R (A) v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | sitting as a Deputy High Court Judge |
| Judgment Date | 28 November 2008 |
| Neutral Citation | [2008] EWHC 2921 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8382/2008 |
| Date | 28 November 2008 |
[2008] EWHC 2921 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISIO
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Stephen Morris Qc
Sitting as a Deputy High Court Judge
Case No: CO/8382/2008
Mr. Christopher Buttler (instructed by Fisher Meredith LLP for the Claimant)
Mr. Donald Broatch (instructed by Julie Belevir, Council Secretary and Solicitor, LB of Croydon for the Defendant)
Hearing dates: 18 and 19 November 2008
Mr. Stephen Morris QC:
Introduction
The Claimant is an Iraqi asylum-seeker, who arrived in this country in February 2008. He claims to have been born on 9 November 1992 and is thus, now, aged 16. If that is correct, and, if he is in need, he is owed a duty under Part III of the Children Act 1989 (“the 1989 Act”) by the local authority in whose area he is, including a duty under section 20 of that Act to provide him with accommodation. Moreover, if he is a child, then this will improve his position as regards his ability to remain in this country. However on 4 March 2008 the Defendant, the relevant local authority, determined that he was then aged then 17 (and is thus now 18). This assessment was confirmed by the Defendant by decision dated 21 October 2008 (“the Decision”). On that basis, with effect from 9 November 2008, the Claimant is not a child and the local authority's duties under the 1989 Act are not so extensive and, moreover, he is not entitled to the more favourable immigration treatment accorded to child asylum-seekers.
Following orders of Mr. Michael Supperstone QC sitting as a Deputy High Court Judge and Mr. Robin Purchas QC sitting as a Deputy High Court Judge dated, respectively, 22 September 2008 and 22 October 2008, the matter comes before me by way of a “rolled-up” hearing of the application for permission to apply for judicial review, and, if granted, of the substantive application. Since, as appears from this judgment, the claim is clearly arguable, I grant permission and now proceed to consider the substantive application.
The issue in the case is whether the Decision not to review the Defendant's age assessment should be quashed on Wednesbury reasonableness grounds, on the basis that it erroneously rejected, or erroneously failed to take properly into account, a medical report from a consultant paediatrician, Dr. Diana Birch (“Dr. Birch's Report).
The Factual Background
The Claimant states that he was born in Iraq, is Kurdish and lived in Kirkuk. He states that, after both his parents were killed, his uncle arranged for him to leave Iraq in November 2007 and he travelled to Europe mainly by lorry. He arrived in the United Kingdom on 21 February 2008. At that date, on the basis of his claimed date of birth of 9 November 1992, he was 15 years old.
The Defendant's Age Assessment: 4 March 2008
On 4 March 2008, the Defendant's social workers interviewed the Claimant and assessed the Claimant's age to determine whether he was a child, for the purposes of s.20 of the 1989 Act, and if so, his age so as to inform an assessment of his needs. The age assessment report, on a standard form, of that date (“the March Assessment”) made a number of observations, including observations that the Claimant had not helped his parents with chores, that he was unable to cook and that he used the money provided by the Defendant to buy fast food. On the final page dealing with analysis and conclusions, the standard form contained the instructions: “If [the conclusion] differs from the stated age, clear reasons for this disagreement should be given. Please remember this process is not an exact science and that conclusion should always give the benefit of the doubt”. The concluding section of the March Assessment was completed on that page in the following terms:
“[A], presented as being confident, during the assessment interview, his appearance and behaviour indicated that he may be aged at least 18+ years. [A] has provided very little information during the assessment interview, to confirm that he was born on the date of birth which he claims to have been born. Giving him the benefit of the doubt his estimated Date of birth is 09 November 1990”.
The March Assessment concluded that the Claimant's stated date of birth was incorrect and estimated his date of birth to be 9 November 1990. On that basis, at that time, the Claimant was approximately aged 17 years 4 months. The Claimant is critical of this conclusion, pointing out that it is difficult to see how a conclusion that the Claimant is two years older than his claimed age amounts to “giving him the benefit of the doubt”. Moreover, the Claimant contends that the Defendant did not give any reasons to justify disbelieving the Claimant's stated age, since the mere possibility of being 18+ years does not support the conclusion that he was not 15 or that he was 17 years old. The March Assessment itself has not been the subject of challenge by way of judicial review. However, the Claimant suggests that it (and the criticisms of it) remain significant because, in the Decision, the Defendant confirms that the March Assessment was correct.
Pathway plan issue
Since, in the March Assessment, the Defendant concluded that the Claimant was a child and since he was in need, the Defendant began to look after the Claimant on 4 March 2009 pursuant to its duty under s.20 of the 1989 Act. In correspondence from June 2008 onwards, Fisher Meredith, the Claimant's solicitors, pressed the Defendant to produce an assessment and a “plan” in respect of the Claimant, and in particular a “pathway plan” under the provisions of Sched. 2 para. 19B of the 1989 Act and the Children (Leaving Care) (England) Regulations 2001. At that stage, the Claimant maintained that the obligation to produce one had taken effect on 4 June 1989. The Defendant's position was that, whilst there remained a dispute as to the Claimant's age, it could not prepare a pathway plan. By letter dated 21 October 2008 and having confirmed its view that the Defendant was, at that time, 17 years old, the Defendant in any event undertook to produce a pathway plan. Whilst the parties are broadly agreed that the issue is now academic, I have been invited to consider certain matters arising out of this issue. I return to this issue at paragraphs 79 to 81 below.
Dr. Michie's Report
On 28 April 2008, at the request of the Refugee Legal Centre (“RLC”) who were acting for the Claimant in respect of his asylum claim, the Claimant was interviewed and examined by Dr. Colin Michie, a consultant paediatrician at Ealing NHS Trust. On the same date Dr. Michie produced a “draft medico-legal report” to determine the probable age of the Claimant. (As explained in paragraph 18 below, Dr. Michie's Report was first made available to the Defendant on 20 October 2008.) His conclusion was that the Claimant's “maturity is consistent with a chronological age of 17 years” with an error or range of this estimate of 2 years. He also stated: “it is more likely than not that the client is 17 years old. It is possible that the client is 16 or 18 years old. It is highly unlikely that the client is either 15 or 19 years old”. Those conclusions were based on physical growth characteristics, dental development and non-objective assessment of psychological maturity, and the Claimant's own narrative account. By contrast with Dr. Birch's Report, there were no observations based on psychometric testing of mental development and little on the question of sexual development. Nor was there any assessment of the particular significance of different factors and the relative weight to be accorded to each factor. I note that reports from Dr. Michie have featured in many of the reported cases on issues of age assessment. In each case, Dr. Michie has used very similar wording to express his conclusion. I also note that in the case of C (referred to below), Davis J (at §§6 to 8 and 30) expressed considerable reservations as to how Dr. Michie had arrived at the particular figure for age in question. On the other hand, in I and O, Owen J gave more favourable consideration to a report from Dr. Michie.
On 4 June 2008 the Secretary of State rejected Claimant's claim for asylum, humanitarian protection and discretionary leave, and in doing so, relied, in part, upon the Defendant's age assessment. The Claimant's appeal against that decision to the Asylum and Immigration Tribunal is currently due to be heard on 1 December 2008.
Dr. Birch's Report
On 16 June 2008, again at the request of RLC, the Claimant was interviewed and examined by Dr. Birch, a paediatrician with special interest in adolescence and the medical director of a charity specialising in the assessment and care of single mothers, families, young people and children. She is a fellow of the Royal College of Paediatrics and Child Health (“RCPCH”), of the Royal College of Physicians and of the American Society of Adolescent Medicine. In the past, she has worked for the London Boroughs of Lambeth, Southwark and Wandsworth. On the same date she produced her written report (“Dr. Birch's Report”), running to some 24 pages in total. Her report states that her assessment had been conducted in accordance with the RCPCH's guidelines entitled “The Health of Refugee Children: Guidelines for Paediatrician” (“the RCPCH Guidelines”) and by reference to the guidance in the case of R(B) v. LB Merton (both referred to below). She interviewed the Claimant at the offices of the RLC. As appears both from the case...
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