What’s my age again?

The number of cases where the age of an unaccompanied asylum seeking child is in dispute appears to be on the rise. Morris Hill looks at two recent judgments in the difficult area of age assessment and what they mean in practice for local authorities.

Last month the London Borough of Croydon reached agreement with the UK Border Agency, following a long running dispute over the funding of unaccompanied asylum seeking children (UASCs). The Council agreed to accept almost £2m in back payments in compensation for the higher than average levels of child asylum seekers it has – by the end of last year Croydon was looking after 532 child asylum seekers.

This kind of number may not be replicated throughout the country, but it is clear that the numbers of UASCs are having a significant impact on local authority resources. Equally the number of disputed age cases before the courts appears to be increasing. This follows the decision in R (A) v LB of Croydon [2009] 1 WLR 2557, where the Supreme Court held that whether an individual is a child for the purposes of the Children Act 1989 was, upon challenge by judicial review, one of fact for the court itself to decide, rather than it being for the court to review the council’s decision on traditional public law grounds.

In the first two months of this year there have been two important cases relating to the approach that local authorities and the courts should take when there is a dispute over the age of an individual. In R (FZ) v Croydon LBC [2011] EWCA Civ 59 the Court of Appeal provided guidance on two important issues. Firstly the correct approach to be taken by local authorities when assessing the age of young people, and secondly the approach to be taken by the Administrative Court when considering the claim at permission stage.

In endorsing the guidance given to local authorities in R (on the application of B) v Merton LBC [2003] 4 All ER 280, the court held the applicant claiming to be a child should be given a fair and proper opportunity to address and respond to any matters that have led to the assessor reaching a provisional view that they may be an adult. As was recognised by the court, there is still no central government guidance as to how local authorities should conduct age assessments.

Although the court did not wish to be prescriptive as to how applicants should be given an opportunity to respond to a provisional adverse finding, it did make suggestions. Although not appropriate in every case, a formal letter setting out the conclusions it was ‘minded to’ make after an initial interview was one way. This would then allow the applicant to respond to the assessor’s views and reasoning. Alternatively, the assessing social workers could withdraw from the initial interview in order to reach provisional conclusions with reasons, which could then be put to the person to respond to either then or at a later date. The court also held that the claimant should have been given the opportunity to have an appropriate adult available when being interviewed over his claim to be a child.

The court then gave guidance as to the approach that should be taken by the Administrative Court when deciding whether to grant permission to the claimant to bring judicial review proceedings. As per A v Croydon, a claimant was not entitled to permission simply because he asserted that the local authority’s assessment was wrong. A claimant has to show that he has a properly arguable case on the facts in light of the evidence before the court, the local authority’s assessment and other relevant facts. The court should ask whether the material before it raises a factual case which taken at its highest could not properly succeed in a contested hearing and if not permission should be refused. If it could, permission should be granted (subject to other discretionary factors such as delay).

In R (CJ) v Cardiff County Council [2011] EWHC 23 (Admin) the court considered what its approach should be at the substantive hearing once permission has been granted. It held that in those cases where the court is unable to conclude that either party has made out their case, the court has to decide the person’s age on the balance of probability and the burden is on the person to show that they were under 18 at the relevant time.

Both cases, whilst proving useful guidance as to the approach that should be taken by local authorities and the courts, also emphasise the inherent difficulties in age assessment cases. The threshold for obtaining permission to bring judicial review proceedings is relatively low and the risk of prejudice/harm if permission is refused without a full hearing is potentially high. The Cardiff case was in no way out of the ordinary, but the hearing took three days, a number of witnesses gave evidence and the parties had to wait two months for a decision. No doubt the cost of defending the claim was substantial and many local authorities must now take the pragmatic step of calculating the costs and risk of defending proceedings compared to the cost of accepting the person is a child. With certain ‘leaving care’ obligations being extended to those aged 25 on 1 April 2011, such support will be even more expensive.

In age assessment cases, even if the local authority has conducted the age assessment process entirely properly it still runs the risk of the court reaching a different conclusion as to the individual’s age. Although the guidance given by the Court of Appeal is helpful in defending age assessments from attack by way of orthodox judicial review challenges, any such challenges become unnecessary if the claimant succeeds on his argument that as a matter of fact he is a child.

In FZ v Croydon the President of the QBD, who is also the judge in charge of the Administrative Court, raised real concern over the impact of such cases on the Administrative Court. He noted that when the case was heard there were 64 other disputed age assessment cases in the Administrative Court that day. The President suggested that in cases where permission is granted the Administrative Court was not an appropriate forum for making decisions of fact and that cases should be transferred to the Upper Tribunal for determination. It remains unclear whether the Senior President of Tribunals agrees with the President of the QBD given the massive pressures the Tribunal Service finds itself under. This may answer the question of how to ease the burden of the Administrative Court, but local authorities will no doubt continue to make difficult decisions as to whether to defend its position purely on cost, when understandably the claimant has nothing to lose.

Morris Hill is an associate in the local government team at law firm Weightmans LLP. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..