Age assessment: practice guidance

Case Name

Issue

Outcomes

[2017] CSOH 122

• AU held that individuals seeking to challenge an age assessment in Scotland can do so by Declarator OR Judicial Review in its fact-finding sense as set out in R(A) v London Borough of Croydon [2009] UKSC 8.
• Held that Declarator is a competent remedy and Judicial Review is the recommended procedure.

[2017] EWHC 265 (Admin)

• A local authority is exercising its social services functions towards children not merely when actually providing support to children, but also when carrying out ancillary functions such as determining which individuals are and are not children.
• It was arguable that the local authority should treat young people whose age had not yet been determined as children in order to comply with its duties under section 11 of the Children Act 2004 (c.f. s.17 Children (Scotland) Act 1995).
• Adult hostel accommodation pending the outcome of the age assessment was unsuitable for the young person in the circumstances.
• The local authority had acted unlawfully in refusing to support and accommodate the young person pending age assessment.

R (AS, Francesco Jeff) v Kent County Council

[2017] UKUT 00446 ( IAC)

Benefit of the Doubt

• The proper application of the 'benefit of the doubt' in age assessment cases is that where, having considered the evidence, the decision maker concludes there is doubt as to whether an individual is over 18 or not, the decision-maker should conclude that the applicant is under 18.
• When establishing a specific date of birth, the 'benefit of the doubt' requires a sympathetic assessment of the evidence.

• How, and to what extent, the stages of dental development are indicative of age (and the extent to which it can been assessed by a dental examination) is a matter of significant debate.
• Dental assessment techniques – Mandibular Maturity Markers ( MMMs) – Root Pulp Visibility ( RPV) and Periodontal Ligament Visibility ( PLV) are unreliable.

R(ZM and SK) v London Borough Of Croydon

[2016] UKUT 559 ( IAC)

Dental Assessments

• The Croydon v Y case should not be read as an absolute prohibition on a person from refusing to undergo a dental examination.
• X-rays for the purpose of age assessments are deemed inaccurate and unethical by the British Dental Association, but that information from dental x-rays may provide some assistance in age assessments.
• Judges should be prepared to question the basis of opinions in a report and should be wary of accepting age assessments that rely on the reputation of the author rather than the detail, consistency and currency of the data.

London Borough of Croydon v Y

[2016] EWCA Civ 398

Dental Assessments

• In order to continue his claim against the LA, claimant would have to agree to an age assessment by means of a dental X-ray
• Accepted that dental x-rays are controversial but it was not for the court to decide whether this was the case or not and this cannot be the reason for refusing an order.

R(GB, Francesco Jeff) v Oxfordshire County Council

[2015] UKUT 429 ( IAC)

Documentary Evidence

• It is possible for age to be proved on the basis of documents alone which prima face confirm the individual's stated age.
• Such documents must be considered as evidence and weighed accordingly, even if the manner by which they were obtained seems implausible.

Home office v VS

[2015] EWCA Civ 1142

Home Office Reliance

Detention

• Where there is a dispute over the child's date of birth and there is a local authority age assessment, the Home Office is required to make reasonable inquiries in order to arrive at an informed decision on the issue of the child's age.
• The Home Office is required to obtain the reasons on which the conclusion (of age) was based.
• The Home Office unlawfully detained the child and ought not to have relied on a mere superficial explanation of the local authority's age assessment.

ZS (Afghanistan)

V Secretary of State for the Home Department

[2015] EWCA Civ 1137

Merton Compliance

• " Merton compliant" means compliant with the requirements set out by Merton AND subsequent case law. However, the law at the time of the assessment applies.

AS v London Borough of Croydon

[2011] EWHC 2091 (Admin)

Assessment Approach

• Most appropriate age assessment approach is " to use a holistic evaluation, incorporating narrative accounts, physical assessment of puberty and growth, and cognitive and behavioural and emotional assessments" undertaken by social workers with relevant training.

R(FZ) v London Borough Council of Croydon

[2011] EWCA Civ 59

Assessment Approach

• Young person should be given a proper opportunity, as part of the interview process, to respond to any points which the interviewers considered adverse to the young person's case prior to a decision being given.
• A young person should have the opportunity to have a responsible adult present at the interview with them.

R(PM) v Hertfordshire Council

[2010] EWHC 2056 (Admin)

First-Tier Tribunal Assessments

• If the First-Tier Tribunal (Immigration & Asylum Chamber) assess a young person at a different age to the local authority, the local authority is not bound by this assessment.
• It is instead for the local authority to conduct a reassessment taking into account the Tribunal's findings and evidence before it.

MC v Liverpool City Council

[2010] EWHC 2211 (Admin)

Approach of Courts

• When deciding a young person's age, the court may reach its own conclusion as to the young person's age, different to the age given by both the young person and the local authority.

R(A) v London Borough of Croydon; R(M) v Lambeth

[2009] UKSC 8

Approach of Courts

• The local authority may decide if a young person is taken to be a child for eligibility for support under Children Act 1989
• If the above is disputed, the question of whether someone is a child for the purposes of s.20(1) of the Children Act 1989 is a decision for the court as a matter of established fact

A v London Borough of Croydon & SSHD; WK v Kent County Council & SSHD

[2009] EWHC 939 (Admin)

Benefit of Doubt

Home Office Reliance

Medical Reports

• A young person should receive benefit of the doubt if the LA has doubt about his/ her age.
• Unless satisfied that the local authority's assessment is flawed, the Secretary of State will rely on that assessment
• Local authorities cannot completely disregard medical reports from paediatricians, but they decide how much weight to attach to them and are entitled to prefer the view of the assessor.

R(B) v Merton London Borough Council

[2003] 4AER 280

Assessment Approach

• Except in clear cases, age should not be determined solely on basis of physical appearance.
• Background of the young person should be sought, e.g. family history, education etc.
• Local authority should not simply adopt decision of Home Office, but may take information obtained by the Home Office into account.
• Interpreter should be present at interviews.
• Detailed note of interviews should be kept.
• Young person should have inconsistencies or doubts put to her to allow her to respond.
• Local authority has obligation to give adequate reasons for its decision