R (M and another) v Lambeth London Borough Council and another
| Jurisdiction | England & Wales |
| Judgment Date | 18 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1445 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2008/1531; C1/2008/1532 |
| Date | 18 December 2008 |
[2008] EWCA Civ 1445
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE BENNETT
CO/2130/2007 and CO/2334/2008
The Rt Hon. Lord Justice Ward
The Rt Hon Lord justice Maurice kay and
The Rt Hon Sir John Chadwick
Case No: C1/2008/1531; C1/2008/1532
Mr Ian Wise (instructed by Harter & Loveless) for the appellant A
Mr Timothy Straker Q.C and Mr Christopher Buttler (instructed by Bennett Wilkins) for the appellant M
Mr Charles Béar Q.C. and Mr Jon Holbrook (instructed by Sternberg Reed) for the London Borough of Lambeth
Mr Bryan McGuire and Ms Peggy Etiebet (instructed by Croydon Legal) for London Borough of Croydon
Mr Daniel Stilitz and Ms Deok Joo Rhee (instructed by the Treasury Solicitor) Secretary of State for the Home Department
Mr John Howell Q.C. (instructed by Anna Fairclough) for Liberty
Hearing dates: 17, 18 and 19 September 2008
Judgement
Lord Justice Ward:
Introduction
Man or boy? That is the question, easy to ask but not so easy to answer, that is with increasing frequency confronting the social workers of some local authorities because, pursuant to the Age Assessment Joint Working Protocol between the UK Border Agency and the Association of Directors of Social Services, disputes as to age of young asylum seekers are to be resolved by the Social Services Department in order to settle who has to provide accommodation for them. The National Asylum Support Service (NASS) must provide for an adult but the responsibility for a child, i.e. one who is under 18 years, lies with the local authority by virtue of Part III of the Children Act 1989.
In the cases before us, the London Boroughs of Lambeth and Croydon (“Lambeth” and “Croydon”) decided respectively that the appellants M and A were adults and so they refused to provide accommodation for them. As it happened, in the course of M's asylum claims, the AIT came to a different conclusion and decided that M was still a child. M and A sought the judicial review of the respective decisions and three preliminary issues were ordered to be tried:
“i) Were the age determinations of each claimant by the respective local authorities contrary to section 6 of the Human Rights Act 1998 in that they were contrary to the procedural protections of Article 6 and/or Article 8 of the European Convention on Human Rights?
ii) Is the question whether an individual is a child for the purposes of section 17 and 20 of the Children Act 1989 one of precedent fact, which the court may review on the balance of probabilities?
iii) Was the departure of the London Borough of Lambeth from the decision of the AIT and the Secretary of State on M's age lawful?”
On 20th June 2007 Bennett J held in answer to the first question that the age determinations by the respective local authorities were not contrary to Article 6(1) and that, in respect of Article 8, which A alone sought to invoke, his age determination was not a “private right” and thus Article 8 was not engaged. He answered “No” to the second question and “Yes” to the third. He gave permission to appeal on the first two issues. There is no appeal in respect of the third.
A little more detail
M's case
He arrived in the United Kingdom from Libya on 1st December 2006 and claimed asylum. He said he was born on 15th December 1989 but his age was disputed by the immigration officers and the matter was referred to Lambeth. On 14th December 2006 two social workers carried out an assessment and concluded on the basis of their visual assessment that M was over 18 years old. On 17th January 2007 the SSHD refused M asylum. On 2nd February 2007 Dr Michie, a consultant paediatrician, assessed his age as more likely than not to be 17. Lambeth considered the report but was not persuaded to change its mind. On 13th March M began judicial review proceedings. In response, Lambeth produced a “supplementary” report which provided further reasons for its original conclusions and stated that it considered M to be over 20 years old. By consent the parties agreed to conduct a further age assessment and Dr Michie responded to questions put to him by Lambeth. Having considered his response, Lambeth on 12 July again assessed M as over 18. Meanwhile the asylum application was progressing through the A.I.T. and, as I have said, there it was held that M was a child. M asked Lambeth to reconsider his age in the light of that decision but on 12th December Lambeth maintained their view that M was over 18. On 7 May 2008 a second consultant paediatrician, Dr Birch, concluded that statistically there was an 86% probability that M was under 18.3 years on the material date, 14 December 2006.
A's case
He arrived in the United Kingdom on the back of a lorry from Afghanistan on 13th November 2007. He maintained that his date of birth was 8th April 1992 which would have meant he was only 15 years old on entry. On 14th November 2007 he applied for asylum at Croydon and was interviewed by the Home Office who assessed him to be over 18. He was accordingly referred to Croydon's Social Services Department. On 22nd November 2007 he was interviewed by two social workers. He spoke no English. No one was present to assist him. Croydon assessed him to be an adult and he was accordingly referred to the Home Office for NASS support. On 7th December the Home Office confirmed his being over 18 years old and that they would provide NASS support until his asylum claim was determined. A week later A's solicitors wrote to Croydon making three points: first that A's older brother was supported as a child by Westminster City Council, secondly that A's birth certificate showed him to be 16 and thirdly the age determination was contrary to Article 6. On 16th January 2008 Dr Birch assessed him to be between 15 and 17 years old, calculating him to be 15 years 10 months which was consistent with his stated age of 15 years 9 months. That opinion was served on Croydon. Judicial review proceedings were issued on 7th March 2008. On 12th March 2008 Croydon responded at length to Dr Birch's report concluding that he did not provide any significant evidence to support A's claim. They therefore maintained their view that he was an adult. On 26th March 2008 Dr Birch confirmed her opinion but Croydon were unmoved.
Age assessments
There is no statutory or procedural guidance issued to local authorities as to how to conduct an assessment of the age of a person claiming to be under 18 for the purpose of deciding on the applicability of Part III of the Children Act 1989. The Guidelines for Paediatricians published in November 1999 by the Royal College of Paediatrics and Child Health state:
“In practice, age determination is extremely difficult to do with certainty, and no single approach to this can be relied on. Moreover, for young people aged 15–18, 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 five years either side. … Overall, it is not possible to actually predict the age of an individual from any anthropometric measure, and this should not be attempted. Any assessments that are made should also take into account relevant factors from the child's medical, family and social history.”
The difficulties will be compounded when the young person in question is of an ethnicity, culture, education, background and dietary regime that are foreign and unfamiliar to the decision maker. In R (on the application of B) v Merton London Borough Council [2003] EWHC 1689 (Admin), [2003] 4 All E.R. 280, Stanley Burnton J. held when dismissing a claim for the judicial review of an age assessment:
“36. The assessment of age in borderline cases is a difficult matter, but it is not complex. It is not an issue which requires anything approaching a trial, and the judicialisation of the process is in my judgment to be avoided. It is a matter which may be determined informally, provided safeguards of minimum standards of inquiry and of fairness are adhered to.
…
50. In my judgment, the court should be careful not to impose unrealistic and unnecessary burdens on those required to make decisions such as that under consideration. Judicialisation of what are relatively straightforward decisions is to be avoided. As I have stated, in such cases the subject matter of decision is not complex, although in marginal cases the decision may be a difficult one. Cases will vary from those in which the answer is obvious to those in which it is far from being so, and the level of inquiry unnecessary in one type of case will be necessary in another. The Court should not be predisposed to assume that the decision maker has acted unreasonably or carelessly or unfairly: to the contrary, it is for a claimant to establish that the decision maker has so acted.”
Concerns are, however, still raised about the procedure that is adopted. In March 2007 the Home Office published proposals for the fundamental reform of the way it supported and managed unaccompanied asylum seeking children and there was a wide ranging consultation. In January 2008 the UK Border and Immigration Agency published Better Outcomes: the Way Forward. Key reform 4 – putting in place better procedures to assess age in order to ensure children and...
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