R (A) v Liverpool City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 26 June 2007 |
| Neutral Citation | [2007] EWHC 1477 (Admin) |
| Date | 26 June 2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: C01558412006 |
[2007] EWHC 1477 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice Strand,
London. WC2A 2LL
Mr Justice Walker
Case No: C01558412006
Mr Ian Wise (instructed by Jackson & Canter Solicitors) for the Claimant
Mr Hilton Harrop-Griffiths (instructed by the Solicitor to Liverpool City Council) for the
Defendant
Hearing dates: 21 May 2007
Introduction
1 The claimant is from Afghanistan. The court has made an order preserving his anonymity. The reason for the order is that he claims to be a child. He arrived in this country and sought asylum in January 2006. At that time he said that he was 14 years old. It is common ground that, subject to determination of his age, the defendant local authority has responsibilities in relation to him. The eventual determination made by the defendant, set out in a letter dated 6 November 2006, was that it should adopt the opinion of an expert dental surgeon, Mr Ritchie, as set out in a second report prepared by him on 15 September 2006 and signed on 21 September 2006. The opinion expressed in that report was that the claimant is, on the balance of probability, well over 18 years of age.
2 The second report of Mr Ritchie was in fact prepared after the proceedings had begun. The claim form was lodged on 6 July 2006, and challenged an earlier decision of the defendant dated 3 July 2006, also to the effect that the claimant was over 18 years old. The grounds for judicial review proceeded on the basis that the determination of the claimant's age was a matter for the defendant, but that when making that determination the defendant was obliged to act fairly, and to take into account all relevant information. Proposed amended grounds of judicial review were then prepared to take account of the fresh determination on 6 November 2006. The approach adopted is essentially similar. It is accepted that it is for the authority to determine the age of the claimant. However, it is said that the determination made on 6 November 2006 was a determination which contravened accepted principles of public law.
3 The matter came before me on 21 May this year. On the basis of clarification provided orally by Mr Wise, who appeared on behalf of the claimant, I gave permission to amend the claim form, and I granted permission to apply for judicial review. With the consent of both parties I then proceeded to hear argument on the substantive judicial review claim. This involved two issues. The main issue was whether the defendant's determination of 6 November 2006 should be quashed. The second issue was whether a declaration should be granted as to the lawfulness of the defendant's actions on 3rd July 2006. At the conclusion of argument I indicated that I would quash the decision of 6th November 2006, and that I would grant a declaration that the earlier decision of 3rd July 2006 had been made unfairly. I now give my reasons.
A Note of Caution
4. The argument on the main issue proceeded on a common basis as to the legal principles concerning determination by local authorities of the ages of those claiming to be children. This was that relevant legal principles were set out in two first instance decisions, R (B) v Merton London Borough Council [2003] 2 FLR 888, and R (T) v Enfield London Borough Council [2005] 3 FCR 55. Each of those decisions proceeds on the assumption that obligations are imposed on local authorities not because the court holds the claimant to be a particular age, but because the local authority has made a determination as to age. The common basis adopted in the present case meant that I was not taken to statutory provisions which would otherwise have been relevant. If that common basis had not been adopted, questions might have arisen, dependent upon the statute governing particular obligations, whether in a disputed case the age of a claimant is to be determined by the local authority or by the court, and if the latter whether in proceedings for judicial review or ordinary action in the High Court or the County Court. I express no view on any of those questions.
History of Events
5. An initial assessment of the claimant's age was made by two of the defendant's social workers on 5 January 2006. They completed an “Age Assessment” form, which recorded that the claimant's asserted date of birth was 1 January 1992. In the form they noted that no medical opinion had been sought. Their analysis was as follows:
“Initially [A] appeared youthful looking. [A] showed some signs of ageing, visible lines on the face and protruding Adam's apple. [A] was very articulate in his communication, [A] was relaxed confident during the interview. [A] showed no emotions when talking about his separation from his family, showing maturity in being able to control his emotions. [A] asked if he could be put with a family, as he may not find his own. [A] seemed to be aware of what is on offer in the UK for people under the age of 16 yrs. [A] stated his father had his birth certificate but the school told him his date of birth. [A] stated he was told his date of birth when he left six months ago.
Colleague and myself felt that [A] was very honest when explaining his journey to the U.K. [A] did not remember any problems leading up to their escape from Afghanistan but stated his Mother told him his Father had a fight.
[A] was asked how he felt he would cope living independently,
[A] stated he felt he would have no problems taking care of himself. [A] seemed very independent for a person who had never lived alone or helped around the house while living at home. [A] showed maturity in his ability to interact with adults.
[A] is considered to be a minor but over the age of 16 yrs. [A] will be supported by social services under section 17 of the Children Act 1989.”
6. A minor is a person below the age of 18 years. It will be apparent that by concluding that the claimant was a minor, but over the age of 16 years, the social workers arrived at an assessment that the claimant was 17 years old. This assessment was of concern to those advising the claimant, for it meant that he would not receive the education and other services appropriate to a 14 year old. They instructed Dr Michie, a consultant paediatrician. He examined the claimant on 29 March 2006. Dr Michie in his first report, dated March 2006, reached the conclusion that it was more likely than not that the claimant was 14 years old. It was possible that he was either 13 or 15 years old. Dr Michie thought it highly unlikely that he was either 12 or 16 years old. It is necessary to set out a considerable part of what was said by Dr. Michie in his first report:
“Client history and examination
[A] was born at home in the Ghazni province of Afghanistan. His declared date of birth was not employed in the following age estimation. [A] did not recall any serious heath problems during his early life; he has had no chronic disease, trauma or surgery that may have affected his physical growth or maturity. He does not smoke tobacco or drink alcohol. He has had no teeth extracted but has some pain from several teeth. He takes no long-term medication. There is no evident history of malnutrition or food shortage. He attended formal schooling for between 3 and 4 years. He arrived in the United Kingdom in January 2006; he is not independent or self-caring and is currently cared for by Social Services. He has a younger brother aged 9 or 10 years of age. He has never known the age of his parents. An estimate of the mid-parental centile was in the region of 175 cms.
[A] is in good physical health at present. He is tall and slim. He is not anaemic or jaundiced. [A] has a height of 170 cms and shows no dysmorphic features, nutritional disorder or spinal anomaly. His mid upper arm circumferences is 22.6cms, his triceps skin fold thickness 2.6 mm. He shows no obvious signs of early aging in the skin around either the eyes or the hands although there is solar damage evident in these areas of skin. The client is sexually mature and Tanner stage 4/5 using this scoring system. On examining his mouth he has no erupted wisdom teeth (permanent third molars). There is no molar wear evident on the upper and lower jaws; there are several cavities as described. There is no gum inflammation or damage evident to my examination. There is no evidence of surgery. The morphology of this client's teeth and gums was carefully documented and compared with reference charts. His dietary history and socioeconomic status were taken into account in the estimation of his dental condition.
Age assessment of this client
The physical measures of this client including his height, skin fold thickness, body mass index, the skin signs seen in young adults and his dental examination today were consistent with a chronological age of 14 years when compared with published measures appropriate for adolescents and young adults. The narrative history provided does not provide any material to contradict this estimate or support another. The client has a number of skin changes that are deceptive, suggesting he is older, but in my opinion these are not linked to his
chronological age. These observations are supported by the non-objective assessment of the psychological maturity of this client during the interview, particularly in his interactions with myself and other staff during the appointment; the client behaves like a young adolescent. The physical measures have a published error of 2 years: more narrow error margin is probably not possible.
Further possible steps for age assessment
These...
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