).
The following cases are referred to in the judgment of Lord Dyson MR:
A v Croydon London Borough Council
R (A) v Croydon London Borough Council (Secretary of State for the Home Department intervening)
Royal and Sun Alliance Insurance plc v T & N Ltd
Starr v National Coal Board [
Walbrook Trustee (Jersey) Ltd v Fattal
No additional cases were cited in argument.
The following additional cases, although not cited, were referred to in the skeleton arguments:
Abegaze v Shrewsbury College of Arts and Technology
Government Communications Headquarters v Bacchus [
Laycock v Lagoe [
R (A) v Croydon London Borough Council
R (A) v Liverpool City Council
R (AM) v Solihull Metropolitan Borough Council (AAJR)
R (B) v Merton London Borough Council
R (ES) v Hounslow London Borough Council
R (KN) v Barnett London Borough Council
R (N) Croydon London Borough Council
R (Z) v Croydon London Borough Council
APPEAL from the Upper Tribunal
By a claim form, filed with an application for urgent consideration on 16 March 2015, the claimant, Y, a Nigerian national was had been (i) detained between 26 November 2014 and 18 February 2015 under the fast-track detention scheme as an adult, (ii) on 30 December 2014 refused asylum by the Secretary of State for the Home Department, and (iii) on 12 March 2015 assessed by the social services department of the defendant local authority, Croydon London Borough Council, as clearly over 18 years old, sought judicial review of the detention and the refusal of his asylum claim, claiming to be a child and seeking by way of substantive relief, among other things, (1) a declaration that he was a child born on 24 April 1999, and in any event was younger than the age determined by the local authority; (2) a declaration that the local authority’s age assessment on 12 March 2015 had been unlawful; (3) a quashing order in respect of that assessment; (4) an order directing the local authority to continue to comply with their duties under the Children Act 1989 towards the claimant in providing support in accordance with his declared age; and (5) an order directing the local authority to undertake a lawful assessment and to produce a lawful care plan pursuant to its duties under the 1989 Act. By way of interim relief the claimant sought orders including (i) pursuant to article 13(2) of Parliament and Council Directive 2011/36/EU, that as a matter of European Union law the claimant was to be presumed a child until permission for the claim was determined or further order and (ii) pursuant to CPR r 39.2, that the identity of the claimant was not to be disclosed directly or indirectly. The Secretary of State for the Home Department was joined as an interested party. On 7 April 2015 Andrews J refused both permission to proceed with the claim and interim relief. On 19 May Walker J granted permission to proceed and granted the claimant interim relief. On 9 July 2015 Blake J quashed the Secretary of State’s refusal of asylum and stayed the claim for damages pending the resolution of the claimant’s challenge to the age assessment. On 17 July 2015, following a directions hearing on 1 July, Judge Allen made an order for directions, including (i) a four-day fact finding hearing, later fixed for 16 February 2016, to determine the claimant’s date of birth and (ii) that the claimant be granted permission to rely on the expert reports of his choice.
By an application dated 20 November 2015 the local authority applied for an order that the challenge to the age assessment be struck out unless the claimant consented to and fully co-operated with a dental and a psychiatric assessment by the local authority’s experts and an age assessment by two of the local authority’s social workers. On 8 December 2015 Upper Tribunal Judge McGeachy refused the application and permission to appeal.
By an appellant’s notice filed on 21 December 2015 the local authority appealed, with permission granted by the Court of Appeal (McCombe LJ) on 12 January 2016, on the grounds, among others, that the judge (1) ought to have found that the principles in Starr v National Coal Board [1977] 1 WLR 63 applied, and had been wrong to find that the Starr principles only applied to cases (a) where it was conceded that the requested evidence was necessary; (b)...
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