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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AS v London Borough of Croydon [2011] EWHC 2091 (Admin) (25 October 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2091.html Cite as: [2011] EWHC 2091 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy Judge of the High Court)
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AS (by his litigation friend the Official Solicitor) |
Claimant |
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and |
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London Borough of Croydon |
Defendant |
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Parishil Patel (instructed by Croydon Legal Services) for the Defendant
This decision was, by consent, determined on the basis of written submissions following the parties' agreement as to the claimant's date of birth.
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Crown Copyright ©
HH Judge Anthony Thornton QC:
A. Introduction
B. The background to the proceedings
(1) The claimant's background
(2) The necessity for conducting age assessments
(1) Section 23(3)(a) of the Children Act 1989 ("the CA") provides that it shall be the duty of a local authority looking after a child to safeguard and promote that child's welfare and to promote that child's educational achievement. Section 7 of the Education Act 1996 requires that local authority to ensure that he is educated effectively;
(2) Section 17 of the CA imposes a general duty upon a local authority to promote the welfare of a child within its area who is in need and section 20 requires it to provide accommodation for that child where there is no person having parental responsibility;
(3) The support provided to an adult asylum seeker, including accommodation and essential living needs, is provided under section 4 and Part 6 of the Immigration and Asylum Act 1999. Such support is "often … less than adequate"[1]. A child is entitled to the more extensive provision of accommodation and support required by the CA;
(4) A child in the care of a local authority is entitled to be "advised and befriended" and to be considered for "assistance" between the ages of 18 and 21 by virtue of section 24 of the CA and to be considered for further benefits if pursuing a planned educational course between the ages of 21 and 24 by virtue of the Children (Leaving Care) Act 2000;
(5) When the Secretary of State exercises any immigration power in relation to a child, that power must be exercised having regard to the need to promote and safeguard that child's welfare by virtue of section 55 of the Borders, Citizen and Immigration Act 2009; and
(6) The Secretary of State will not detain a child save in exceptional circumstances, and then only overnight, and will not remove a failed child asylum seeker for three years until that child reaches the age of 17½ years whichever is the sooner unless there are adequate arrangements to receive and look after that child in that child's country of origin on that child's return.
(3) The age assessment process
"In practice, age determination is extremely difficult to do with certainty, and no single approach to this can be relied on. Moreover, for young people aged 15 – 18, it is even less possible to be certain about age. There may also be difficulties in determining whether a young person who might be as old as 23 could, in fact, be under the age of 18. Age determination is an inexact science and the margin of error can sometimes be as much as five years either side … Overall, it is not possible to actually predict the age of an individual from any anthropometric measure, and this should not be attempted. Any assessments that are made should also take into account relevant factors from the child's medical, family and social history.
We accept the need for some form of age assessment in some circumstances, but there is no single reliable method for making precise estimates. The most appropriate approach is to use a holistic evaluation, incorporating narrative accounts, physical assessment of puberty and growth, and cognitive and behavioural and emotional assessments. Such assessments will provide the most useful information on which to plan appropriate management."
Such assessments are usually undertaken by social workers who have had training and experience in the assessment of an unaccompanied child who has recently arrived in England as an applicant for asylum or for leave to remain.
C. Law relating to age assessments
(1) Context of local authority age assessments
(2) Basis of challenge
"So much depends upon how one frames the question. Put simply, when disputes arise about the age of some-one who is asking a local children's services authority to provide him with accommodation under section 20(1) of the Children Act 1989, who decides whether he is a child or not? Section 20(1) reads as follows:
"(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."
(d) By section 105(1) of the Act, a "'child' means . . . a person under the age of eighteen".
…
13. … The issues have been slightly reformulated for the purpose of the appeals before us, but the first two are closely inter-related:
(i) whether, as a matter of statutory construction, the duty imposed by section 20(1) is owed only to a person who appears to the local authority to be a child, so that the authority's decision can only be challenged on "Wednesbury" principles, or whether it is owed to any person who is in fact a child, so that the court may determine the issue on the balance of probabilities;
(ii) whether the issue "child or not" is a question of "precedent" or "jurisdictional" fact to be decided by a court on the balance of probabilities; and
(iii) whether section 20(1) gives rise to a "civil right" for the purpose of article 6(1) of the European Convention on Human Rights and if so whether the determination of age by social workers subject to judicial review on "Wednesbury" principles is sufficient to comply with the requirement that the matter be determined by a fair hearing before an independent and impartial tribunal.
The construction of section 20(1)
14. The argument on construction, advanced by Mr John Howell QC for A, is quite straightforward. The words of section 20(1) themselves distinguish between the statement of objective fact – "any child in need within their area" – and the descriptive judgment – "who appears to them to require accommodation as a result of" the three listed circumstances – which is clearly left to the local authority. The definition of "child" in section 105(1), which applies throughout the 1989 Act, is unqualified: "a person under the age of eighteen" – not "a person who appears to the local authority to be under the age of eighteen" or "a person whom the local authority or any other person making the initial decision reasonably believes to be under the age of eighteen". Reaching the conclusion that this is what it means in section 20(1) requires, as the Court of Appeal accepted, words to be read into section 20 which are not there.
15. This argument is bolstered by two others. One is derived from the legislative history. Section 20(1) of the 1989 Act is the successor to section 2 of the Child Care Act 1980 which consolidated (without amendment) what had been section 1 of the Children Act 1948 with later legislation. The 1948 Act was an important component of the establishment of the post-war welfare state, bringing together all the disparate powers and duties of the state to look after children who had no families or whose families were unable to look after them properly, and infusing those new duties with a commitment to the welfare of the individual child which had been so lacking before (see Report of the Care of Children Committee, Chairman: Miss Myra Curtis, 1946, Cmd 6922).
16. Section 1(1) of the 1948 Act, reproduced in section 2(1) of the 1980 Act, began "Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen . . .". Section 20(1) of the 1989 Act made various changes. These included raising the age of eligibility to cater for all children, not just those who appeared to be under seventeen. But they also included the change in wording, which no longer limited the duty to those who appeared to the local authority to be under the relevant age. There is nothing in the Review of Child Care Law: Report to Ministers of an Interdepartmental Working Party (DHSS, 1985) or in the white paper, The Law on Child Care and Family Services (1987, Cm 62), which preceded the 1989 Act to cast light on the reasons for the change in wording. But when Parliamentary draftsmen make changes such as this they are normally presumed to have done so deliberately and not by mistake.
17. The second point is that the same definition of "child" applies throughout the 1989 Act. The 1989 Act contains a variety of powers and duties relating to children, some of them voluntary, but many of them coercive as against the child or his parents. Most of the coercive powers, to make orders relating to the care and upbringing of children, depend upon court orders. Clearly, in those cases it is for the court to determine any disputes about the age of the child. But there are some coercive powers which are operated in the first instance by other authorities, subject to bringing the case to court within a relatively short time.
18. One of these is the power of the police, in section 46, "where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm" to remove a child to suitable accommodation and keep him there. This power is not infrequently used to pick up young people who are camping out in railway stations with no apparent place to go. If someone who was not a child was removed in this way, he could apply immediately for habeas corpus and the court would have to inquire into whether or not he was indeed a child. The section does not refer to a "person whom the constable has reasonable cause to believe to be a child" and where liberty is at stake the court would be slow to read it in that way.
19. A similar case is perhaps more telling for our purposes because it is contained in section 25, which, like section 20, appears in Part III of the 1989 Act, entitled "Local Authority Support for Children and Families". Section 25, and the regulations made under it, place limits on the circumstances in which "a child who is being looked after by a local authority" may be placed in "accommodation provided for the purpose of restricting liberty". A child who is being "looked after" by a local authority means any child who is subject to a care order or a child who is provided with accommodation by a local authority under their social services functions, which include section 20(1) (see 1989 Act, section 22(1)). The regulations allow a child to be placed in secure accommodation – that is, to be locked up – for up to 72 hours without the authority of a court (Children (Secure Accommodation) Regulations 1991, SI 1991/1505, reg. 10(1)). Again, if a person who was not a child was locked up in this way, he could apply for habeas corpus and the court would have to enquire into whether or not he was a child. There is nothing to suggest that the power can be exercised in relation to someone whom the authority reasonably believes to be a child.
…
26. These days, Parliamentary draftsmen are more alive to this kind of debate. The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is "in need" requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and "Wednesbury reasonableness" there are no clear cut right or wrong answers.
27. But the question whether a person is a "child" is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.
28. … But in this case it appears to me that Parliament has done just that. In section 20(1) a clear distinction is drawn between the question whether there is a "child in need within their area" and the question whether it appears to the local authority that the child requires accommodation for one of the listed reasons. In section 17(10) a clear distinction is drawn between whether the person is a "child" and whether that child is to be "taken to be" in need within the meaning of the Act. "Taken to be" imports an element of judgment, even an element of deeming in the case of a disabled child, which Parliament may well have intended to be left to the local authority rather than the courts.
29. I reach those conclusions on the wording of the 1989 Act and without recourse to the additional argument, advanced by Mr Timothy Straker QC for M, that "child" is a question of jurisdictional or precedent fact of which the ultimate arbiters are the courts rather than the public authorities involved. This doctrine does, as Ward LJ pointed out in the Court of Appeal [2008] EWCA Civ 1445, [2009] PTSR 1011, para. 19, have "an ancient and respectable pedigree". Historically, like the remedy of certiorari itself, it was applied to inferior courts and other judicial or quasi-judicial bodies with limited jurisdiction. Thus a tithe commissioner could not give himself jurisdiction over land which had previously been discharged from tithe (Bunbury v Fuller (1853) 9 Ex 111), [1853] EngR 768; and a rent tribunal could not give itself jurisdiction over an unfurnished letting (R v Fulham, Hammersmith and Kensington Rent Tribunal, Ex p Zerek [1951] 2 KB 1). Although of course such a body would have to inquire into the facts in order to decide whether or not to take the case, if it got the decision wrong, it could not give itself a jurisdiction which it did not have.
30. In R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74, the same principle was applied to the power of the Home Office to remove an "illegal entrant". The existence of the power of removal depended upon that fact. It was not enough that an immigration officer had reasonable grounds for believing the person to be an illegal entrant. As Lord Scarman put it, ". . . where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied" (p 110).
31. This doctrine is not of recent origin or limited to powers relating to the liberty of the subject. But of course it still requires us to decide which questions are to be regarded as setting the limits to the jurisdiction of the public authority and which questions simply relate to the exercise of that jurisdiction. This too must be a question of statutory construction, although Wade and Forsyth on Administrative Law suggest that "As a general rule, limiting conditions stated in objective terms will be treated as jurisdictional" (9th ed (2004), p 257). It was for this reason that Ward LJ rejected the argument, for he regarded the threshold question in section 20 as the composite one of whether the person was a "child in need". This was not a limiting condition stated in wholly objective terms so as to satisfy the Wade and Forsyth test (para. 25).
32. However, as already explained, the Act does draw a distinction between a "child" and a "child in need" and even does so in terms which suggest that they are two different kinds of question. The word "child" is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.
33. … the public authority, whether the children's services authority or the UK Border Agency, has to make its own determination in the first instance and it is only if this remains disputed that the court may have to intervene. But the better the quality of the initial decision-making, the less likely it is that the court will come to any different decision upon the evidence. If the other members of the Court agree with my approach to the determination of age, it does not mean that all the other judgments involved in the decision whether or not to provide services to children or to other client groups must be subject to determination by the courts. They remain governed by conventional principles."
(3) Age assessment in Immigration cases
"44. Other agencies of the state are unlikely to have the same experience of age assessment as social workers who are trained in the necessary techniques and have substantial experience in applying them. As a matter of practice, therefore, although not of law, a social worker assessment of the precise age of a child may well prove to be the decisive assessment on which other agencies of the state and private persons do, and are entitled to, rely in performing their duties. I observe that the following aspects of social life at least are engaged:
(1) Home Office practice: the Home Office under a protocol will apply the age assessment of the local authority for immigration purposes, that include vulnerability to detention and removal, as well as the issue of an identity document that it is the duty of the Home Office to provide whether under the Refugee Convention or otherwise, that will be taken as evidence of identity by other people in the United Kingdom in the absence of rectification or change of circumstance."
(4) The assessment process
(1) An appropriate adult should accompany the child and should be present during the interview.
(2) A full and careful explanation should be given to the child of the nature of the assessment and its purpose and of the role of the assessing social worker. A careful check should be made to ensure that there is full understanding between the child and the interpreter and that the interpreter is skilled in both the language and dialect of the child and has experience of interpreting in the kind of situation created by the age assessment process.
(3) The interview should be conducted in a structured, fair, non-adverserial, non-stressful and informal manner and an informal but full note of the questions and answers should be taken by one of those present.
(4) The assessors should pay attention to the level of tiredness, trauma, bewilderment and anxiety of the child and his or her ethnicity, culture and customs should be a key focus throughout the assessment.
(5) The assessors must take a history from the child. All relevant factors should be taken into account including, but not limited to, physical appearance and behaviour. The objective is to undertake a holistic assessment.
(6) Each interview should, if practicable, be conducted by two assessors who should have received appropriate training and experience for conducting age assessment interviews on young and vulnerable children.
(7) The assessors should establish as much rapport as possible with the child (a process known as "joining"), should ask open-ended non-leading questions using, as appropriate, circular questioning methods. The assessors should be mindful of the child having been "coached" and that the child may have had to answer questions on relevant topics several times previously thereby unwittingly blurring the possible accuracy of the answers. Giving the child the benefit of the doubt should always be the standard practice.
(8) The assessors should give the child a fair and proper opportunity to answer any potentially adverse findings at a stage when an adverse decision is no more than provisional to so as to enable him or her to provide any appropriate explanation or additional facts which might counter or modify such findings.
(9) The conclusions reached by the assessors should be explained with reasons which, although they may be brief, should explain the basis of the assessment and any significant adverse credibility or factual finding.
(10) The reasons should be internally consistent and should not exhibit any obvious error or inadequate explanation for not accepting any apparently credible and consistent answers of the child.
(5) Challenging the local authority's assessment
(1) When a local authority or the UK Border Agency is required to exercise its statutory powers or duties in connection with a child in the educational, welfare, accommodation or immigration fields in circumstances where such powers or duties may only be exercised where the person in question is a child, that is someone under eighteen years old, the statutory body must first decide, as a separate and precedent matter, whether that person is a child by deciding what his or her date of birth and age is as a matter of fact.
(2) If that decision is challenged, the challenge must be brought by way of judicial review as part of a challenge to the statutory body for failing to undertake its statutory duties fully and correctly. The challenge as to the date of birth of the child must be determined separately and as a precedent fact.
(3) The factual challenge, although one of pure fact, must be determined as part of the judicial review. Indeed, it is possible to seek, by way of judicial review, a declaration of the date of birth of the child as the sole matter to be determined.
(4) The disputed age assessment is, unless shown to have been obtained in an unfair manner or following non-compliant procedures, the best evidence of the child's age which, unless challenged with reliable evidence, be accepted as determining the age of the child.
(5) The Administrative Court's decision must be reached on the balance of probabilities and will, in the case of disputed evidence, be decided following appropriate discovery and cross-examination. The assessment or assessments being challenged are evidence which should be taken into account with all other evidence and age assessments adduced at the hearing.
"9. There is an analogy between the court withdrawing a factual case or matter from the jury in defamation proceedings and the court refusing permission to bring judicial review proceedings upon a factual issue as to the claimant's age. We consider that at the permission stage in an age assessment case the court should ask whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. If so, permission should be refused. If not, permission should normally be granted, subject to other discretionary factors, such as delay. We decline to attach a quantitative adjective to the threshold which needs to be achieved here for permission to be given."
"Patently, as it seems to me, once the court is required to engage on determination of whether the person was on the relevant date a child, it must and should go on to make its own determination (binding as between the claimant and the local authority in point) as to actual age or date of birth. Further, that seems to me plainly to follow from the language of both Lady Hale and Lord Hope."
(6) The Administrative Court and the Upper Tribunal Immigration and Asylum Chamber
(7) Relevant procedure
"The conduct of the hearings
27. I turn, next, to a number of issues that have been raised as to the conduct of hearings. On behalf of the claimants it has been strongly submitted that if local authorities wish to rely upon the assessments already made by their social workers, then the social workers concerned must be available for cross-examination if required. On behalf of the local authorities it has been submitted that the assessments should, as it were, stand or fall within their own four corners and in written form, and that it is not appropriate to require social workers to attend. On that issue, I am firmly in agreement with counsel for the claimants. It is entirely a matter for local authorities how they wish to defend these cases, but if they wish to defend them by reliance upon assessments (which include matters of fact as well as opinion) of their social workers, then they simply must, in the ordinary way, produce those social workers for cross-examination if required. So as to reflect that, and the involvement generally of witnesses other than the claimant, I order, in all these cases, that "any witnesses must attend the final hearing if, not less than 4 weeks before the date fixed for final hearing, the other party gives written notice that the witness is required for cross-examination."
28. Next, there has been much lively debate about the role and involvement of the claimants themselves in these hearings. The point has been made that in every case the claimant claims to be a child, or at any rate until recently to have been a child. In every case, the claimant claims to have had a difficult and often tragic life history and in general terms to be a vulnerable person.
29. In all the cases it has been submitted on behalf of the claimants that special measures should accordingly be available for their participation at any hearing, for instance, that hearings should take place in chambers, or even that they should give any evidence even more informally and privately in a judge's private room. Additionally or alternatively, it has been submitted that video links should be made available for the giving of their evidence. More profoundly, Mr Christopher Buttler [counsel for F] in particular, on behalf of his two clients submitted that the claimants simply should not be involved in the forensic process at all, unless at any rate they positively wish to be.
30. I have to say as a general observation that it does not seem to me that these fact- finding hearings can ordinarily take place without some involvement of the claimant and engagement of the claimant with the court. In most, if not all, cases there is some issue as to the credibility of the claimant and the account that he or she gives as to his or her earlier history. But I do accept that the extent to which, and manner in which, a claimant participates or gives evidence is quintessentially a matter for the judge at the hearing itself. Accordingly, in all these cases, I make a general direction in the following terms: "Conduct of the hearing: Any question whether the claimant shall give oral evidence or be cross-examined; and any question whether all or any part of the hearing will take place in chambers, or whether the judge will see the claimant in his private room, will be a matter for the sole discretion of the judge at the final hearing. If the claimant wishes to give by video link any evidence that he may be required to give, then his solicitors must so inform the court in good time and make necessary arrangements for the hearing to take place in a court room equipped with video link facilities and for reserving a video suite. The question whether the claimant actually gives evidence by video link will be decided by the judge at the final hearing."
31. Having thus made plain that all those matters are ultimately for the discretion of the judge at final hearing, it seems to me extremely important that ordinarily, at any rate, there should be a provision to ensure that the claimant is readily available if the judge considers that he should in some way give evidence. So in most of these cases I have also made an order as follows: "Without prejudice to his right to be in the courtroom throughout the hearing if he so wishes [which is axiomatic], the claimant must attend the vicinity of the court at the final hearing."
32. Mr Christopher Buttler, in particular, has strongly submitted that that is an order that I have no power to make, or if I do have such a power, that I should not make. I do not propose to engage in the detailed argument on that topic in this already over long judgment. At all events, I have accepted that there is something about the particular facts of the Lewisham case, in which the claimant claims to have been trafficked and very abusively treated, which may raise in acute form the question whether any involvement or questioning of the claimant at all would itself amount to a further abuse.
33. So in that particular case, I have been persuaded and have agreed (without opposition by Mr McGuire on behalf of Lewisham) to provide for a staged final hearing by a direction that: "The dates for the final hearing shall be fixed as follows: in each case before the same judge: (i) for one day in one week for consideration of [the above matters and issues as to the conduct of the hearing] and in particular whether the claimant personally must attend to give oral evidence or otherwise be seen by the judge; and (ii) for two days in the following week (with not less than five days intervening between the two dates fixed under (i) and (ii))." The purpose of that is so that the judge indentified for the final hearing itself can hear the fact specific submissions and make a ruling about whether or not the attendance of the claimant is required, and there will then be a reasonable and orderly period to prepare the claimant for attendance."
(8) Expert evidence
(9) Dr Birch's expert evidence
(1) Dr Birch undertook a series of psychometric tests and psycho-social development assessments and also a series of physical measurements on each child. Each test, assessment or measurement produced a separate "parameter". An average age calculation, separately weighted for each parameter was undertaken for each such parameter, each average age was weighted and an overall age calculation was then obtained by obtaining an overall average age. The resulting average age figure was taken to be the age of the child whose age she was assessing.
(2) Dr Stern considered that most of the clinically and psychologically derived estimations of age were in reality measurements of maturity with an unknown and, in many cases, unknowable timeframe of individual development. The tests themselves needed to be, but had not been, validated in a blinded manner on populations of known age. Dr Stern also had a series of criticisms of the individual parameter measurements relating to the various methodologies and statistical methods used to obtain an age for each parameter.
(3) Overall, the evidence of Dr Birch was rejected because of its considerable reliance on statistical methods that were shown to be based on serious errors and, hence, unreliable. It was concluded that, in each of the individual cases considered by Collins J and Kenneth Parker J, Dr Birch had had an erroneous confidence in the accuracy and reliability of her statistical methods which fatally undermined her age assessment evidence in those cases.
D. These proceedings
(1) Procedural History
(2) Expert evidence in this case
(1) The defendant's expert evidence: The first assessment report dated 9 June 2009 was brief and was undertaken by two social workers, Ms Okonkwer and Mr James. This report concluded that the claimant's date of birth was 18 March 1994, making the claimant some two years older than his claimed date of birth of 18 March 1996. The second assessment report, dated 16 November 2009, was undertaken by two different social workers, Ms Henry and Ms Betiku. This also concluded that the claimant's date of birth was 18 March 1994.
(2) The claimant then served an assessment report from Dr Birch which was based on an assessment undertaken on 17 March 2010. Dr Birch concluded that the claimant's date of birth was 15 years 2 months, giving him a date of birth of about January 1995.
(3) The defendant then served an addendum report dated 28 October 2010 prepared by Ms Gordon, the defendant's Team Leader of Unaccompanied Minors. This assessment was undertaken by a social worker who had not personally assessed the claimant and was, in effect, her personal commentary on the report of Dr Birch. Her opinion was that the two earlier assessment reports had correctly assessed the claimant's date of birth as being 18 March 1994.
(4) The claimant then served a second assessment report from Mr Ambat and Ms Palmer based on an assessment undertaken on 17 December 2010. This report assessed the claimant's date of birth as being 18 March 1995.
(5) Finally, the claimant served a second assessment report from Dr Birch based on a review assessment undertaken on 2 March 2011. This report considered that the claimant's date of birth was about 16 years old which would give his date of birth as being approximately March 1995.
(3) The terms of the proposed settlement
(4) The need for court approval
(5) Reasons for approval of proposed settlement
"3. Upon further consideration, the parties agree with the conclusion of the independent social workers (Ken Ambat and Rose Palmer), which is set out in their report dated 8 January 2011, that the claimant's estimated age (at the time of assessment) was 15 (now16). Their conclusion is based inter alia on reasoning that:
a. Primary school generally starts at the age of 7 in Afghanistan. The claimant attended primary school for four years, left Afghanistan three years after finishing school and took two months to travel to this country. Given that he arrived in this country in 2009, the above matters would, in all reasonable likelihood, indicate that he was born in 1995.
b. That is consistent with the likely reason for his mother sending him to Europe, namely the onset of puberty giving rise to a threat from the Taliban under the Layeha honour code.
c. That is consistent with the claimant's account that he first fasted for Ramadan in September 2008, the trigger to fasting being linked to the onset of puberty.
d. That is not inconsistent with his physical appearance and level of independence.
4. The claimant was told by his mother that he was born on 18 March 1996. The parties agree that the year is more likely to be 1995 (for the reasons set out in paragraph 3) but have no reason to question the date.
(1) The alleged errors in the two local authority assessments were likely to be proved and these errors showed that the assessments were not Merton compliant since the errors were serious both individually and taken in the round. The third local authority assessment report was not based on a separate assessment and it amounted to no more than a series of assertions and subjective beliefs to the effect that the first two assessment reports were correct and Dr Birch's first assessment was incorrect.
(2) Of the many apparent ways in which the assessments had been undertaken in a Merton non-compliant manner, the following stood out:
(i) The assessment interviews were not conducted with an appropriate adult present and the claimant was unaccompanied during the interviews;
(ii) No full explanation of the purpose of each interview was provided to the claimant and no check was apparently made to establish that he fully understood each question that was asked;
(iii) Inadequate notes were taken of the interviews and the necessary safeguards relating to the minimisation of the claimant's levels of tiredness, bewilderment and anxiety were not observed;
(iv) The assessors did not appear to join with the claimant or ask open-ended, non leading, circular questions[17];
(v) No, or insufficient reasons were given for disbelieving the claimant's core answers relating to his history;
(vi) The reasons that were given were internally inconsistent.
(3) Dr Birch's report did not appear to suffer from any of the statistical defects of her reports in A and R, were assessments that were made by an expert of renowned authority and experience in the field of the age assessment of children and reached a conclusion almost identical to that of Mr Ambat and Mr Palmer.
(4) The assessment of Mr Ambat and Mr Palmer appeared to have complied faithfully with the established guidelines, was well reasoned and was undertaken of two assessors with the necessary expertise and experience.
(5) The assessed age arrived at independently of each other of Dr Birch on the one hand and Mr Ambat and Mr Palmer on the other were almost identical and all three reports of these experts appeared to be reliable, Merton compliant and well-reasoned.
(6) The defendant's assessments were sufficiently flawed that they should not be relied on at all or only to a very limited extent. The expert evidence that remained comprised the two reports of Dr Birch and the one joint report of Mr Ambat and Mr Palmer. Their respective conclusions coincided even thought they had been independently arrived at.
(7) In consequence, the claimant's assessed age, as reflected in these three reliable assessments, should be adopted and approved by the Court.
E. Declaration and judgment "in rem" or "in personam"
(1) Introduction
(1) The defendant's decisions as to the claimant's age should be quashed;
(2) It should be declared that the claimant was born on 18 March 1995 and that he was, both at the date of the issue of the proceedings and at the date of the announcement of the judgment in open court a child, namely a person who had not attained his eighteenth birthday, as defined by the CA.
"(a) the nature in respect of which relief may be granted by mandatory, prohibiting and quashing orders;
(b) the nature of the persons and bodies against whom relief may be granted by such orders; and
(c) all the circumstances of the case,
It would be just and convenient for the declaration to be made …."
(2) Declaration
F. Should the declaration state that the declaration is "in rem"?
(1) When is a judgment "in rem"?
"A judgment in rem is an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for the purpose. Such an adjudication being a solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is as declared, it precludes all persons from saying that the status of a thing or person adjudicated upon was not such as declared by the adjudication...".[18]
"The other point on which I want to say a few words is the question of what is a judgment in rem. All are agreed that a judgment of divorce is a judgment in rem, … neither marriage nor the status of marriage is, in the strict sense of the word, a "res", as that word is used when we speak of a judgment in rem. A res is a tangible thing within the jurisdiction of the Court such as a ship or other chattel. A metaphysical idea, which is what the status of marriage is, is not strictly a res but it, to borrow a phrase, savours of a res and has all along been treated as such. Now the learned judges make this distinction. They say that in an action of divorce you have to do with a res, to wit, the status of marriage, but that in an action of nullity there is no status of marriage to be dealt with, and therefore no res. No it seems to me that celibacy is just as much a status as marriage. I notice that in the Oxford dictionary the word "status" is defined (inter alia) as "The legal standing or position of a person … condition in respec , e.g., of liberty or servitude, marriage or celibacy, infancy or majority."
Another example of status is that of being an illegal immigrant, see Khera v Secretary of State for the Home Department[23]. In that case, involving a determination by the court of a jurisdictional fact that the claimant was an illegal immigrant, Lord Bridge stated:
"A person seeking leave to enter requires a decision in his favour which the immigration officer alone is empowered to give. The established resident who entered with express permission enjoys an existing status which, so far as the express language of the statute goes, the immigration officer has no power whatsoever to deprive him."[24]
(2) The necessary ingredients of a judgment in rem
"38. Where a judgment of a court of competent jurisdiction is made on a particular cause of action, to promote finality and prevent wasteful duplication, the law provides that, in any future proceedings, that judgment is conclusive in relation to that cause of action. The law prevents re-litigation of that cause of action by imposing an estoppel, which "merely means that a party is not allowed in certain circumstances to prove in litigation facts and matters which, if proved, would assist him as [a party] in an action" (Thoday v Thoday [1964] P 181 at page 187, per Diplock J). This doctrine applies to tribunals as well as courts (see, e.g., Munir v Jang Publications Ltd [1989] ICR 1 at [16]). It also extends, not just to whole causes of action ("cause of action estoppel"), but to any decision on an issue forming a necessary ingredient in that cause of action ("issue estoppel"); although issue estoppel may give way where there is further relevant material in relation to that issue is available (Phipson, paragraph 43-15). "Cause of action estoppels" and "issue estoppels" are collectively sometimes referred to as "estoppels per rem judicatam" or "estoppels by judgment", recognising that they derive from the judgment of a court or tribunal. However, marking the well-recognised difference between a judgment and the facts upon which a judgment is based, the doctrine does not apply to mere incidental findings of fact made en route to that judgment.
39. Generally judgments to which this doctrine applies are in personam, i.e. they only affect and bind those privy to the original proceedings. Indeed, subject to exceptions not relevant to this claim, a judgment in personam is not even evidence of the truth of either the determination or any findings leading to that determination for or against strangers to the original proceedings (The Duchess of Kingston's Case (1776) 2 Sm LC 13th Edition 644; and Hollington v F Hewthorn & Co Ltd [1943] KB 587).
40. However, just as a statute conferring jurisdiction may exclude estoppels by judgment (see examples cited in Phipson, paragraph 43-24), in certain circumstances, jurisdiction is granted to a court or tribunal to enable it to make a judgment that is binding, not only on the parties to the proceedings, but the whole world, i.e. a judgment in rem. As, Phipson indicates (in paragraph 43-10) estoppels to which judgments in personam and judgments in rem give rise are similar in kind. In respect of a judgment in rem, they provide conclusive evidence of the matters determined, for or against all persons.
41. Other than the High Court (which has inherent powers, specifically retained by the section 19(2) of the Senior Courts Act 1981), every court and tribunal is dependent upon Parliament for its powers, including its jurisdiction to make judgments in rem. For obvious reasons, the grant of such jurisdiction is rare: it is a potentially severe jurisdiction, binding everyone without those who might be interested in the issue necessarily being given notice or an opportunity to be heard. Other than in exceptional cases, it would have the clear hallmark of injustice. However, there are exceptional cases in respect of which Parliament recognises that certainty of the status of a person or property overrides the natural repugnance of the law to considering rights and obligations without giving all those affected the chance to be heard. In those cases, it may grant a court or tribunal jurisdiction specifically to make determination of, and effectively declare, that status against all persons in all future proceedings.
42. Given the overriding nature of judgments in rem, the circumstances in which a court or tribunal is given such a power or jurisdiction are understandably rare, and usually granted in the clearest of terms. For example, by Part 3 of the Family Law Act 1986 specified courts are given clear specific jurisdiction to make declarations in relation to marriage, divorce, parentage, legitimacy, legitimation and adoption; but even that is reinforced, in section 58(2), by an express provision that any declaration made under that part is "binding on Her Majesty and all other persons.
51. As I have already suggested, the distinction drawn in the Wakefield case and recognised ever since - between cases in which the court or tribunal has jurisdiction to adjudicate upon a matter such that its determination will bind the world, and those where it has jurisdiction only to make incidental findings en route to a determination that will bind just the parties - has sound foundations. Claims before the courts generally involve the rights and obligations of those - and only those - privy to the proceedings. It is usually contrary to the interests of justice to determine rights and obligations of those who are not parties, and who may not have been given any notice or opportunity to make submission on the issue. It is for that reason that Parliament is only likely to have granted jurisdiction to a court or tribunal to make judgments in rem rarely, and in clear and unequivocal terms.
52. Ms Stout's [counsel for the local authority] submissions were based on the premise that any finding by a court or tribunal on any matter that would fall into the broad category of "status", including age, is binding on the world at large. As can be seen from the above analysis, that premise is false. A judgment is only in rem if it is made by a court or tribunal with the jurisdiction to determine proceedings where the function of those proceedings is to determine status or rights as against the world. Findings, even as to matters such as age, which are merely incidental to a determination that the court or tribunal is required to make in personam are not binding on the world at large."
(1) The relevant determination, in this case the determination that the claimant is a child whose date of birth is 18 March 1995, must be one which gives rise to a decision and is not merely an incidental finding en route to a determination[30]. In other words, the determination must be in the form of a judgment and is not simply a finding of facts upon which a judgment is based;[31]
(2) The relevant determination must be one that the tribunal had jurisdiction to make[32];
(3) The relevant statute must, expressly or by necessary implication, confer on that tribunal the jurisdiction to make a determination in rem[33]. An indication that a statute confers that jurisdiction is that the statute confers on the tribunal exclusive jurisdiction to make a final determination and that that determination is as to the status of the claimant[34];
(4) The judgment must be final, on the merits and not by consent[35]; and
(5) There must be a public interest in the judgment being one which binds everyone rather than only binding the parties to the case in question[36].
(4) Discussion
(6) Conclusion – Declaration in rem
F. Costs
G. Summary of judgment
(1) The Court, having independently considered and approved the terms of the proposed declaration, should adopt the parties' proposed basis for concluding this age assessment case.
(2) The court should quash the defendant's age assessments since they were non-compliant with the Merton guidelines and should grant a declaration of the claimant's date of birth in reliance on the age assessments provided by Dr Birch and the joint assessment provided by Mr Ambat and Ms Palmer.
(3) The declaration, being as to the claimant's date of birth and his status as a child, and also being one of jurisdictional fact under the Children Act 1989, is a declaration in rem and should be declared to be such.
Note 1 Macdonald’s Immigration Law & Practice, 8th Edition (2011), paragraph [13.99]. [Back] Note 2 Kent County Council, Manchester City Council and Hertfordshire County Council are three whose age assessments have been challenged in Administrative Court judicial review proceedings reported on BAILLI. [Back] Note 3 See further paragraph 14 below. [Back] Note 4 [2009] EWHC 2357 (Admin). [Back] Note 5 [2003] EWHC 1689 (Admin). [Back] Note 6 [2011] EWCA Civ 59, CA. [Back] Note 7 [2011] EWCA Civ 59, CA at paragraph 9. [Back] Note 8 Ibid. at paragraphs 33 (Lady Hale) and 54 (Lord Hope).
8 [2009] EWHC 3542 (Admin) at paragraphs 9 – 10.
[Back] Note 10 Inserted by section 19 of the Tribunals, Courts and Enforcement Act 2007. [Back] Note 11 0 SI 2010 No 2655. [Back] Note 12 See FZ v London Borough of Croydon [2011] EWCA Civ 59 at paragraph 31 where the relevant practice is set out by the Court of Appeal. The judgment pointed out that, a transfer (“cannot at present be made” – i.e. as at the date of the judgment of 1 February 2011) if the claim called into question a decision made under the Immigration Acts or the British Nationality Act 1981 (paragraph 32). [Back] Note 13 [2009] EWHC 3542 (Admin). [Back] Note 14 [2009] EWHC 939 (Admin), Collins J. [Back] Note 15 [2011] EWHC 1473 (Admin), Kenneth Parker J. [Back] Note 17 See paragraph 19(7) above. [Back] Note 18 See Jowitt’s Dictionary of English Law (3rd Edition, 2010) cited with approval in the opinion of Lord Mance in Pattni v Ali [2006] UKPC 51; [2007] 2 W.L.R. 102 at paragraph 21. [Back] Note 19 Other types of case in which such judgments may be pronounced include a judgment that determines ownership or other interest in real property, the sale of property in satisfaction of a claim against that property and a judgment by way of administration in bankruptcy or on death (see e.g. Dicey, Morris & Collins, The Conflict of Laws, 14th edition, 2006). [Back] Note 20 Wakefield Corporation v Cooke [1904] AC 31, HL. [Back] Note 21 Callaghan v Andrew-Hanson, [1992] 1 All ER, Fam D, Sir Stephen Brown P at page 56 at 63f:
“the unimpeachable character of a decree absolute”. [Back] Note 22 [1927] AC 641, HL at 663. [Back] Note 23 [1984] 1 AC 74, HL. [Back] Note 24 Ibid., at page 122D – E. [Back] Note 25 Per Lord Robertson at page 38. [Back] Note 26 (1881) 6 QBD 300. [Back] Note 27 [2010] EWHC 2056 (Admn). [Back] Note 28 [2008] EWCA Civ 1445, CA at paragraph 88. [Back] Note 29 [2009] EWHC 2357 (Admin), Blake J at paragraph 43. [Back] Note 30 Wakefield Corporation v Cooke, ibid. at page 38 per Lord Robertson; PM, ibid. at paragraph 51. [Back] Note 31 PM, ibid, at paragraph 45. [Back] Note 32 PM, ibid. at paragraphs 58 and 61. [Back] Note 33 Pattni, ibid. at paragraph 22. [Back] Note 34 Wakefield Corporation v Cooke, ibid. at page 36; Salvesen, ibid. at page 663; A, ibid. at paragraphs 14 – 19. See also Phipson on Evidence, 17th edition, 2010 at paragraph 43-11. [Back]