Merton-compliant age assessments: Social worker guidance

Age assessments can be complex, and differ case by case.  This can present challenges for social workers in deciding whether a comprehensive assessment is necessary. 

Its not unusual for age-disputed asylum-seeking children to enter into the UK and present themselves as children, aged 15, 16 or 17, without any supporting documentation, and for social workers to meet the individual and form the view they are an adult in their mid or late 20s. 

In these circumstances, social workers tend to declare it to be an “obvious” case and so, they do not undertake a detailed ‘Merton-Complaint’ age assessment. The young person may then challenge the lack of a detailed assessment by way of Judicial Review.

The ‘Merton-Complaint’ age assessment arose from B v Merton London Borough Council [2003] EWHC 1689 (Admin). These established guidelines aim to prevent breaches of human rights and ensure the decision reached is fair, lawful, and in the best interest of the young person. Some of the main guidelines include:

• Ensuring the assessment is conducted fairly without any preconceived opinions on the individual’s age
• The young person should be given opportunity to have an appropriate adult present and have this explained to them
• Ensuring a relevant interpreter is provided, if necessary, and if provided, there is a clear and full understanding between the interpreter and the young person
• Conducting a series of interviews that are sensitive to the young person, their experiences and emotional wellbeing
• Taking a holistic approach by considering various factors, including appearance and demeanour, but this should not be the sole deciding factor
• The assessment should be conducted by qualified professionals who are trained and competent to undertake such assessments.  The assessment should be well documented with clear records on how decisions were reached based upon the evidence considered during the assessment
• Giving the benefit of doubt when there is uncertainty regarding the young person’s age and giving them the opportunity to explain their age, circumstances and account

In R (K) v Milton Keynes [2019] 4 WLUK 180 a young person, K. was from Ethiopia and presented himself as 16 years old upon entering the UK. K was determined by professionals to be 24 or 25 years old due to his inconsistent accounts of his journey to the UK, the lack of evidence to prove his age or date of birth, and physical attributes such as his height, prominent Adam’s apple and deep voice, receding hairline, grey hairs and stubble.

Social workers for the Local Authority determined this case to be obvious and therefore, a detailed age assessment did not take place. Subsequently, a judicial review was filed with an application for interim relief. The submissions included an assertion that:

• the short-form assessment was based upon appearance and demeanour which is an unreliable measure of age,
• the assessment was conducted without the presence of an appropriate adult, and did not comply with the Merton principles. 

Within the judgment, Pepperall J noted that the Merton decision recognised that no detailed assessment was required in clear and obvious cases. Detailed age assessments were reserved for cases of doubt.  K had not established an arguable case and there was no evidence to challenge the Local Authority’s decision that K’s case was clear and obvious. Pepperall J determined the Local Authority had acted lawfully in their decision to not proceed with a detailed age assessment, and interim relief was refused.

The Judgment recognises that applications do not demand a detailed age assessment process every time. Here are some examples:

• Paragraph 27 – "there may be cases where it is very obvious that a person is under or over 18. In such cases there is normally no need for prolonged inquiry; indeed, if the person is obviously a child, no inquiry at all is called for. This is reiterated in the ADCS Age Assessment Guidance October 2015”
• Paragraph 35 – "The applicant claims to be a minor but his/her appearance strongly suggests that s/he is over 18 the applicant will be treated as an adult until such time as credible documentary or medial evidence is produced which demonstrates that s/he is the age claimed."
• Paragraphs 37 and 38 – "It is apparent from the foregoing that, except in clear cases, the decision maker cannot determine age solely on the basis of the appearance of the applicant."

"Similarly, the appearance and demeanour of the applicant may justify a provisional view that he is indeed a child or an adult. In an obvious case, the appearance of the applicant alone will require him to be accepted as a child; or conversely, justify his being determined to be an adult, in the absence of compelling evidence to the contrary."

Statutory Guidance 'Care of unaccompanied migrant children and child victims of Modern Slavery November 2017 issue', Care of unaccompanied migrant children and child victims of modern slavery - GOV.UK also states:

"Where the age of a person is uncertain and there are reasons to believe they are a child, that person is presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with Section 51 of the Modern Slavery act 2015. Where an age assessment is required, local authorities must adhere to the standards established within case law. Age assessments should only be carried out where there is a reason to doubt that the individual is the age they claim. Age Assessments should not be a routine part of a local authority’s assessment of unaccompanied or trafficked children.”

The Local Authority has the discretion to make these decisions on a case by case basis, but this must be done with great care, to ensure that there is no doubt in the mind that the individual in question is a child, or is an adult.  

As we always say to our clients – good social work decision making is best supported by clear record keeping showing:

• What request for support was made
• How that was responded to and by whom
• What evidence was gathered and considered – in K it is clear that there was sufficient information to show how carefully issues were considered 
• If the assessment was short form or otherwise – and why
• Why a decision was made – whether that decision was that the person’s age was obvious or not

Good records mean that unmeritorious challenges whether by way of JR or otherwise are much more readily seen off. So it’s worth the investment of management time to ensure they are kept.