Document experts in age assessment disputes: Ask the court’s permission, not its forgiveness

In this judicial review case concerning MS, an Afghan national, the court in MS, R. (On the Application Of) v Kent County Council [2024] EWHC 2661 (Admin) (22 October 2024) was tasked with evaluating the legitimacy of Kent County Council's age assessment, which had significant implications for MS's treatment under the Children Act 1989. 

Judicial review case summary

The case hinged on the authenticity of MS's tazkira, an official Afghan identity document, which he presented to substantiate his claimed date of birth. This document's reliability was central to the dispute, leading to a detailed examination of expert evidence and procedural adherence in judicial review proceedings.

One of the key principles arising from this case is the importance of a meticulous and fair age assessment process, particularly when it affects the rights and welfare of an individual under the Children Act 1989.   The judge ruled that the evidence from at least one of the Claimant’s experts was second hand hearsay, and could not be regarded as expert testimony.  He also ruled that the other expert should limit his evidence to document examination of the tazkira.  The Home Office’s expert demonstrated that the tazkira had been altered in at least one place, raising doubt as to its overall reliability. The judge found there was a serious issue to be tried, particularly given the evidence he had seen of the claimant’s vulnerability.

The court's decision

The court's decision to grant interim relief, requiring the local authority to treat MS according to his claimed age pending further review, underscores the principle of giving the benefit of the doubt to the individual when significant rights and protections are at stake.

The court's reliance on expert evidence highlights another fundamental principle: the necessity for credible and reliable expert testimony in judicial proceedings. The conflicting expert opinions on the tazkira's authenticity illustrate the challenges courts face in determining the truth in complex cases involving foreign documents. 

The court's approach, favouring a cautious and balanced assessment of the evidence, reflects a commitment to ensuring that justice is based on a solid foundation of reliable information.

Furthermore, the case emphasises the critical role of procedural rigour in judicial review.  Neither party had sought the court’s permission for expert evidence.   The court reminded the parties of the need to comply with the Civil Procedure Rules, particularly regarding the requirement to obtain permission to rely on expert evidence.

Conclusion

The Civil Procedure Rules are there to ensure that the judicial process is fair, transparent, and consistent, preventing any party from gaining an undue advantage.

The application of the Children Act 1989 in this context also brings to light the broader principle of the state's duty to protect vulnerable individuals, particularly unaccompanied minors and asylum seekers. The Act's provisions are designed to ensure that children and young people receive the necessary support and protection, reflecting a societal commitment to safeguarding the welfare of the most vulnerable.

In granting interim relief and staying the case, the court also demonstrated the principle of minimising potential injustice. By treating MS according to his claimed age while the Council’s review of new evidence was pending, the court aimed to prevent the possible harm that could arise from incorrect age assessment.

This approach aligns with the overarching principle of the legal system to prevent harm and protect rights, particularly in cases where there is a significant risk of injustice.

Key legal principals

The case highlights several key legal principles:

1. The necessity of fair and thorough age assessments in protecting individuals' rights under the Children Act 1989.
2. The importance of credible and reliable expert evidence in judicial decision-making.
3. The requirement for procedural rigour and adherence to rules about seeking permission for expert evidence in judicial review proceedings.
4. The duty of the state to protect vulnerable individuals, particularly unaccompanied minors and asylum seekers.

For more information about the experts used in this case and the judge’s approach to expert evidence contact us.