R (CJ) v Cardiff County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 17 January 2011 |
| Neutral Citation | [2011] EWHC 23 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 January 2011 |
| Docket Number | Case No: CO/2490/2010 |
[2011] EWHC 23 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING AT CARDIFF
Before: Mr Justice Ouseley
Case No: CO/2490/2010
The Queen on the Application of
Mr C Buttler (instructed By Tv Edwards Solicitors) For The Claimant
Mr Matt Hutchings (instructed By Legal Services Department For Cardiff County Council) For The Defendant
Hearing dates: 22 nd, 23 rd & 24th November 2010
Mr Justice Ouseley :
Introduction
The Court, in this judicial review, has to decide whether CJ is a minor, aged 17, or an adult now probably 20 plus, who was at least 18 on arrival in the UK in August 2008. If he was a minor when he arrived, the Court will have to decide when he was born because of the implications which his precise date of birth has for duties owed under the Children Act 1989, even if he is now over 18. He claims that he was born on 20 September 1993. Cardiff County Council, to where he was dispersed, assessed him to be 5 years older.
CJ is an Afghan national who was born and lived in Iran until he left towards the end of 2007, and eventually made his way to the UK. He entered the country illegally on 27 August 2008, and claimed asylum. At his screening interview on 28 August 2008, he gave his birth date, at least as translated, adjusted to the Gregorian calendar and then noted on the record as 1 April 1993, and his age as 15. Croydon LBC undertook a summary visual age assessment and concluded that he was over 18. The two events took place on the same date; but their order is uncertain.
The Claimant was dispersed to Cardiff, where he underwent an initial age assessment in October 2008, which concluded that he appeared to be over 15. Verification was awaited of a residence card he had provided. The Claimant was placed in foster care. UKBA then said that it thought that the residence card was false, and the foster carer told the Council that he thought that the Claimant was well into his twenties. Accordingly, Cardiff County Council carried out an age assessment produced on 11 December 2008, concluding that he was over 18, with an estimated birth date of 19 September 1988. This simply reflected the view that he was five years older than he claimed. But in July 2009, following the receipt of further documentation which tallied with the date of birth on the residence card, the Council treated CJ as a child, and he was eventually placed in foster care on 14 August. On 17 August, following deteriorating behaviour in his foster home, and violence to the police, the Claimant was detained under the Mental Health Act 198In the course of his time in the mental hospital, he appeared to staff to be much older than 15 and in his early twenties. The Council decided to do a further age interview. In the course of this, the Claimant asserted that his birthday was in 1988; he repeated this to staff saying that he had lied about being 15 in order to obtain a visa. He now says that he was lying about that in order to achieve his release from hospital.
The final decision was made on 25 August 2009. It was that he was over 18. Appropriate adult services were contacted. He was discharged from hospital on 28 August 2009. It is the decision of 25 August 2009 which is now challenged. There is no record of what age the Council actually thought he was at that stage; but it appears that it was reverting to its earlier decision of December 2008.
After discharge, the Claimant was placed in NASS accommodation, from which he was evicted three weeks later. But on 2 March 2010, Mr Timothy Corner QC, sitting as a Deputy High Court judge, ordered the Council to provide him with accommodation and support pending determination of his application for judicial review.
In R(A) v London Borough of Croydon [2009] UKSC 8, [2009] 1WLR 2557, the Supreme Court held that the question under the Children Act of whether an individual was a child or not was, upon challenge by judicial review, one of fact for the decision of the Court itself. The Court was not to answer that question by reviewing the Council's decision for lawfulness on traditional review grounds. It is silent as to who bears the burden of proof.
The Claimant gave oral evidence, through an interpreter. The credibility of his evidence about his life in Iran, his travels to the UK, and of his explanations for the divergent ages he had given here, was important to the Council's case. The Council relied strongly on what he said in Court, and how it contrasted with what he had said in his screening interview and age assessment interview in December 2008, as a counterweight to the strongly contested evidence of the document expert called by the Claimant. His demeanour when giving evidence was relevant to how much weight I should give to the view as to his age expressed by his case worker at the Welsh Refugee Centre, and litigation friend.
The Council called Mr Nedsky, its social worker who had most dealings with him, a nurse and a police officer who also had had dealings with him, as well as a document expert from the UKBA.
The interviews and assessments
The first point at which the Claimant told the UK authorities about his age was at his screening interview. I disregard the evidence from it that he said that he was born on 1 April 1993, in view of the fact that quite apart from any interpretation difficulties which clearly existed, (CJ appears to have had an Uzbek interpreter and Uzbek was not his first language although one he understood), there are difficulties in transposing dates from the Iranian or Afghanistan calendar into the Gregorian calendar which would prevent reliance on the precision of that date without very clear evidence. The two languages noted as the only languages which he spoke did not include Farsi which was the language in which he gave evidence and was one which he spoke fluently. That birth date was not important to the Council, but the Council relied on other aspects of the screening interview.
He told the interviewer that he was 15; but there was no adult with him at the interview. He was a shoe repairer from Kharameh. He described his family, and their ages. He gave a brief description of his journey from Iran to the UK: leaving Iran on foot for Turkey where he stayed for 3 months, then to Greece by inflatable dinghy for 4 months, then to Italy, by train to France, and to the UK holding onto the underneath of a lorry. In England he met a Pakistani who provided a ticket to him, free, to travel to London. A friend had introduced him to an agent, Ali Irani, to whom he paid $500 to get him to Turkey. He had worked in a tailor's shop in Turkey earning $7–800. His intention had been to come to Britain because he loved the country and its football teams. He had gone to Turkey and then had come to the UK to work to earn money to help the family and his mother in her treatment for her heart condition; he could not go back to Afghanistan.
On the same day as the screening interview, Croydon LBC undertook a brief visual age assessment. This was important because it led CJ to contact someone in Iran; he says that his father sent him the disputed residence card, and the two other relevant documents. I accept that the envelope, the photocopy of which I have seen and the original of which is with the Home Office, shows that the residence card arrived from Iran on 17 September 2008 at the Immigration Advisory Service. The other two arrived later but before 9 October 2008. These documents give his date of birth as 20 September 1993, after adjusting to the Gregorian calendar.
Next, following dispersal to Cardiff, the Council carried out an initial assessment of the Claimant's age on 9 October 2008. The birth date noted was 1 April 1992, but there is no evidence that that is what the Claimant said rather than it being an inaccurate transcription of the date of birth from the screening interview. The assessment was carried out in the light of the residence card, and a request from the WRC for an appropriate placement. Mr Nedsky was present and agreed with the assessment carried out by the primary assessor Mr Dawkins.
The Claimant gave a history of his travels for the purposes of that assessment which differed to a degree from what he said at his screening interview: he had stayed with his brother in law in Turkey but left because the brother in law wanted him to work; he had to pay an agent to leave Turkey so he stole the money from his brother in law. He left Greece because everyone seemed to be doing so; and in Italy he was stopped by the police who let him go when he said that he was 15. He borrowed money from a friend to travel to Calais by train. He came to the UK because everyone he met said that the UK was the best place to go to. The outcome was that the social worker was of the view that the Claimant's appearance was that of a "young person over the age of 15" and, since the documents were being verified and he had been assessed as being 18 by Croydon, the case should only be re-referred if the documents were assessed as valid.
Mr Nedsky said in evidence that although the assessment was based on a fairly long interview, it was only slightly more comprehensive than Croydon's, as it was largely based on physical appearance and demeanour.
Nonetheless, in November 2008, the Council placed the Claimant in foster care. This was because UKBA gave the impression that it had verified the Claimant's identity or residence card, the date of birth on which meant that he was now just...
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