R (A) v Croydon London Borough Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Bennett
Judgment Date20 June 2008
Neutral Citation[2008] EWHC 1364 (Admin)
Docket NumberCase No: CO/2130/2007 & CO/2334/2008
Date20 June 2008

[2008] EWHC 1364 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Bennett

Case No: CO/2130/2007 & CO/2334/2008

Between:
The Queen On The Application of
and
M
A
Claimants
and
London Borough of Lambeth
London Borough of Croydon
Defendants

Timothy Straker QC and Christopher Buttler (instructed by Bennett Wilkins) for the Claimant

(1)Ian Wise (instructed by Harter & Loveless) for the Claimant

(2)Charles Béar QC and Jon Holbrook (instructed by Sternberg Reed) for the Defendant

(1)Bryan McGuire and Peggy Etiebet (instructed by Croydon Legal) for the Defendant

(2)Ms. Deok Joo Rhee (instructed by Treasury Solicitors) for the Interested Party

Hearing dates: 4–6 and 9 June 2008

Mr Justice Bennett

Mr Justice Bennett

1

The hearing before me has come about as the result of the order of Holman J of 14 April 2008. He ordered, at paragraph 7, that in these judicial review proceedings, the following preliminary legal issues be determined:-

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 decisions of the AIT and the Secretary of State on M's age lawful?

2

Paragraph 8 provided that if he considers it proper to do so the trial judge may decide an issue raised by the London Borough of Lambeth, as follows:-

“For the purposes of assessing whether a child is a child, is paediatric evidence of the sort produced by Dr. Michie and/or Dr. Birch in these cases scientifically ill-founded and of no evidential value?”

3

On the morning of 4 June 2008, the first day of the hearing before me, I heard submissions from Counsel as to whether or not, and if so how, I should address the issue set out in paragraph 8 of the order of Holman J (to which I shall refer as “issue 4”). At the end of the submissions I told them that in my judgment issue 4 was not an appropriate issue to be determined within a preliminary hearing and that I would give my reasons in my judgment on the issues specified in paragraph 7 of the order of Holman J, to which I shall refer as issue 1, 2 and 3 respectively. I further told them that I would hear submissions in the directions hearing on Friday 13 June as to what part issue 4 should take in the final hearing. My reasons for this decision are to be found between paragraphs 165 and 173 of this judgment.

Background

4

Both judicial review proceedings were started by foreign nationals, M and A, having arrived in the UK, each seeking asylum. Both claimed they were children, i.e. under the age of 18, and thus were entitled to have performed in their favour the duties said to be imposed upon the London Borough of Lambeth and Croydon respectively under Part III of the Children Act, 1989, particularly section 20. Each local authority through their social workers assessed the age of each claimant as being over the age of 18 years. In both cases the claimants submitted reports from consultant paediatricians, Dr. Michie and Dr. Birch respectively, to the broad effect that the claimant was under the age of 18. Neither local authority was persuaded by these reports. Furthermore, in the case of M only, M appealed to the AIT from the SSHD's refusal to grant him asylum. On 1 May 2007 (but promulgated on 14 May) the AIT determined in that appeal, to which Lambeth was not a party and in which it was not in any way involved, that M's stated date of birth of 15 December 1989 was correct. If M's birth was in fact 15 December 1989 then as at the AIT's determination he was then 17 years old. In September 2007 the SSHD, the intervener in both sets of proceedings, granted M discretionary leave to remain in the UK on the basis that he was a child (i.e. under 18 years old).

5

As I have said M says that he was born on 15 December 1989. On 1 December 2006 he arrived in the UK from Libya and claimed asylum. His age was disputed by the SSHD. On 14 December 2006 Lambeth carried out an assessment of M and concluded that he was over 18 years old. On 17 January 2007 the SSHD refused M asylum. On 2 February 2007 (it is said) Dr. Michie, a consultant paediatrician, assessed his age as more likely than not as 17. On 2 March 2007 Lambeth, having considered the report, was not persuaded to change its mind.

6

On 13 March 2007 M began judicial review proceedings. After the AIT's determinations, about which Lambeth knew nothing until August 2007, on 16 May a consent order was agreed between the parties that provided for a further age assessment by Lambeth. At M's request on 20 May Dr. Michie responded to questions put by Lambeth. On 12 July Lambeth again assessed M as over 18. On 22 August, by which time M's solicitors had served the decision of the AIT on Lambeth, M asked Lambeth to reconsider his age in the light of that decision.

7

On 12 September Lambeth again assessed M as over the age of 18 years.

8

On 29 February 2008 HHJ Mole QC granted M permission to apply for judicial review on amended grounds, which were filed on 11 April 2008. Those grounds raised for the first time issue 1 (and 2) notwithstanding that M had on three occasions asked Lambeth to reassess M's age through its social workers, whom M now say were not “an independent and impartial tribunal established by law” in accordance with Article 6(1) of the European Convention on Human Rights. It obviously goes without saying that had Lambeth reassessed M as being under 18 in response to M's requests these proceedings would have ended with no point being taken that the social workers were/could not be an independent and impartial tribunal. It does rather stick in this judicial throat that M's solicitors, having specifically requested Lambeth to reassess his age, should then, when the decisions are unfavourable, seek to invoke Article 6(1) i.e. to have declared invalid the determinations of the very persons from whom M sought the determinations not just once but three times.

9

On 13 November 2007 A arrived in the UK from Afghanistan and maintained that his date of birth was 8 April 1992 i.e. 15 years old. On 14 November A applied for asylum and was interviewed on behalf of the SSHD who assessed his age at over 18 years. On 22 November Croydon social workers interviewed A and assessed him as over 18 years. A was referred to the Home Office for NASS support. On 7 December the Home Office confirmed that A was over 18 and that they would provide NASS support until his asylum claim was confirmed. On 13 December A's solicitors wrote a letter before claim alleging three grounds, one of which was that Croydon's determination of A's age was contrary to Article 6(1).

10

On 16 January 2008 Dr. Birch, a consultant paediatrician, assessed A's age to be between 15 and 17 years old, yet calculated to be 15 years 10 months consistent with his stated age of 15 years 9 months. On 18 January the report was served on Croydon.

11

On 7 March A issued judicial review proceedings. On 17 March Dobbs J ordered a “rolled up” hearing. On 26 March an addendum report of Dr. Birch was served.

12

So far as I know these are the first cases to come before the Administrative Court by way of judicial proceedings in which it is primarily asserted that Article 6 (and Article 8 which Mr. Wise, A's counsel, contended was applicable in this case) of the ECHR is applicable to Part III of the Children Act, 1989, in particular to section 20 and that judicial review cannot cure a breach of Article 6(1). Hitherto this Court has been invited to approach an age assessment by local authorities upon classic judicial review bases. Perhaps the best example is a decision of Stanley Burnton J, as he then was, in R(B) v. Merton LBC [2003] EWHC 1689 (Admin), [2003] 4 All ER 280 (to which I shall refer hereafter as “ Merton”). In that case the claimant sought judicial review of the decision of the Merton London Borough Council that, whilst he was in need, he was well over the age of 18 years. He claimed that he was under 18, and hence a child, and thus was owed a duty under Part III, in particular section 20. The claimant contended that Merton's enquiries were inadequate, there was procedural unfairness and that Merton simply adopted the conclusions of the Home Secretary. Merton contended that the assessment process was rational, adequate and lawful and could not be impugned. The claimant further contended that Merton's assessment of the claimant's age was a determination of a civil right within Article 6(1) but it was expressly accepted that judicial review of the decision would render the process as complying with the ECHR. The judge thus approached the matter not under the Convention but on traditional, common law grounds.

13

In the course of giving judgment the judge made, with respect, some important observations, between paragraphs 20 and 30 inclusive, as follows:-

“20. In a case such as the present, the applicant does not produce any reliable documentary evidence of his date of birth or age. In such circumstances, the determination of the age of the applicant will depend on the history he gives, on his physical appearance and on his behaviour.

21. There is no statutory...

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  • R (M and another) v Lambeth London Borough Council and another
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