Age Assessment. The issue

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1 The issue Age disputes arise where a young person cannot prove their age by producing documentary evidence which is accepted to be genuine and capable of being conclusive of age. The question of age will only usually arise in the cases of foreign national children. In immigration and social welfare law there are established procedures for conducting age assessments of usually, foreign national people, who state that they are under 18. However, there is no established standardised practice of undertaking age assessments where age disputes arise in criminal law. Instead, what usually happens is that children may be deemed a certain age in criminal courts by Judges without a thorough age assessment being carried out. According to section 99(1) Children and Young Person s Act 1933 and s164(1) Power of Criminal Courts (Sentencing) Act 2000, if a person who comes before a criminal court is of uncertain age, the court has the power to deem their age. Once a person has been deemed a certain age by the courts, even if that age is later shown to be incorrect, the sentence or order passed on them is still lawful (R v Steed considered). The implications of deeming a child as an adult are far reaching. For example, they will not be entitled to an appropriate adult for criminal proceedings, they will be unable to apply for special measures in court proceedings, being detained and sentenced as an adult and no access to age appropriate services. International law United Convention on the Rights of the Child (UNCRC) Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. Article 37 1

2 (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; Article 40 States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. Domestic law Statute Criminal law context Children and Young Persons Act 1933 section 99(1)- Presumption and determination of age. (1)Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child or young person, the court shall make due inquiry as to the age of that person, and for that purpose shall take such evidence as may be forthcoming at the hearing of the case, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person, and, where it appears to the court that the person so brought before it has attained the age of eighteen years, that person shall for the purposes of this Act be deemed not to be a child or young person. section 46 Assignment of certain matters to juvenile courts. (1) Subject as hereinafter provided, no charge against a child or young person, and no application whereof the hearing is by rules made under this section assigned to [youth courts], shall be heard by a [magistrates' court] which is not a [youth court] : Provided that (a) a charge made jointly against a child or young person and a person who has attained the [the age of eighteen] years shall be heard by a [magistrates' court] other than a [youth court] ; and (b) where a child or young person is charged with an offence, the charge may be heard by a [magistrates' court] which is not a [youth court] if a person who has attained the [the age of eighteen] years is charged at the same time with aiding, abetting, causing, procuring, allowing or permitting that offence; and 2

3 (c) where, in the course of any proceedings before any [magistrates' court] other than a [youth court], it appears that the person to whom the proceedings relate is a child or young person, nothing in this subsection shall be construed as preventing the court, if it thinks fit so to do, from proceeding with the hearing and determination of those proceedings. (1A) If a notification that the accused desires to plead guilty without appearing before the court is received by the [designated officer for] a court in pursuance of [section 12 of the Magistrates' Courts Act 1980] 6 and the court has no reason to believe that the accused is a child or young person, then, if he is a child or young person he shall be deemed to have attained the [the age of eighteen] for the purposes of subsection (1) of this section in its application to the proceedings in question. (2) No direction, whether contained in this or any other Act, that a charge shall be brought before a juvenile court shall be construed as restricting the powers of any justice or justices to entertain an application for bail or for a remand, and to hear such evidence as may be necessary for that purpose. section 48 Miscellaneous provisions as to powers of juvenile courts. (1) A [youth court] sitting for the purpose of hearing a charge against, [...], a person who is believed to be a child or young person may, if it thinks fit to do so, proceed with the hearing and determination of the charge, [...], notwithstanding that it is discovered that the person in question is not a child or young person. Powers of Criminal Courts (Sentencing) Act 2000, section 164(1) For the purposes of any provision of this Act which requires the determination of the age of a person by the court or the Secretary of State, his age shall be deemed to be that which it appears to the court or (as the case may be) the Secretary of State to be after considering any available evidence. Children Act 1989 In community care law contexts, the Children s Act 1989 places a burden upon local authorities to assess the age of young people who may be under the age of 18 years old, and who may therefore be entitled to section 20 support. Section 105(1) of the Act: child means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen. Paragraph 16 of Schedule 1 reads: In this Schedule child includes, in any case where an application is made under paragraph 2 or 6 in relation to a person who has reached the age of eighteen, that person. section 99 of the Act: (1) Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child or young person, the court shall make due inquiry as to the age of that person, and for that purpose shall take 3

4 such evidence as may be forthcoming at the hearing of the case, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person, and, where it appears to the court that the person so brought before it has attained [F253the age of eighteen] years, that person shall for the purposes of this Act be deemed not to be a child or young person. Magistrates Court Act Magistrates' Courts Act 1980 c. 43 section 142 Power of magistrates' court to re-open cases to rectify mistakes etc. (1) [A magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so,] and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make. (2) Where a person is [convicted by a magistrates' court] and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may [...] so direct. (3) Where a court gives a direction under subsection (2) above (a) the [conviction] and any sentence or other order imposed or made in consequence thereof shall be of no effect; and (b) section 10(4) above shall apply as if the trial of the person in question had been adjourned. section 150 Interpretation of other terms...(4) Where the age of any person at any time is material for the purposes of any provision of this Act regulating the powers of a magistrates' court, his age at the material time shall be deemed to be or to have been that which appears to the court after considering any available evidence to be or to have been his age at that time. Criminal Justice Act 1982 section 1 General restriction on custodial sentences. (6) For the purposes of any provision of this Act which requires the determination of the age of a person by the court or the Secretary of State his age shall be deemed to be that which it appears to the court or the Secretary of State (as the case may be) to be after considering any available evidence. Criminal Justice Act 2003 Interpretation of Part 12 of the Act [Sentencing] s.305 (2) For the purposes of any provision of this Part which requires the determination of the age of a person by the court or the Secretary of State, his age is to be taken to be that which it appears to the court or (as the case may be) the Secretary of State to be after considering any available evidence. 4

5 Case law L, HVN, THN, T v R [2013] EWCA Crim 991 Paragraph Paragraph 30 In a variety of different ways the administration of criminal justice recognises that provisions which relate to adults may have no appropriate application to cases involving individuals under 18 years of age. These are summarised in R (HC, a child) v Secretary of State for the Home Department [2013] EWHC 982 (Admin) paras Self evidently we are not here dealing with children who are below the statutory age of criminal responsibility. Where questions about the age of a potential defendant arise after the case has been brought to court, the decision whether the defendant is or is not under 18 years old, or was or was not under that age for any relevant purpose, is addressed in statute. The Children s Commissioner has suggested that a thorough, multi-disciplinary approach should be taken to the assessment of the defendant s age, and she has expressed concern that there are too many occasions when the due inquiry into the age of the defendant who appears to be a child or young person, as required by s.99(1) of the Children and Young Persons Act 1933, is overlooked. This provision directs the court to make due inquiry about the defendant s age, and take such evidence as may be forthcoming at the hearing of the case for this purpose. Similar provisions require the court addressing the age question to consider any available evidence. (S.150 of the Magistrates Court Act 1980; S.1(6) of the Criminal Justice Act 1982; and S.305(2) of the Criminal Justice Act 2003). When the issue arises, we agree that compliance with these provisions in contemporary society requires much more than superficial observation of the defendant in court or in the dock to enable the judge to make an appropriate age assessment. The facial features of the defendant may provide a clue or two, but experience has shown that this is very soft evidence indeed and liable to mislead. What we do know is that young people mature at different ages, and that their early life experiences can sometimes leave them with a misleading appearance. We also appreciate that young people from an ethnic group with which the court is unfamiliar may seem older, or indeed younger, than those from ethnic groups with which the court has greater experience. Therefore when an age issue arises, the court must be provided with all the relevant evidence which bears on it. Although the court may adjourn proceedings for further investigations to be conducted, these have to be undertaken by one or other or both sides, or by the relevant social services. The court is not vested with any jurisdiction, and is not provided with the resources to conduct its own investigations into the age of a potential defendant until after the investigation has completed its course, and the individual in question is brought before the court. What these appeals have revealed is that the issue of age in cases involving trafficked victims tends to attract less focus from those who act for the defendant rather than the Crown Prosecution Service which, on the whole appears to pursue the issues relating to age assessment with a measure of determination. Our view is that the professions are less well informed about the importance of these issues in the context of those who are or may be trafficked youngsters than perhaps they should be. Their importance is obvious and underlined by the outcome in each of the present appeal. 5

6 Immigration and Community Care Case Law: In immigration and community law contexts, the Merton age assessment procedure is used for conducting age assessments R (B) v London Borough of Merton [2003] EWHC 1689 (Admin) Facts: The claimant (C) is an asylum-seeker with no means of support in the UK. He claims to be aged 17. If he is under 18, and is in need, he is owed a duty under Part III of the Children Act 1989 by the LA in whose area he is, including a duty under s20 to provide him with accommodation. The defendant (D), a social worker, determined that he was aged at least 18. C seeks Judicial Review of that decision. Duration and quality of the interview is also in issue ( interview was conducted through an interpreter on the other end of a telephone; no verbatim record kept of interview); D concluded that C s appearance was that of an year old; D said C was very mature and confident, unusual for an unaccompanied minor; D claimed that C made some inconsistent statements; at the end of the interview, C was given a letter stating that the Local Authority ( LA ) had taken the stance of the Home Office. C claimed that: the assessment was based purely on appearance; that it was procedurally unfair and that he wasn t given an adequate opportunity to explain points D held against him; D simply adopted the conclusion of the Home Secretary. Held: D s decision set aside and D to reconsider the age of the C on the basis of information now available to it. It was held that the information available to the age assessor was not adequate and that the decision was not procedurally fair. Issues: 1) Was the information available to the age assessor adequate? 2) Was the decision procedurally fair? 3) C submitted that the determination of the age of C was a determination of his civil rights within the meaning of Article 6 ECHR (if so, the decision of D as a social worker is not that of an independent and impartial tribunal). However, C accepted that Judicial Review of D s decision renders the process as a whole Convention compliant Ratio: 1) Court sets out in detail its recommendations for best practice at interview. 2) LA obliged to give adequate reasons for its determination of C s age. A brief statement that the applicant has been refused as he is not a child is not sufficient (as in this case). However, it need not be long or elaborate. In the present case it would have been sufficient to have stated that the decision was based on appearance, behaviour and inconsistency which led D to conclude that he was not truthful. If D believes that the applicant is lying about his/her age, the applicant must be given the opportunity to explain himself. Further, the applicant should be given an adequate opportunity to answer the points that D is minded to hold against him/her. Guidance for making age assessments: At paragraphs of the judgment there is consideration of guidance from both the Home Office Policy Bulletin 33 and a draft document entitled Practice Guidelines for Age Assessment of Young Unaccompanied Asylum Seekers, issued by the London Boroughs of Hillingdon and Croydon: 6

7 - Two qualified and properly trained social workers should conduct the age assessment. - An appropriate adult should be present, independent of the LA: The child should at least be offered the opportunity to have an appropriate adult present (FZ v LB of Croydon [2011] EWCA Civ 59; and see R (on the application of NA (Afghanistan)) v Croydon LBC [2009] EWHC 2357 (Admin) and R(JK) v SSHD and Hampshire County Council (unreported): Successful challenge to the age assessment of a disputed minor (settled following grant of permission). - The purpose of an appropriate adult has been set out in clear terms by the Home Office in the context of criminal law. The reason for this safeguard was succinctly put in R (DPP) v Stratford Youth Court [2001] EWHC Admin 615: namely that the Court noted the need for an appropriate adult arises because of the risk that a young person could give misleading, unreliable or self incriminating information during the course of a police interview. - The child should be informed of the purpose of the assessment and of the consequences of the assessment decision. - Duty to give reasons - The decision must be based on firm grounds and reasons for them must be fully set out and explained to the applicant (child). However, the reasons do not have to be particularly long, provided they make clear the reasons why the particular conclusion was reached. - Child-friendly approach - The approach of the assessors must be professional and sensitive to the young person. - Procedural fairness - The child should be given a fair and proper opportunity to deal with adverse issues surrounding their age case which may be held against them (R (FZ) v LB Croydon)). - Burden of proof at assessment stage at the time of the LA assessment of age the disputed child is not to be put in a position where they have to prove their age. The assessment should be a process by which together, the assessors and the child explore the necessary information to establish age. - Benefit of doubt - The benefit of any doubt should always be given to the young person since it is recognised that age assessment is not a scientific process: R(A) v Croydon [2009] UKSC 8. The assessment process must start with the benefit of doubt being afforded to the child, i.e. that there is no assumption that the child is telling untruths; to the contrary, there should be an assumption that the child is telling the truth. Where there are doubts or inconsistencies, questions should be put in an open-ended way to explore these doubts. The substance of an assessment is as follows: - Physical appearance - An assessing social worker is not entitled to simply look at a child and determine he or she looks 18 years old and therefore does not require an assessment of his age, particularly where the child is claiming to be a child (R(A) v Croydon [2009] UKSC 8; Merton). - Demeanour - Caution must be taken in respect of any reliance on a young person s demeanour. In R(A) v Croydon it was stated at para 55 that what is meant by the observation that he appeared to be comfortable in his body? It is difficult to follow what this does mean and how a discomfort with a changing body can manifest itself. It can only be relevant in the totality of the evidence before the assessors. 7

8 - The questions in an assessment must relate to the determination of age on the particular facts of a particular unaccompanied asylum-seeking child. However, general credibility may be relevant. - The following should be taken into account: the general background of the applicant, including his family circumstances and history; his involvement in family chores; his educational background; his activities during the previous few years; ethnic and cultural information may also be important; assessment of C s credibility where there is a reason to doubt the age he gives himself using questions designed to test his credibility. - Medical evidence should be considered as part of the process of deciding age. The LA is not entitled to ignore a medical report altogether, although the Courts have been critical of the methodology employed by some paediatricians to assess age see R(A) v London Borough of Croydon [2009] UKSC 8 and R(WK) v Secretary of State for the Home Department & Kent County Council [2009] EWHC 939 (Admin). Nonetheless, as in R (A) v Croydon [2009] UKSC 8, the Courts have recognised that the judgment of an experienced paediatrician may still form a valuable part of a holistic assessment of age. - Social Services cannot simply adopt a decision made by the Home Office Relevant comments: There is no statutory procedure or guidance issued to LAs as to how to conduct an age assessment for the purposes of deciding the applicability of Part III of the Children Act S152 [sic] of the Magistrates Courts Act 1980 provides that where a person s age is material for the purposes of the provisions of that Act regulating the powers of a Magistrates Court, his age at the material time shall be deemed to be or have been that which appears to the court after considering any available evidence to be or to have been his age at that time. (Note: the Judgment should refer to s.150 of the Act, not s.152) Part I of the Criminal Justice Act is concerned with the treatment of young offenders and s1(6) makes similar provision in relation to the determination of a young persohc n s age by the Court as the Home Secretary for the purposes of that Act. Suggestions in a draft document entitled Practice Guidelines for Age Assessment of Young Unaccompanied Asylum Seekers issued by the London Boroughs of Hillingdon and Croydon who are participating in a pilot project for practitioners in social work with unaccompanied asylumseeking children: - Beneficial to have two assessing workers - Assessment to be undertaken over a period of time - Involve other professionals, e.g. residential social worker staff, teachers and other young people - Ethnicity, culture and customs of the person being assessed must be a key focus - Be mindful of coaching - Use open-ended non leading questions/ circular questions - Use of a form with sections for physical appearance and demeanour, manner of interaction with assessing worker, social history and family composition, developmental considerations, 8

9 education, level of independence and self-care, health and medical assessment, any documentation or other sources, and conclusion. Immigration and Nationality Directorate of the Home Office Policy: - If the young person s appearance strongly suggests that s/he is over 18, s/he should be treated as such until credible documentary or medical evidence is produced which demonstrates s/he is the age claimed - Benefit of the doubt should be given to applicant in borderline cases - Anyone given the benefit of the doubt will then he referred to the LA social services department (SSD) for support under the Children Act 1989 who will conduct an age assessment. - If the age assessments supports the view that the claimant is over 18, the burden of proof lies with the claimant to prove that s/he is a minor Link between accurate age assessments and human rights as set out in the above judgment- R (B) v LB Merton [2003] EWHC 1689 (Admin): - Para 23 It is difficult for a layman to determine the age of someone born in this country with any accuracy. A general practitioner is very unlikely to have the knowledge or experience to improve on the accuracy of an intelligent layman. To obtain any reliable medical opinion, one has to go to one of the few paediatricians who have experience in this area. Even they can be of limited help. - Para 36 The assessment of age in borderline cases is a difficult matter, but it is not complex a judicialisation of the process is to be avoided - Para 37 Except in clear cases, the decision maker cannot determine age solely on the basis of the appearance of the applicant. - Para 35 Where important human rights are concerned, as in asylum cases, anxious scrutiny (as to administrative decision) is required; where the subject matter is less important, the Court may be less demanding. R (A) v London Borough of Croydon [2009] UKSC 8 Facts: Cs arrived in the UK from Afghanistan and Libya respectively and claimed asylum. Both asserted that they were aged under 18years, but their ages were assessed as over 18 by immigration officers. They disputed this. Social workers also concluded that they were over 18 and refused to provide accommodation under s20(1) CA. Independent doctors assessed their ages as 15 and 17. Issue: whether the law requires that, in cases which cannot be resolved through the processes outlined for Immigration Officers, and (where the age is still in doubt) by the local social services authority, the court shall make the final determination? Are the courts are best placed to decide questions of facts in the context of asking whether an assessment of age for the purposes of s20 by the LA is judicially reviewable? Are age assessments in accordance with article 6 ECHR? 9

10 Held: - The question of whether a child is in need is for the LA to determine (in accordance with s20 Children Act). However, the question whether a person is a child or not is subject to ultimate determination by the courts. - Because the Children Act is for and about children, the question whether a person is a child is a fact precedent to the exercise of a LA s powers under the Act and therefore is also a question for the court. - Although the LA has to make its own determination in the first place, if that decision is in dispute, the court is to decide by Judicial Review. - Because the age determination, in the event of dispute, would be decided by an impartial and independent tribunal, the question of whether s20 engaged article 6(1) did not fall for decision. - If s20(1) does give rise to a civil right, the present decision-making processes, coupled with Judicial Review on conventional grounds, are adequate to result in a fair determination within the meaning of article 6 (per Baroness Hale of Richmond JSC). However, it can be asserted with reasonable confidence that the duty of the LA under s20 does not give rise to a civil right within the meaning of article 6(1) (per Lord Hope of Craighead). Guidance for Age Assessments: none Helpful comments: none Link between accurate age assessments and human rights: - Para 27 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-maker 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 court. That does not prevent them from being questions for the courts rather than for other kinds of decision-makers. - Para 33 The public authority has to make its own determination in the first instance and it is only if this remains disputed that the court may have to intervene. But the better the quality of the initial decision-making, the less likely it is that the court will come to any different decision it does not mean that all the other judgments involved in the decision whether or not to provide services to children or to other client groups must be subject to determination by the courts. - Para 45 If this is a civil right at all, therefore, I would be inclined to hold that it rests at the periphery of such rights and that the present decision-making processes, coupled with Judicial Review on conventional grounds, are adequate to result in a fair determination within the meaning of article 6. R (F) v Lewisham London Borough Council [2009] EWHC 3542 (admin) Facts: This was a directions hearing. Multiple claimants sought Judicial Review for age assessment decisions made by LAs. The claimants sought judicial review of decisions by respective LAs that on the relevant dates they were not children, with the consequence that the LAs did not owe them duties under the Children Act

11 Decision: Following the decision in R(A) v Croydon LBC (SSHD intervening) 2010 PTSR 106. Holman J gave directions that each case would be listed as fact finding cases to determine whether or not, on a relevant date, the claimant was a child, and if so, his/her date of birth. The standard of proof was the ordinary civil standard of the balance of probability. Reliance upon paediatric evidence cannot be excluded, if it already exists. Introduction of medical evidence into cases where it did not so far already exist, should not be permitted until the court had had some opportunity at a fact-finding hearing fully to consider its value. If local authorities wished to rely on evidence by social workers, they would have to produce those social workers for cross examination. Ratio: Test before permission can be granted for such Judicial Reviews to take place: whether there was a realistic prospect, or arguable case that at a substantive fact finding hearing the court would conclude that the claimant was of a younger age than that assess by the local authority. Quotes related to Age assessments: The particular facts of the Lewisham case, in which the claimant claimed to have been trafficked and very abusively treated, might raise in acute form the question whether any involvement or questioning of the claimant would itself amount to a further abuse. Unlike care cases, claimants in this type of case tended to be of an age, 16 or 17, where they would answer questions, perhaps via video link, about sensitive matters. MC v Liverpool City Council [2010] EWHC 2211 (admin) Facts: The claimant, a refugee from Iran is initially assessed to be born in 1992, and then reassessed to be born in He claims to be born in Decision: The judge decides he is younger than initially assessed by the social workers, but not as young as the claimant says he is, due to his inconsistencies in evidence. Judge thus orders that he should be taken to be 6 months younger than initially assessed by the local authorities. No order of costs made. Ratio: When balancing the age assessments of two social workers, the one with more contact with the claimant would probably make a better assessment, and the one who had already formed an initial view of him, before conducting the assessment would probably make a worse assessment. No order of costs are made when the story put forth by the claimant has not been accepted by the court in very large measures, and the court has formed its own view, which is a different view from both claimant and defendant. Quotes related to Age assessments: It is not in reality choosing between one of two alternatives, one or the other which must represent the fact. A person s age, if it is to be assessed, can fall within a range. Here I accept what Liverpool says is one end of the range and what Cheryl Hall says is at the other, but the assessment may fall within the limits of that range. 11

12 The social workers were experts. I respect their expertise. There is, however, no suggestion that they could assess the claimant s age on an empirical basis on wholly objective criteria. There is a strong element of subjectivity necessary in their assessment, just as there has to be in mine, and I have to acknowledge that, not being a social worker and not having made age assessments in the past, I have to rely upon evidence of those who have, insofar as it compels me or leads me to a particular conclusion. I appreciate that that almost certainly will not be his actual date of birth, but, for the reasons I have given, on the evidence before me it is the evidence on which it is most fairly and properly in my view to be assessed. R (CJ) v Cardiff City Council [2011] EWCA Civ 1590 Facts: The claimant, an Afghan national living in Iran, illegally entered the UK and claimed to be 15 years old. After conducting an age assessment, the LA concluded that the claimant was probably over 18 on entry to the UK. The claimant then applied for Judicial Review. The first instance Judge held that the burden of proof fell on the claimant, and he had failed to discharge that burden. Decision (on appeal): Notwithstanding the judge s incorrect application of the burden of proof, had the judge decided to assess the claimant s probable age, he would have reached the conclusion that the claimant was over the age of 18. Ratio: When a claimant claims for Judicial Review of an age assessment, the duty falls on the judge to either (a) assess the claimant s probable age or (b) review the LA s assessment within the limits of fair process and Wednesbury reasonableness. The judge should not approach the case on the basis that there is a burden of proof which falls on the claimant that he/she is a certain age. As (by his litigation friend the Official Solicitor) v The London Borough of Croydon [2011] EWHC 2091 Facts: The claimant seeks an order quashing age assessments conducted by the defendant and a declaration as to his age and date of birth. Decision: The court quashed the age assessments conducted by the defendant and made a declaration as to his age and date of birth, in an order in rem, binding for all purposes and on everyone unless and until it is set aside. The claimant is also entitled to the entirety of his costs, since the claimant clearly won, and the conduct of the defendant s discovery exercise left much to be desired. Ratio: A LA s age assessment can be quashed, if not Merton compliant, and if an alternative age assessment that complied faithfully with the establish guidelines reached a different conclusion. 12

13 The administrative court has the power to give an order in rem for such cases, as the factual question of the claimant s age, once decided, would be relevant to more than one authority. Quotes related to Age Assessment: Thus the supreme court decided that an age assessment by a local authority under the Children s Act to determine whether a claimant is a child is a decision of objective fact which, in disputed cases, can only be determined by the court The decision is a factual one that must be determined on evidence and on the balance of probabilities In practice therefore, when an age dispute arises, the claimant will need to challenge the validity or accuracy of the local authority s age assessment. The challenge will usually, but not invariably involve a challenge to the reliability of the local authority s age assessment. The claimant will seek to show that this process was non-compliant with the Merton guidelines or other accepted assessment standards so that the local authority s assessment of the child s assessed age is not to be relied upon or is one to which little weight should be attached...the conduct of the defendant s discovery exercise left much to be desired, a particular unfortunate turn of events given that the subject-matter of the claim was a vulnerable child whose best interests cried out for speed and prompt discovery. R (FZ) v London Borough of Croydon [2011] EWCA Civ 59 Facts: C was an unaccompanied asylum seeker from Iran. Upon arrival his claim that he was under 18 was accepted by the immigration agency. He was referred to the LA for child welfare services. The LA disputed his age and two social workers carried out an initial age assessment without giving him the opportunity to have an appropriate adult present during the interview. They said that the date of birth and age he gave were inconsistent and could be given little weight as they could not be verified; they assessed his age as over 18 years. The LA gave C no chance to respond to their adverse findings. The judge refused C the permission to bring Judicial Review proceedings concluding that the procedure adopted by the LA had been correct according to previous case law. In particular, the judge found that there was no realistic prospect that, at a substantive fact finding hearing, the court would conclude that C was younger than the LA had determined. Held: 1) When deciding whether to grant permission to bring Judicial Review proceedings, where C sought to have the court determine that his age was not that which the LA had determined, the judge should ask whether the material before it raised a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. If the answer is yes, permission should be refused. If no, permission should normally be granted subject to other discretionary factors such as delay; a constant factual account, initial inconsistency in C s account is capable of being explained, no glaring inconsistencies, no clear reasons why his account was unbelievable. Court not bound by the decision of the social workers. General 13

14 credibility judged by others is not alone sufficient for the court to refuse a factual hearing. In this case, a factual hearing on evidence should have been granted since C s factual case taken at its highest point might succeed. 2) Axiomatic that C should be given a fair and proper opportunity, at a stage when a possible adverse decision was no more than provisional, to deal with important points adverse to his age claim (eg, absence of supporting documents, inconsistencies, a provisional conclusion that C is not telling the truth). Also that children or vulnerable people should have the opportunity to have an appropriate adult present when interviewed; in this case, the LA s failure to satisfy these procedural requirements contributed to the decision to give permission to proceed with the Judicial Review claim. 3) The Administrative Court does not habitually, and is not equipped to make a factual determination of C s age on contested evidence. Appropriate to transfer to the matter to the Upper Tribunal under s31a(3) of the Senior Courts Act Comments on correct procedure for age assessments: - Refers to the Merton Guidelines - Suggestion (although not only way in which fairness may be achieved) that after the interview, the social workers could get together to discuss anything which seems inconsistent in C s statement and then go back to ask him again. This process could be repeated several times. The young person may be able to deal with points there and then, or may say he needs more time, e.g. to obtain more documents. Helpful comments: - P753, Para D & E: There is an analogy between the court withdrawing a factual case or matter from the jury in defamation proceedings and the court refusing permission to bring Judicial Review proceedings upon a factual issue as to the C s age. In defamation cases, the parties are entitled to a jury trial on material issues of fact; however, it is open to the judge to come to the conclusion that that the evidence, taken at its highest, is such that a properly directed jury could not properly reach a necessary factual conclusion. In these circumstances, it is the judge s duty to withdraw that issue from the jury. At the permission stage in an age assessment case, the court should ask whether the material before the court raises a factual case which, taken as its highest, could not properly succeed in a factual hearing. R on the application of U v London Borough of Croydon [2011] EWCH 3312 (Admin) Facts: C sought to challenge by way of Judicial Review the LA s determination of his age. C arrived in the UK and claimed to be 14, although he doesn t know his exact date of birth. LA concluded that he was two years older than he claimed on the basis of an age assessment. Held: the LA s assessment was correct on the basis of the information available Guidelines for age assessments: 14

15 - The court is not deciding whether it has been shown on the balance of probabilities that a particular date is the true date of birth. The court 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 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 - First, an assessment should be made. Only if the evidence does not enable an assessment to be made should the court fall back on the burden of proof. This approach is particularly relevant in age assessment cases because it must be remembered that the LA has already given the person the benefit of the doubt when assessing his/her age. - In AS v Croydon [2011] EWCH 2091 (Admin), HHJ Thornton set out the way in which age assessments should be conducted by LAs (adopting the Merton guidelines [2003] as approved by the Court of Appeal in FZ v Croydon [2011] EWCA Civ 59, CA: Criminal Case Law: An appropriate adult should accompany the child and be present during interview A full and careful explanation should be given to the child of the nature of the assessment and its purpose. A careful check should be made to check that there is full understanding between interpreter and child (interpreter should also be skilled in both language and dialect of the child, and have experience of this situation) Assessors should pay attention to the level of tiredness, trauma, bewilderment and anxiety of the child and his or her ethnicity, culture and customs should be a key focus throughout the assessment. Assessors must take a history from the child. All relevant factors should be taken into account including, but not limited to, physical appearance and behaviour. The objective is to undertake a holistic approach each interview should, if practicable, be conducted by two assessors who have received appropriate training and experience for conducting age assessments on young and vulnerable children The assessors should establish as much rapport as possible with the child ( joining ), should ask open-ended non-leading questions using, as appropriate, circular questioning methods. Should be mindful of the child having been coached. The standard practice should always be giving the child the benefit of the doubt. The child should have a fair and proper opportunity to answer any potentially adverse findings at a stage when an adverse decision is no more than provisional. Conclusions reached by assessors should be explained with reasons which, although may be brief, should explain the basis of the assessment and any significant adverse credibility or factual finding The reasons should be internally consistent and should not exhibit any obvious error or inadequate explanation for not accepting any apparently credible and consistent answers of the child. R (HBH) (Disputed Minors) v SSHD [2009] EWHC

16 Facts: When HBH arrived in the UK and claimed asylum, he told an immigration officer that he was 17. At first, no one challenged his claimed age. But the following day, another immigration officer decided he was over 18 because of some answers he gave in interview. This assessment, described to the court as one based on appearance and demeanour, was held by the judge to be wholly inadequate, because of its very shaky foundation age assessment is acknowledged to be extremely difficult and needs to be performed over a period by trained professionals and because of the seriousness of the consequences. It led to his prosecution for failing to produce travel documents, in an adult magistrates court, his plea of guilty on advice from the duty solicitor, a remand in Chelmsford prison, and a sentence of eight months in a Young Offenders Institution none of which would probably have happened if his claimed age had been accepted, because of official policy against prosecution of minors for the offence. There was obvious confusion over his age, as the sentencing court had his age as 17 and the YOI held him in its wing for 16- to 17-year-olds. At the end of his sentence, HBH remained in immigration detention, on the basis of the faulty Home Office assessment despite the fact that by then, the Home Office had been forced by the courts to revise its policy on assessing age and to call in qualified social workers when age was disputed. Subsequently, a consultant paediatrician and two social workers assessed his age at 17, as he had claimed, and he was released from detention and given discretionary leave to remain until his eighteenth birthday. The declaration by the High Court that his assessment as an adult was illegal opens the way for HBH to have his conviction quashed. Issue: Whether the methodology in place at the time to assess the age of an asylum-seeker who claimed to be under the age of 18 was unlawful in the context of deciding whether to prosecute them for an immigration offence. (para 39) Decision: The court held that the methodology used to assess HBH s age was flawed on the basis of use of appearance and demeanour as a key factor and remitted the s.142 application back to the Magistrates Court. The Judge also interpreted section 142 Magistrates Court Act 1980 widely, so that a conviction could be set aside, notwithstanding that the setting aside of his conviction and the order for a retrial could have the effect of setting aside the finding about his age. The conclusion was that referring an age dispute case for criminal prosecution without determination as to his age was unlawful. Ratio: 1) The method of determining the age of young asylum seekers based on appearance and demeanour does not strike a balance between the desirability of safeguarding the welfare of those who are genuinely under the age of 18 against the importance of maintaining an effective system of immigration control (para 40). The method used to assess the age of asylum seekers for the purpose of deciding whether they should be detained should not be the same method used to decide whether to prosecute them for an immigration offence. The use of this method would equally fail to strike a balance between the needs of immigration control and ensuring that asylum seekers under the age of 18 were not inappropriately prosecuted. (para 44) 2) The method of determining age based on appearance and demeanour is highly risky especially with borderline cases of people nearing their 18 th birthdays from unfamiliar ethnicities, culture, education, and background. Information received should be processed in context of these. (para 45) Quotes on Age Assessment: 16

17 Stanley Burnton J pointed out in Merton that there was no reliable anthropometric test to determine age, and for someone who was close to 18 there were no medical or other scientific tests which could assess their age with precision. To obtain any reliable medical evidence, one has to go to one of the few paediatricians who have experience in the field. In the absence of such evidence, appearance and demeanour may justify a provisional view, but it was only in an obvious case that appearance and demeanour alone would be sufficient. It was important, therefore, in such cases for the decision-maker to find out about the person's background namely their family, their education and what they have done and to assess that information against the background of their ethnicity and culture. (para 45) In the circumstances, there are a number of reasons why the policy of assessing age based only on whether appearance and demeanour strongly supported the asylum-seeker's claim to be under the age of 18 contravenes the Merton guidelines and is therefore flawed. It does not distinguish between those cases in which whether an asylum-seeker is 18 or under 18 is obvious and those in which it is not. It treats the conclusion based on appearance and demeanour alone as determinative, not provisional. And procedural fairness of the kind which Stanley Burnton J thought was important namely, telling the asylum-seeker of the features of their appearance and demeanour which the decision-maker was minded to hold against them so that they could respond to it, and not giving adequate reasons for the conclusion about their age was lacking. It may be that the sort of evidence which the courts should take into account when determining the age of a defendant whether under section 99(1) of the Children and Young Persons Act 1933 or section 164(1) of the Powers of Criminal Courts (Sentencing) Act ; should take these points on board, (para 46) R v O [2008] EWCA Crim 2835 Facts: D was arrested whilst on board a coach from the UK to France. She was asked for ID at Dover and handed over a Spanish ID card with the date of birth The ID was clearly not hers. It later became clear that she was a Nigerian national who had arrived in the country legally with her own passport. However, she had had the passport stolen in the meantime. She had fled Nigeria in order to avoid a forced marriage and had become a victim of trafficking, having been forced into prostitution to pay back the flight cost. She was trying to escape the traffickers in the UK by meeting relative in France. A social worker at the The Poppy Project (set up by Ministry of Justice) concluded that R was likely to be a child (17, possibly younger). Issue: The Crown Court made no enquiries into the D s age, accepting that she was 17, despite the report issued by The Poppy Project. No consideration of any kind was given to any need to protect the appellant as a child or young person, even though aged 17 or under, she should have been proceeded against, if at all, in the Youth Court. Decision: The case should not have been sent to the Crown Court. The Court was obliged to enquire into the appellant s age (see s.99(1) Children and Young Persons Act Helpful comments: - The second ground of appeal invokes the Council of Europe Convention on Action against Trafficking in Human Beings (Council of Europe Treaty Series 197/1975). A prime purpose of this convention is to protect the human rights of the victims of trafficking. It is clear that the particular focus of the Convention is the protection of trafficked children: Article 10(3) provides that where the age of a victim is uncertain, and there are reasons to believe that he or she is a child (under 18, article 4D) then he or she is presumed to be a child. UK is a signatory but has not 17