Age assessments and stroppy teenagers

Making accurate assessments of the age of asylum seekers is an extremely difficult and onerous task. Laurence Saffer looks at the guidance handed down by the courts.

Picture the scene – a rainy day in Coventry, a lorry driver taking a comfort break, and a young person cutting a hole in the canvas at the back of the lorry. The police are called. The young person is tired, dishevelled, stroppy and says they are 17 and they are fleeing persecution. Who gets the first call? An overworked, underpaid social worker to be an appropriate adult and an age assessor.

This all too familiar scenario has occurred up and down the country and led to the Supreme Court being asked to rule on the evidential weight of that and subsequent assessments.

The starting point is that the burden of proof is on the claimant to show he is the age claimed and a finding could only be made that he is if the evidence established that (SH (Assessment of Age) Afghanistan [2005] UKAIT 00156). In assessing age, the local authority had to have regard to all relevant information (R (app A) v Liverpool City Council [2007] EWHC 1477 (Admin)).

So how do you do it? The High Court gave guidance in R (app B) v London Borough of Merton [2003] EWHC 1689 (Admin) that except in clear cases age cannot be determined solely on the basis of appearance. Questions should be asked of the claimant and consideration given to his:

1. general background
2. educational background
3. family circumstances
4. history
5. activities
6. ethnicity, and
7. culture.

This was approved in R (app HBH) v SSHD and Essex CPS [2009] EWHC 928 (Admin) where it was noted that there is 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. In the absence of such evidence, appearance and demeanour might justify a provisional view, but it was only in an obvious case that appearance and demeanour alone would be sufficient. In such cases, it was important for the decision-maker to find out about the person’s background and to assess it against the background of their ethnicity and culture.

The most recent guidance considered the inter-relationship between social work and paediatric evidence. The High Court (A v London Borough of Croydon and SSHD; WK v SSHD and Kent County Council [2009] EWHC 939 (Admin)) stated that:

• Social workers involved in the decision-making process for the local authorities had training and substantial experience in assessing the age of unaccompanied asylum seeking children. That did not mean that their decisions were not challengeable, but it did mean that the court should not readily take the view that they were flawed. While it was never possible to be sure that the decision in a particular case was factually correct, the approach adopted by the Secretary of State for the Home Department (SSHD) that, if the decision-maker was left in doubt, the claimant should receive the benefit of that doubt was undoubtedly proper.
• Whether a report from a paediatrician that reached a conclusion contrary to that found by experienced social workers meant that their assessment had to be varied depended on how much weight could be attached to the paediatrician’s opinion. Local authorities and the SSHD could not in general disregard paediatricians’ reports. It was for them to decide how much weight to attach to such reports and it was in a given case open to the decision-maker to attach no weight. Note however from the Court of Appeal (Detamu v SSHD [2006] EWCA Civ 614) the differing view that it is an error of law to give no weight to an expert who had clearly indicated his expertise and the sources of his information.
• Only in rare cases could such reports persuade the decision-maker to reach a different view.
• In respect to giving reasons for rejecting a report, the local authority would only need to say that it had considered the report but was not persuaded that there was anything in it which showed that its experienced social workers’ conclusion was or might be wrong. Note however (FS (treatment of expert evidence) Somalia [2009] UKAIT 00004) that it is crucial to give a reason for rejecting such an opinion.
• If there was some specific matter, such as a credibility finding which for good reason was regarded as erroneous or an observation which could not be accepted, that should be identified. Since the system involved the decision being made by the local authority and the SSHD accepting the decision, it was essential that the SSHD received a full report. Only with such a report could it judge whether the assessment was reliable and complied with the requirements of Merton. It was entirely reasonable that the report should be disclosed to the SSHD. The assessed person should be told that the report would be used not only by the local authority but also by the SSHD (and the court), but there was no need for his written permission for such disclosure.
• The effect on a child of being assessed to be an adult would be serious. It was essential that assessments were made by experienced trained social workers and that all the safeguards to ensure fairness were in place. The system was undoubtedly far from perfect. There was a need for specialist units and the services of properly trained paediatricians, even though medical science could not produce a correct answer. Authorities must take care to ensure that they had done all that was appropriate in carrying out the process of assessment and that the reasons given for the conclusion reached were satisfactory. A medical view was not likely to be any more reliable or helpful than that formed by a properly trained and experienced social worker.
• Provided that the SSHD was satisfied that there had been a proper assessment and that reasons given were satisfactory, it was clearly entitled to give prominence to such an assessment. Giving prominence did not mean that it would prevail in all circumstances and regard was properly had to any other report or material presented. The local authorities were entitled in law to prefer the social workers’ assessment to that of the expert or another paediatrician.

When the case went to the Supreme Court (A v London Borough of Croydon & M v London Borough of Lambeth [2009] UKSC8) the right of the local authority to prefer social work evidence was upheld but it was noted that this is subject to judicial oversight and any decision can of course be subject to Judicial Review or determination by the Asylum and Immigration Tribunal.

Note also the cautionary ruling in R (app Majera) v SSHD [2009] EWHC 825 (Admin) that when assessing age, the attitude and behaviour of professionals in treating the claimant should be considered.

Possible conclusions

1. Take your time
2. Prepare for assessment – prior reading on country of origin education – would child be used to female professionals/interpreters
3. Bear in mind gender issues – boys may be unfamiliar with female authority figures and girls uncomfortable with male authority figures
4. Teamwork
5. Provide detail for reasons
6. Consider everything
7. Use pro forma that does not have central government typographical errors
8. Be prepared to adapt pro forma
9. Post assessment research on country of origin
10. Further assessment – not just one meeting.

Laurence Saffer is a barrister at Park Court Chambers in Leeds.