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Judges can now decide who is a 'child', rules Supreme Court
2 December 2009
In a landmark decision last week, the Supreme Court ruled that
where the assessment of the age of an individual is disputed, this
issue should now be decided by a court.
In the joint hearing of R(A) v LB Croydon and R(M) v LB
Lambeth [2009] UKSC 8, two young immigrants, A and M, sought
accommodation under Section 20(1) of the Children Act 1989.
However, they were refused this as the relevant local authorities
assessed them to be at least 18, and so adults. A and M argued that
in cases of disputed age, the court must decide whether a person is
a child, with the burden of proof being the balance of
probabilities. The respondent local authorities disagreed, and
argued for a continuation of the current position, where age
assessments were a matter for the local authority alone to decide,
with judicial scrutiny of the local authority’s decision limited to
judicial review.
The Supreme Court agreed with the applicants. In the leading
judgment, Lady Hale ruled that the assessment of age is not an
exercise of discretion by a local authority. It is a finding of
fact. If the local authority’s determination of the age is
contested, then as with other factual disputes, a court should
decide the issue.
Local authorities have to make age assessments with increasing
frequency, given the growing number of migrants and young asylum
seekers who claim to be under 18, but have no formal
identification.
There seem to be several procedural options for applying for an
age assessment by the court. It should be possible to bring a
‘specific issue’ application under Section 8 of the Children Act
1989, as well as a free-standing application under Part 8 Civil
Procedure Rules, and also an application to the Administrative
Court.
Guidance for the conduct of age assessments was given in 2003 in
R(B) v London Borough of Merton [2003] EWHC 1689 (Admin).
A Merton-compliant age assessment should contain all the evidence a
local authority would want to rely upon at the hearing, and so a
court application by an individual challenging the assessment
should not force the local authority to rush around gathering new
evidence.
However additional resource will be needed to cover the hearing
of these applications. The Merton guidelines require an age
assessment to be signed by two individuals, and both should be
ready to give oral evidence at the hearing. This in turn flags up
for local authorities a need to give their age assessors witness
training.
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