R (on the application of CJ) v Cardiff City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Mr Justice Lloyd Jones,Lord Justice Laws |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1590 |
| Docket Number | Case No: C1/2011/0868 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2011 |
[2011] EWCA Civ 1590
IN THE COURT OF APPEAL (CIVIL DIVISION)
(Sitting at Cardiff) ON APPEAL FROM
THE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT (MR JUSTICE OUSELEY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Pitchford
and
Mr Justice Lloyd Jones
Case No: C1/2011/0868
P Brown QC and C Buttler (instructed by TV Edwards LLP —Solicitors) for the Appellant
M Hutchings (instructed by Cardiff City Council (Raqeiya Riaz) for the Respondent
The appellant, an Afghan national who was living in Iran, entered the United Kingdom illegally on 27 August 2008. In a claim for judicial review he sought a declaration that he was owed duties by the respondent, Cardiff City Council, under the Children Act 1989. It was common ground that if the appellant was aged under 18 when he entered the UK those duties were owed. Furthermore, if the appellant was under 18 on entry the local authority owed duties towards him until he was aged 25 years. On or about 24 August 2009 the local authority assessed the appellant as aged 18 or over on entry to the UK.
In R (A and M) v Croydon and Lambert Borough Councils [2009] UKSC 8, [2009] I WLR 2557, the Supreme Court settled the question whether, in the event of a challenge to the decision of a local authority as to the claimant's age, the High Court was required either to reach its own decision as to the claimant's age or, alternatively, the challenge was by way of review of the local authority's assessment on Wednesbury principles alone. Baroness Hale gave the leading judgment with which the other members of the Supreme Court agreed. At paragraphs 26 and 27 Baroness Hale explained the difference in approach required for the evaluative judgment whether a child was "in need" within the mean of section 20 of the 1989 Act and the decision upon the precedent question of fact whether the individual concerned was a child. She said this:
"26. … the 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is "in need" requires a number of different value judgments … but where the issue is not what order the court should make but what service should the local authority provide it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the Public Authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and "Wednesbury reasonableness" there are no clear-cut right or wrong answers.
27. But the question whether a person is a "child" is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence but that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision-makers."
Lord Hope, in his concurring judgment, said at paragraph 51:
"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. There is no denying the difficulties that the social worker is likely to face in carrying out an assessment of the question whether an unaccompanied asylum seeker is or is not under the age of 18. Reliable documentary evidence is almost always lacking in such cases. So the process has to be one of assessment. This involves the application of judgment on a variety of factors, as Stanley Burnton J recognised in R (B) v Merton London Borough Council [2003] 4 All ER 280, para 37. But the question is not whether the person can properly be described as a child. Section 105 (1) of the Act provides: "in this Act … 'child' means, subject to paragraph 16 of Schedule 1, a person under the age of 18". The question is whether the person is, or is not, under the age of 18. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court."
The issue whether this appellant was a child when he entered the UK on 27 August 2008 came before Ouseley J for decision. In a judgment handed down on 17 January 2011 the judge found that the appellant was not under the age of 18 when he entered the UK and dismissed the claim. This appeal, for which the trial judge gave leave, challenges the judge's application of the burden of proof to the claim for review. The judge held that it was for the claimant to prove that he was aged under 18 years upon arrival in the UK so as to establish his qualification for the assistance sought. The appellant contends that the application of a burden of proof to an issue of fact precedent to the lawful exercise by a public body of a power to act was inappropriate. Stripped to its essentials, the appellant's case is that the question the court should have asked itself is: "On a balance of probability was the appellant over or under the age of 18 at the date of his entry into the United Kingdom?"
Before discussing the merits of this single ground of appeal, which raises an issue of considerable importance in this field, it is necessary to examine the evidence upon which the judge eventually resorted to the burden of proof.
Evidence before Ouseley J
The claimant had given different accounts of his age. At his screening interview he had given his birth date (after conversion to the Gregorian calendar) as 1 April 1993. If that was true the appellant was then aged 15 years. That age was challenged by the London Borough of Croydon which carried out an age assessment. During the course of this assessment the appellant claimed to have received from his father in Iran three documents in proof of his age and identity. These were:
(1) An Iranian resident's card which gave the appellant a date of birth of 20 September 1993; the card had expired on 23 August 2006;
(2) A certificate from the Kharameh health centre also showing a date of birth of 20 September 1993; and
(3) A record of vaccinations in which the date of birth 20 September 1993 was recorded.
Croydon assessed the appellant as aged 18 years. However, the appellant was dispersed to Cardiff. On 9 October 2008, by which date all three documents had been received, Cardiff City Council ("Cardiff") carried out its own age assessment. It assessed that the appellant was over the age of 15 years but, pending further investigation of the documents produced, the appellant was placed in foster care. The appellant's foster carer reported that in her view the appellant was much older than 15, perhaps 25 years of age. UKBA informed Cardiff that it did not consider the resident's card to be a genuine document. Accordingly, Cardiff carried out a further assessment in December 2008. The social worker who performed the assessment was Mr Nedsky. During the course of the assessment the appellant self-harmed and was admitted to the University Hospital of Wales. At the conclusion of the assessment Cardiff decided that the appellant's birth date was 19 September 1988. The choice of 19 rather than 20 September appears to have been a slip which became relevant to later events (see paragraphs 7 and 10 below). The judge summarised the facts which influenced Mr Nedsky's judgment at paragraph 23 of his judgment:
"23. Seven factors were listed as impinging on the Claimant's credibility and indicated that he was probably over 18: repeated lies about his age to officials en route to the UK; use of false documentation to prove identity and age; the improbability of a 15 year old from a rural area undertaking so long and arduous a journey to the UK; his obtaining employment several times; vagueness about his age and contradictions about the time spent in Turkey and Greece; he spent two years in secondary school which started at 14, and so he was likely to have been 17 when he left Iran, and then spent several months travelling to the UK; there was a consensus among professional and others e.g. foster carer, medical staff at the hospital and social workers that he was over 18."
On 26 January 2009 the appellant was removed from his foster placement. He again self-harmed. After treatment in hospital he was discharged to Adult Services. However, in July 2009 the two further documents relied upon by the appellant (the health centre certificate and the vaccination record) had been translated into English. Cardiff was informed that the birth date recorded in them was identical to that asserted in the resident's card. On 29 July 2009 the appellant was again treated as a child and placed with a new foster carer. His behaviour there was alarming. On 17 August 2009 he was taken under restraint and detained pursuant to section 2 Mental Health Act 1983. The following day he was transferred to Whitchurch Hospital Psychiatric Intensive Care Unit in Cardiff. While at the hospital the appellant, according to the hospital notes, consistently gave his date of birth as 19 September 1988.
The appellant was interviewed again by Mr Nedsky on 24 August 2009. At first the appellant told him that he was aged 15 years. Thereafter he insisted he was aged 20 having been born in 1988. The appellant was for the final time assessed by Mr Nedsky as aged 20 having been born in 1988. At paragraph 40 of his judgment Ouseley J summarised his findings concerning Mr Nedsky's...
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