Age assessment still an issue despite Supreme Court ruling: Commissioner

There have been some positive changes to age assessments of children seeking asylum since a key Supreme Court ruling in 2009 but also unintended and more negative consequences, a report issued by the Children’s Commissioner has warned.

The report, called The Fact of Age, was commissioned by Maggie Atkinson to see how the ruling in R (A) v London Borough of Croydon [2009] UKSC 8 had affected practice and whether it had improved outcomes for children and young people.

In particular it looked at whether it had improved decision-making in local authorities and how the Administrative Court had adapted as ultimate fact finder to the role handed to it by the Supreme Court.

The report concluded that decision-making often did not function smoothly, and that this could result in children being judged as adults.

It contains a series of recommendations for the judiciary, local authorities and the UK Border Agency (see below). These include that a call for councils to make sure assessments are conducted in line with the Framework for Assessment of Children in Need and their Families.

The report also called on local authorities to ensure that social workers are adequately trained to conduct assessments, and that the young people affected fully understand the process and the options available for challenging the council’s findings.

Maggie Atkinson said "The consequences of getting the decision on a young person's age wrong are serious. Children under 18, deemed by decision-makers to be older, can and do lose part of their childhood. Being judged over 18, they are not given the protections, nor the necessary safeguarding and other services, that they would be entitled to if assessed as children.

"Although there are positive changes our report finds unintended, more negative consequences as well. Different bodies need, together, to prevent both avoidable delays, and children being unsupported after disagreements between organisations.”

The Commissioner claimed that too much of the debate about age assessment had rested on a “mistaken, time-and-resource-intensive search for a ‘magic bullet’” that would give the exact age of a young person seeking asylum, through a single medical measure which is reliable and consistent.

She said: “The science available clearly demonstrates this ‘magic bullet’ does not exist. A consensual approach to age determination, involving different professionals at early stages in a case, merits further investigation. Agreeing a clear, scientifically sound way forward, could ultimately reduce the number of cases reaching trial, court workloads and resource pressures."

The report revealed that in five of the 17 reported judgments since A v Croydon, a declaration was made in favour of upholding the young person’s claimed age. In six cases, the outcome was a declaration in favour of the age assessed by the defendant local authority. In the remaining five cases, the court arrived at a different date of birth.

According to the authors, the research findings suggested that despite having been involved in court proceedings since 2009, very few local authority practitioners were actually aware of the A v Croydon ruling and its implications on age assessment practice and decision making.

“However, despite this ambiguity, the experience of going to court appears to have had a positive impact on age assessment practice, and there is evidence that local authorities are introducing new procedures and making efforts to review existing guidance in order to tighten their standards,” the report said.

It added that there was evidence to suggest that local authority managers and social work practitioners were extremely wary of being litigated against, and that this was having a detrimental impact on decision making in the age assessment process.

“For local authorities the costs involved in going to court, both in terms of money and resources, are prohibitive and many are making the decision to settle out of court rather than pursue a dispute, even if ultimately they stand by their original assessment,” the report said.

It also suggested there was evidence that some social workers were conceding to a young person’s claimed age because having to defend their assessment in court was a new and intimidating development.

Philip Hoult

LIST OF RECOMMENDATIONS

To the judiciary:

1. In all age dispute cases, whether heard in the Immigration and Asylum Chamber of the Upper Tribunal or by the Administrative Court, there should be a procedural presumption that the age disputed person is treated as a child throughout the appeal, including any preliminary or interim stages.

2. Procedural adjustments should always be made to ensure that the Court setting and the conduct of proceedings are child-sensitive, in accordance with existing guidance and best practice, for example as contained in Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance.

3. In the listing of hearings, the “no delay” principle in children’s hearings should be applied to age dispute proceedings at all stages.

The President of the Upper Tribunal should consider providing a separate Guidance Note for Tribunal judges, specifically for the conduct of age dispute hearings. It would be helpful to include in such guidance:

• Advice on the differences between the immigration and asylum appeals functions of the Upper Tribunal and its new age determination function
• Advice that there is no burden of proof in age dispute cases as per CJ v Cardiff along with guidance on the application of the correct standardof proof as per Rawofi (age assessment – standard of proof) [2012] UKUT 00197(IAC))
• Advice on achieving best evidence from child witnesses and in particular the examination and cross-examination of age disputed witnesses and the possibility of obtaining their evidence other than by examination at court
• The consideration of expert evidence and the examination of expert witnesses
• The role of the litigation friend/responsible adult.

4. Training on age dispute cases, including the conduct of child-sensitive proceedings, assessment of the age disputed person’s evidence and an understanding of the range of expert evidence used, its techniques, accepted scientific value, should be provided to all methods and judicial office holders before they hear age dispute cases, whether in the Upper Tribunal or in the Administrative Court. Such training might be developed with the Judicial College as part of the continuing professional development of judges. The Children’s Commissioner is willing to offer her assistance to develop such training.

To local authorities

5. Assessments should be conducted in line with the Framework for Assessment of Children in Need and their Families. This includes adhering to statutory timeframes to respond to referrals and conduct assessments, as well as good practice in inter agency collaborative working. Reference is made to the need to conduct assessments of children seeking asylum and separated from family members with particular care and attention in section 3.58 of the guidance.

6. Social workers should be adequately trained for the difficult task of conducting age assessments. Training should:

• include guidance on how to interpret and adhere to emerging case law
• enable social workers to fully appreciate the impact that a young person’s experience and background will have on the way s/he presents during the assessment process.
• discuss how to analyse and give weight to the information gathered in the assessment process.

7. Local authorities should ensure that the young person being assessed fully understands the process and what avenues are available to them to challenge the findings of the Local Authority assessment.

8. All placements provided for young people who are still in the assessment process, or awaiting the decision on their assessment must be appropriate and in accordance with the statutory guidance laid out in DCSF-15005-2010.

To UKBA and local authorities

9. The UKBA and local authorities should work together on a joint protocol to ensure that disagreements about the age of a young person are resolved and no asylum seeker, child or adult, is left with no support as a result of the two agencies being unable to agree on the age of a young person.