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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 authoritys 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 authoritys 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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