When a child might be a child and when a child might not be a child

Wed, 17 Apr 2019

Age Determination. New Case from the High Court.

Age dispute case have been notoriously difficult to deal with, both for the Courts, but also for the Local Authorities and litigants involved.

Before turning to the new case, it is worth remembering that in R (on the application of) S (by his litigation friend) v London Borough of Croydon, ECHR intervening [2017] EWHC 265 (Admin), Mr Justice Lavender had considered the statutory provisions commonly raised in such cases and he also referred to the Statutory Guidance issued in July 2014 by the Secretary of State in “Care for unaccompanied and trafficked children”.  He helpfully set out the route map for how such cases dealing with interim relief had to be analysed.

The Statutory Guidance at paragraph 1 refers to the context of age dispute cases:

 “Unaccompanied asylum seeking children and child victims of human trafficking are some of the most vulnerable children in the country. Unaccompanied children are alone, in an unfamiliar country and are likely to be surrounded by people unable to speak their first language. ... Both groups may have experienced emotional trauma in their country of birth, in their journey to the UK or through their treatment by adults in the UK. They are likely to be uncertain or unaware of who to trust and of their rights. They may be unaware of their right to have a childhood.”

Paragraph 22 of the Statutory Guidance is headed “Age determination”,

Many unaccompanied and trafficked children arrive in the UK without documentation or with fake documents. Where the age of a person is uncertain and there are reasons to believe that the person is a child, that person is presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with Article 10(3) of the European Convention on Action against trafficking in Human Beings.”

The sub-paragraph 1 of paragraph 7 of the Statutory Guidance defines child in the following terms:

“Child: anyone who has not yet reached their 18th birthday. ‘Children’ therefore means ‘children and young people under the age of 18’ throughout this guidance. Note that, where the person’s age is in doubt, they must be treated as a child unless, and until, a full age assessment shows the person to be an adult.”

Now a new case, decided last week by Mr Justice Pepperall provides further law on dealing with interim relief cases. In R (on the application of K) v Milton Keynes Council (9 April 2019) it has been held that no full age assessment was required in clear cases and it was not properly arguable that the authority had acted unlawfully when relying on its short-form assessment. The Court refused the renewed application for interim relief whereby the Claimant, who had sought asylum, was thought to be significantly over 18 by the Local Authority in its short-form assessment

No full transcript is yet available of the judgment, but short reporting to date provides details of the background and what was held.

In 2018, K, an Ethiopian national, entered the UK unaccompanied and claimed asylum. He claimed to be 16 years old, but social workers assessed his age as significantly over 18. The written record of that assessment concluded that K was an adult not in need of child services. Accordingly, he was housed in adult accommodation pending the outcome of his asylum claim. K's claim was referred to solicitors by the Refugee Council, which was concerned with the possibility of K being an asylum-seeking child without support. In 2019, the local authority defended its age assessment of K, asserting that it had been undertaken by two qualified social workers who had direct experience of the age assessment process. The authority accepted that it had not carried out a full assessment, but contended that there had been no need for one in view of the social workers' initial view; it asserted that it had observed the guidelines set out in caselaw. The authority argued that no significant material had been made newly available to suggest that it ought to have reached a different conclusion. It was willing to undertake another age assessment, but did not propose to accommodate K as a child in the interim. K brought a claim for judicial review of that decision to refuse to provide support pending a full age assessment and sought interim relief. Considering the application on the papers, the court found that the balance of convenience lay in favour of continuing K's current adult placement; it did not accept that a local authority was obliged to grant interim relief pending reconsideration of its decision.

K argued that the court had failed to take account of the fact that the authority had agreed to conduct a full age assessment compliant with the principles set out in R (on the application of B v Merton LBC [2003] EWHC 1689 (Admin). He argued that it was well established that physical appearance and demeanour provided a notoriously bad basis for the assessment of age. He further criticised the fact that the short-form assessment had been conducted in a police station without the presence of an appropriate adult and that accordingly it had been procedurally unfair. He argued that it was irrational to rely on an age assessment that was now being revisited and queried whether the authority would approach that assessment with an open mind. Relying on Merton, which stated that, in an obvious case, the appearance of the applicant alone would require him to be accepted as a child or, conversely, justify his being determined to be an adult, in the absence of compelling evidence to the contrary, the authority argued that its assessment had been caselaw compliant. Relying also on Home Office guidance, it highlighted that it was permitted to conduct a short-form age assessment other than in the presence of an adult and that it followed that it could be undertaken in a police station; the key point was that full procedural safeguards were not necessarily required in a short-form local authority age assessment.

The Judge held that unlike in R (on the application of S) v Croydon LBC [2017] EWHC 265 in the instant case, the authority had already conducted an age assessment. It had been recognised in Merton that no full assessment was required in clear cases and it was arguable that it was not unlawful for the authority to decide not to conduct a full assessment; the full rigour of any such assessment was reserved for cases of doubt, Merton was applied. There was no evidence with which to challenge the authority's decision that it was a clear and obvious case; the evidence was silent other than the concerns of the Refugee Council. The court was not satisfied that K had established a properly arguable case that the authority had acted unlawfully when relying on the short-form assessment in denying K support and accommodation under the Children Act 1989.  

Abid Mahmood is a barrister specialising in Public and Administrative Law, immigration, human rights, court of protection and local government. 

He has been recognised for decades in legal directories as being one of the foremost practitioners in his chosen areas of practice. He has appeared in many leading cases at all levels of courts, including at the Supreme Court and Court of Appeal. He has also been sitting as a Judge for over 13 years. He continues to appear in cases and advise in writing and conference across England and Wales from No5 Barristers' Chambers.


Related articles

The government has introduced into parliament a Victims and Prisoners Bill. This follows the “Root and Branch Review” of the Parole Board previously launched by the Secretary of State for Justice, and makes a number of provisions in relation to both victims and offenders....

Date: Fri, 31 Mar 2023
Local Authority had a duty to age assess putative child independently of a Home Office assessment and case is not academic just because the Claimant has turned 18: David Gardner represents the Claimant in a successful judicial review...

Date: Fri, 10 Feb 2023
On 26 July 2022 the NGO Humane Being filed an application at the European Court of Human Rights...

Date: Mon, 08 Aug 2022