R N v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judgment Date | 16 March 2011 |
| Neutral Citation | [2011] EWHC 862 (Admin) |
| Date | 16 March 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/14787/2009 |
[2011] EWHC 862 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Neil Garnham QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
CO/14787/2009
MR C BUTLER appeared on behalf of the Claimant
MR H HARROP-GRIFFITHS appeared on behalf of the Defendant
THE DEPUTY JUDGE: I heard argument in this case yesterday and this morning. I set out the relevant background in a short judgment I gave yesterday morning on the defendant's application for an order that they be permitted to adduce out of time a report from Dr Stern. It is not necessary to repeat that background here.
It suffices for me to indicate that on Monday evening there was agreement between the parties that the claimant's date of birth could be treated as being 1 April 1995 but disagreement as to the form of the resulting order. The claimant sought a declaration that that was in fact his date of birth. The defendant declined to agree to any such declaration. In the circumstances, I indicated that I would need to be taken to the documentary evidence and to hear submissions on the point before I could say whether or not such a declaration would be appropriate. With the agreement of both counsel I indicated that if I found the declaration was appropriate I would make it, if I did not the case would have to be adjourned so that oral evidence could be heard.
The grant of a declaration cannot, in my view, be given as a matter of course, especially in circumstances such as the present when the declaration has potential effects on third parties who are not before the court. In the present case, for example, such a declaration may be of considerable significance in the claimant's dealings with the Home Office. Having heard the careful and skillful submissions of Mr Butler for the claimant, and Mr Harrop-Griffiths for the defendant, I am now in a position to reach a decision on this issue.
I deal first with three earlier decisions of the courts relevant to the matter before me which identify the principles. First, the Supreme Court decision in R(A) v London Borough of Croydon [2009] UKSC 8. That case concerned a point of principle whether a court, faced with a challenge to a local authority's decision under section 20(1) Children Act 1989, should exercise a review jurisdiction, and ask itself whether the local authority's decision was one properly open to it, or alternatively an original jurisdiction, and ask itself whether in fact the claimant was a child. Lady Hale, in a judgment with which the other members of the court agreed, said at paragraph 46 that:
"If live issues remain about the age of a person seeking accommodation under section 20(1) … then the court will have to determine where the truth lies on the evidence available".
In other words, the court had to exercise an original jurisdiction and determine the precedent fact: was the claimant a child?
In F v Lewisham [2009] EWHC 3542 Holman J was considering an application for permission to apply for judicial review in a number of these cases. He had to adjudicate on competing contentions as to whether the effect of the judgment in A v London Borough of Croydon was limited to deciding whether the claimant was a child on a particular date or whether that judgment meant that in these cases the court would have to determine the claimant's date of birth. Holman J held, at paragraph 11:
"For the purpose of giving directions today I have identified the issue in all these cases as being '… the case would be listed for a fact finding hearing to determine whether or not on the relevant date the claimant was a child and if so, his date of birth'".
He went on to hold in paragraph 16 that:
"It seems to me patent that in all these cases the standard of proof is the ordinary civil standard of a balanced probability."
That leads to the obvious question material for present purposes of how a court is to determine a date of birth of a child in circumstances such as these, and, more particularly, how it is to apply the balance of probability test usually employed in civil cases to determine facts to cases such as the present.
In MC v Liverpool [2010] EWHC 220 Langstaff J was faced with a similar question. At paragraph 5 of his judgment he referred to Holman J's decision in C and said this:
"At paragraph 16 Holman J made reference to the burden of proof. The standard of proof, he said, was the ordinary civil standard of balance of probability. I accept that. But he did not purport to determine upon whom the burden of proof lay. It seems to me … that the process is one of assessment. It is not in reality choosing between one of two alternatives, one or other of which must represent the fact. A person's age, if it is to be assessed, can fall within a range".
On the facts of the case before him Langstaff J went on to say this at paragraph 19:
"I think that the best way of reflecting these imprecisions is to say that he should be taken as having an age 6-months younger than that which the local authority have assessed. It leaves the 24th of the month unchanged but makes it 24 September 1992. I appreciate that that almost certainly will not be his actual date of birth but, for the reasons I have given, on the evidence before me it is the evidence on which it is most fairly and properly, in my view, to be assessed."
If I may say so, with respect, Langstaff J accurately identifies the problem in these cases and suggests a proper solution. A court faced with a question like this is not in truth considering whether it has been shown on the balance of probabilities that a particular date is the true date of birth. The likelihood will be that, if there is a possible range of birth dates, which ever one is selected will, on the balance of probability, not be the correct one. In other words, in such circumstances it will be more likely than not that the date selected is wrong. What in fact the court is doing is making an assessment of what is the most likely date of birth. It is comparing the likelihood of a wide potential range of dates and picking the one which the evidence suggests is more likely than the rest to be accurate. Where all other factors are equal, that may well be the middle of the appropriate range, because as one moves to the extreme ends of the range proximity to error increases.
With that in mind, I turn to the evidence in the present case. There is here, in truth, no evidence at all as to precisely when FN was born. He does not know his birthday, nor, it seems, does his mother. To western ears that may seem surprising. It appears it would not be surprising to Afghanis. The nearest thing to an official record relating to FN's birth is the Taskira certificate, or Afghan identity form. That document, of which we have a photocopy, is translated at [AA/66]. Beside the rubric "date of birth and age" is written the following:
"On the basis of his appearance, ascertained as 10 years old on 13/85".
/85 is the Afghan calender reference to a year that begins in March 2006 in the Gregorian calender.
The defendants in the present case do not accept the reliability or authenticity of that document but, having heard the explanation of how it was obtained, I am prepared to accept that it is probably genuine. In fact, however, it takes matters very little further forward. All it suggests is that, in about 2006, FN looked to some Afghani official as if he were about 10. That is evidence of his date of birth of only very modest weight. Mr Butler says it can be inferred that his mother must have agreed but there is precious little to support such an inference. The overwhelming impression left by all I have heard is that birthdays are not events of great moment in Afghanistan, and I am prepared to read into that document no more than that in about 2006 FN looked about 10 years old.
FN left Afghanistan for the UK in about October 2008. He travelled, largely in the back of a lorry, to the UK, where he arrived, after a 5 month trip, on 14 April 2009. On arrival he claimed asylum. He reports that his mother said that he was 13 years and 3-months when he left Afghanistan. She is alleged to have based that assertion on the Taskira certificate. If she was right, that would give FN a date of birth of about September 1995.
On his arrival in the UK, FN was referred by the Home Office to the London Borough of Croydon, the defendants. Croydon carried out age assessments on him on three occasions, his age being highly material to his entitlement to services now and in the future. Those three assessments have been subject to critical analysis in the course of hearing.
The first assessment was conducted on 17 April 2009. Mr Butler is critical of the procedure adopted but, in my judgment, much more powerful is his criticism of the substance of the report. In essence there is neither evidence nor analysis to support the conclusion reached that FN was then 15 years old rather than the 13 he claimed, beyond the fact that this was the social worker's impressionistic opinion. That that was his view after meeting and talking to the boy for 30 minutes is some evidence but, in my judgment, evidence of very little weight.
The second age assessment was little better. It was conducted on 7 September 2009. It lasted somewhat longer. it too amounts to an opinion based on very little evidence beyond impression that FN was 15 plus.
If this was an ordinary judicial review challenge I would have no hesitation in...
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