Child or not? The future of age disputes

January 27, 2010

The future of age disputes has been recast by the decision of the Supreme Court last November that the Administrative Court must decide for itself whether a person is a child for the purposes of section 20 of the Children Act 1989. Christopher Buttler and Tom Amraoui look at the Supreme Court’s decision and its implications for the future.

Background

By section 105(1) of the Children Act 1989, a “child” means a person under the age of 18. Under 20(1) of the 1989 Act, a local authority must (so long as certain conditions are met) provide a child in need within their area with accommodation. Who decides whether someone is a child or not?

The legal and practical ramifications of the decision are profound. If a young person is assessed to be a child, then not only will s/he be owed duties by the local authority under sections 20(1) and 20(3). The outcome of an age dispute will also affect an asylum-seeker’s entitlement to stay in the country in accordance with Home Office policies. Unaccompanied asylum-seeking children will be looked after by the local authority’s children’s services department rather than by the UK Borders Agency while their claims are decided.

It has fallen to local authorities to reach decisions on a person’s age. In general, that decision can only be reached following a process of assessment.

The content and conduct of age assessments have been shaped by case law over recent years. Following the decision of Stanley Burnton J in R (B) v. Merton [2003] 4 All ER 280, social workers needed to ensure that age assessments were “Merton compliant”. That meant, among other things, that a social services department cannot simply adopt a decision made by the Home Office; that, except in clear cases, age cannot be determined solely on the basis of the applicant’s appearance; and that, while reasons must be given, they need not be long or elaborate.

Following the Merton decision, the Administrative Court has, with some refinements, scrutinised local authority age assessments in accordance with the traditional judicial review principles of fairness and rationality. The question for the Court has been “Did the local authority reach a rational conclusion” and not “Did the authority get it right?” Authorities were free to make incorrect decisions, so long as they did not act perversely.

The Supreme Court’s decision

That framework has now been swept away by the Supreme Court’s decision in R (A) v. LB Croydon, R (M) v. LB Lambeth [2009] UKSC 8. The basic question for the Court was simple. When a dispute arises about the age of someone seeking accommodation from a local authority under section 20(1), who decides whether or not he is a child?

The respondent local authorities – supported by the Secretary of State – argued in favour of the status quo: local authorities must decide, subject only to review on principles of rationality and fairness. The appellants – supported by the Children’s Commissioner for England – argued that, in disputed cases, the Court must decide for itself whether a person is a child on the balance of probabilities.

The Court accepted the appellants’ case. Lady Hale’s judgment was influenced by various arguments on statutory construction, including the following:

The definition of “child” in section 105(1) of the 1989 Act is unqualified. It refers to “a person under the age of eighteen” and not “a person who appears to the local authority to be under the age of eighteen”.
The same definition applies throughout the 1989 Act. The Act contains a variety of powers and duties relating to children, some of them voluntary, but many of them coercive. One of these is the power of the police, in section 46, “where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm” to remove a child to suitable accommodation and keep him there. As Lady Hale observed, the use of this power might trigger an immediate application for habeas corpus: the court would then have to inquire into whether the person was indeed a child.

Lady Hale rejected the idea that “children in need” in section 20 was a composite phrase involving professional value judgments with which the courts are ill-equipped to interfere: “... The decision-makers 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 courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.”

Nor was the Supreme Court prepared to accept the argument that the practical consequences of the appellants’ approach would be too burdensome for the courts. Put bluntly, the Supreme Court’s answer was that local authorities will simply have to come up with better quality decisions, so as to reduce the number of challenges.

The future of age disputes

Local authority social workers will continue to make age assessments in the first instance. They will still be bound by principles of fairness and good practice. In particular:

The young person should be given the opportunity to have an appropriate adult present at the age assessment interview: NA v Croydon [2009] EWHC 2357 (Admin).
If the assessment is a redetermination or review of a previous decision of the authority, it should be conducted by different social workers.
The assessment report should be written up shortly after the interview.
Following Merton (see above), if social workers are to rely upon inconsistencies in the applicant’s story to support an adverse decision, these should be put to the claimant at the time for comment.

However, in the event of a disputed assessment, it is now for the Administrative Court to review the correctness – not the rationality – of the authority’s age assessment. The practical consequences of this new approach should not be underestimated.

Both parties will need to file the evidence upon which they seek to rely and, if appropriate, leave should be given to cross examine witnesses. The Court may well have to grapple with complex medical evidence and identity card evidence.

In terms of procedure, the adversarial nature of ordinary litigation is likely to be poorly suited to disputes of this kind. Given the vulnerability, personal history and claimed age of some applicants, it may well be appropriate for proceedings to take place in the judge’s chambers.

The road ahead has become somewhat clearer in light of the recent directions hearing in R (F) .v LB Southwark [2009] EWHC 3542 (Admin). The judgment of Holman J is notable for the following points:

All age dispute cases will be listed for a fact-finding hearing to determine whether or not, on the relevant date, the claimant was a child and, if so, his date of birth.
Age dispute cases remain proceedings for judicial review. In common with all such claims, permission is required before the claim can proceed. Unarguable or academic cases will be refused permission.
The standard of proof is always the balance of probabilities. The burden of proof may depend on the facts and circumstances of individual cases. The decision as to the correct burden, if it arises at all, falls to be taken by the judge at the final hearing, and not at the directions stage.
Holman J took the view that medical reports could not be disregarded by the court, and issued directions permitting paediatric evidence (which already existed in the cases before him) to be admitted in the proceedings and relied upon, updated, and answered (if they wished to do so) by evidence in response from the local authorities.
If local authorities wish to defend their cases by relying on the existing assessments by their social workers, then they must produce those social workers for cross-examination if required.
Fact-finding hearings cannot generally take place without some involvement by the claimants, whose credibility is likely to be in issue. The extent to and manner in which a claimant gives evidence is “quintessentially a matter for the judge at the hearing itself”. Holman J issued a general direction to that effect, leaving open the option of hearing all of part of the proceedings in chambers, or by video link.

Nonetheless, quite how judges will cope with deciding the age of young people from a variety of different backgrounds remains to be seen. In R (F) (above), Holman J referred to the “... evolution of the approach to this type of case... ”. It seems that that evolution will continue for some time to come.

Chris Buttler and Tom Amraoui are barristers at 4-5 Gray’s Inn Square. They are both regularly instructed in community care and other judicial review matters. Chris represented the appellant M in the Supreme Court. They can be contacted on 020 7404 5252 or at This email address is being protected from spambots. You need JavaScript enabled to view it..