The Queen (on the Application of KN, by her Litigation Friend JA) v The London Borough of Barnett
| Jurisdiction | England & Wales |
| Judge | HHJ David Pearl,His Honour Judge David Pearl |
| Judgment Date | 29 July 2011 |
| Neutral Citation | [2011] EWHC 2019 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 July 2011 |
| Docket Number | Case No: CO/7897/2010 |
[2011] EWHC 2019 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge David Pearl
Sitting as a Deputy Judge of the High Court
Case No: CO/7897/2010
Mr C Buttler (instructed by Fisher Meredith LLP) for the Claimant
Ms S Davies (instructed by Legal, London Borough of Barnet) for the Defendant
Hearing dates: 20, 21, 22 July 2011
Introduction
This is a fact finding hearing in which, as Mr Buttler states in his skeleton argument, the function of the Court is to assess the age of the Claimant, (whom I shall refer to in this judgment as K), in the light of the decision of the Supreme Court in R(A) v LB Croydon [2009] UKSC 8.
The circumstances surrounding K's upbringing in the Democratic Republic of Congo (DRC) is not in dispute. Of the various Reports I have read for the purposes of this hearing, one of the more comprehensive, which sets out the background information, appears in the Report written by Dr Meena Naguib, Consultant Psychiatrist at the Edgware Community Psychiatric Hospital dated 7th July 2011. She writes as follows:
"[K] has lived all her life prior to moving to the UK in a brothel in DRC, after she was kidnapped from her family at a young age. She is said to have never known her family and she was confounded (sic) with four other girls in that brothel where they were used for child prostitution. She has never been through any formal education in DRC but was taught the alphabet and "little" reading by a person in the brothel. It is also said that she got pregnant at the age of twelve and gave birth to a baby…She was reportedly breast feeding her baby but two months later, 'they' took the baby away from her and she never saw him/her again. She also has had another pregnancy about a year or two later but she had a termination of that pregnancy. [K] was trafficked to the UK in 2008 and kept in captivity in a house, in London (the whereabouts of that place is not recorded in any of the available information) where further sexual exploitation took place. It was some time later that the man who kept her restricted…suddenly left the house and never returned. She subsequently managed to leave the house and 'ran as far as she could and eventually rushed up to a woman who was speaking French, Mrs JA, originally from Cameroon and now a British subject'. She has been living with [Mrs JA] and her two children since then".
In fact, the last sentence is not quite correct, because there was a short period of time during which K lived with two different foster carers, from 16–27 February, and from 27 February – 19 March. She then returned to live with JA who had been rehoused in the interim.
She has been diagnosed with PTSD (F43.1 ICD10). Dr Naguib states that the symptoms include intrusive thoughts, memories and images of the past abuse in addition to a high state of arousal that is reflected in her difficulty to sleep at night. The Doctor also states that K is known to suffer from a severe form of depressed mood considered to be separate from PTSD. This includes recurrent bouts of crying, a sense of despair and hopelessness, loss of interest in activities, slowness of thinking and movement, guilt feelings and recurrent self harm behaviour. It is possible that she could be developing Eating Disorder that needs further exploration. She has been taking Citalopram 20mg medication, but she reported to Dr Naguib that she has ceased taking this medication.
Dr Naguib recommended that K is currently unfit to attend Court, as she is a very vulnerable, traumatised and psychologically damaged person. It was Dr Naguib's opinion that if K were forced to be cross-examined either in Court or via video link, the risk of self harm would significantly increase and the whole event would be detrimental to her well being and damaging to any achievement she might have gained so far.
On 11th July 2011, Mr David Holgate QC, Deputy High Court Judge, upon reading the Report of Dr Naguib, ordered that the Claimant be excused from giving evidence or attending court for the final hearing.
Accordingly, I must make a decision on the age of K and, if possible, her date of birth, without the advantage of seeing K and hearing K give evidence. I must rely on the Witness Statements and the oral evidence of those who appeared before me. This of course is a most unsatisfactory scenario, rendered even more difficult by the fact that the London Borough of Barnett has not provided witness statements nor called as witnesses any of the three Social Workers (Ms O'Donovan, Ms Morales, and Ms Johnson) who carried out the First Age Assessment Interview (18. 2.2009 and 2. 3.2009) or the Lead Assessor (Ms Sanz) who conducted the Second Age Assessment Interview (22. 5.2008 and 28. 5.2008). The London Borough of Barnett has relied upon the witness statement and oral evidence of Ms Philippa Selby, the second assessor in the second Age Assessment, who at the time of the interviews was a Social Work assistant.
Thus, I must reach a decision based on a reading of the various Witness Statements and Reports, and an assessment of the oral evidence, of Ms Selby who gave evidence for the Defendant, and of Dr Birch, Dr Agnew-Davies, Mr Shreeve, Ms Hall, and Dr Helen Bamber, all of whom gave evidence on behalf of the Claimant.
The burden of proof
Before I turn to an examination of the evidence, I wish to make certain observations on the question of who has the burden of proof in these matters.
I have to say that I have considerable sympathy with the view as set out by Langstaff J in MC v Liverpool City Council [2010] EWHC 2211 (Admin). In that case he said:
"It seemed to me, and in this I am supported by the submissions of [Counsel for the Defendant], with which I do not understand [Counsel for the Claimant] to disagree in his submissions, that the process is one of assessment. It is not in reality choosing between one of two alternatives, one or the other of which must represent the fact."
Neil Garnham QC, sitting as a Deputy High Court Judge, in The Queen on the Application of N v London Borough of Croydon [2011] EWHC 862 (Admin) agreed with Langstaff J. Mr Garnham QC said:
"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, whichever 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 range of dates and picking the one which the evidence suggests is the 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."
The question of the burden of proof was considered also by Ouseley J in The Queen on the Application of CJ v Cardiff County Council [2011] EWHC 23 (Admin). He also agreed with Langstaff J that the judicial reasoning in a case such as this is closer to assessment, in that
"…the decision is not necessarily fixed by the positions of the competing parties, one of which must be chosen as correct; the fact finding role permits the Court to come to its own view which may differ from both parties' contentions, subject to procedural fairness."
Ouseley J went on to say:
"…the Local Authority's task is to undertake an assessment rather than deal in the burden of proof and the balance of probability. By contrast, whilst that may often be how the fact finding role of the Court is undertaken in disputed age cases, 'assessment' is not a complete statement of its task. The fact finding role may require a stark choice and conclusion based on burden of proof, and the balance of probability."
It is my view that there may be cases where a stark choice has to be made, in particular where there are issues of credibility and alleged false documentation, and one or both of which may well be pivotal in the decision making process. In such a case, I can see that the person who challenges an assessment which has been made by the Local Authority that he or she is over 18 because it is stated that the Claimant is not credible and/or that a particular document is not reliable for one reason or another, carries the burden of proof. Thus, the Claimant will be required to demonstrate, on the balance of probability, that he or she is credible and/or that the document is reliable.
Ouseley J (at para 125) said:
"In my view, there are too many unsatisfactory features in CJ's evidence for it to be accepted in the light of all the evidence about these three documents. The expert evidence simply fails to persuade me that I can give them the necessary credence. As it is, the documentary evidence is insufficient to counter the strong reservations CJ's evidence created about his truthfulness. I do not have to find that the documents are forged or obtained by bribery or a mixture of the two. I am not satisfied as to their authenticity, having heard all the evidence."
Finally, Ouseley J (at para 127) addressed the question of the burden of proof. He said:
"In my view it is for...
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