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IN THE HIGH COURT OF JUSTICE
||Royal Courts of Justice
||12th July 2013
B e f o r e :
MRS. JUSTICE THEIS
||- and -
Transcribed by BEVERLEY F. NUNNERY & CO
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MR. J. CHURCH (instructed by the Local Authority) appeared on behalf of the Applicant.
MS. D. FOTTRELL (instructed by Creighton & Partners) appeared on behalf of the Children?s Guardian.
HTML VERSION OF JUDGMENT
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MRS. JUSTICE THEIS:
- This matter is listed before me on the application of the Local Authority (LA) for a declaration and a care order in relation to a young girl called DN, whose date of birth has been given in these proceedings as [a date in] 2001. The LA seeks a declaration that, in fact, her date of birth is [a date in] 1999. They are supported in their applications by Ms Smith, DN's Children's Guardian.
- The background and context of this application are set out in two previous judgments that I have dealt with in this matter; firstly the judgment dated 28 November 2012 as  EWHC 4278 (Fam) where I determined that this court had jurisdiction to deal with the applications relating to DN, together with the three younger children who she has shared a household with. Secondly, the judgment dated 24 May 2013  EWHC1433 (Fam) where I set out my decisions relating to welfare and made directions for this hearing to be listed today.
- In summary, I made final care orders in relation to the three younger children together with placement orders in favour of the LA. I continued interim care orders in relation to DN as a result of the outstanding issue regarding her age and I made directions on that occasion so the court could consider that issue today. The harsh reality for DN is she has no family in this jurisdiction and efforts to trace her family in Cameroon have unfortunately been unsuccessful.
- I have before me today an updated statement from the allocated social worker Ms Green, who has been the allocated social worker for a number of months for this family. She had recently been superseded by Jacqueline Graham, who has become the new allocated social worker for DN. I also have an age assessment of DN from Ms Green, who is experienced in relation to assessing ages of children as she sets out in her assessment. She has nine years of post qualifying social work experience, which includes four years' experience of assessing ages for the London Borough of A and the London Borough of B. She has two further years' experience of working with unaccompanied asylum seeking children with the Immigration Advisory Service as a legal caseworker. In addition, I have a report from Ms Smith, who is an extremely experienced CAFCASS Guardian. She too has experience in relation to undertaking age assessments in her previous life as a LA social worker.
- In terms of jurisdiction, Ms. Fottrell has very helpfully set out in her skeleton argument, supported by Mr. Church in his skeleton argument, an analysis of to the legal position. The majority of cases that have dealt with age assessments have been within the context of judicial review proceedings, generally in the context of an issue as to whether an unaccompanied minor who has arrived in this jurisdiction and seeks assistance from the local authority is, or is not, eligible for that assistance as a result of their age. Generally, the context is that LA has made an age assessment which takes them out of the LA obligations to that individual under the Children Act. The issue therefore is whether that assessment is susceptible to any legal challenge.
- Stanley Burnton J in the case of R (on the application of B) v Merton Borough Council  3 FCR 69 concluded that such an assessment could be undertaken by a social worker and does not require a lengthy judicial hearing. He set out general guidance as to how such assessments should be undertaken, the central points are:
i. The decision maker must explain to an applicant the purpose of the interview
ii. the decision maker cannot determine age on appearance alone save in clear case
iii. the assessment must elicit information about the background, the family's circumstances and history, the education and the applicants activities in the years preceding their departure. If the age is doubted credibility may have to be assessed by the decision maker.
iv. If the decision maker considers the applicant is lying then the applicant must be allowed to address matters which have led to that view
v. Adequate reasons must be given for determining whether the applicant is a child
vi. Cases vary and the level of inquiry in one case may not be necessary in another.
- In the Administrative Court cases the position is clear; such assessments can be and should be undertaken by social workers. In this case I have two social work assessments, both undertaken by social workers experienced in undertaking such assessments.
- Turning to the occasions when the Family Division has considered making such declarations. There have been two previous cases that have considered this issue. Firstly, in E v London Borough of X  EWHC 2811 the then President, Sir Mark Potter, made a declaration as to age within wardship proceedings. The issue in that case was whether the child who was the subject matter of wardship proceedings was 16 years or 19 years. He made a declaration as to the child's age, which had consequences as to whether a court had jurisdiction within wardship.
- The second case is Lambeth Borough Council v TK  1 FCR 285 a decision of Wilson J (as he then was) when he determined that the court could, when seised of a matter under s 37 Children Act 1989, exercise its discretion to resolve a dispute as to a child's age.
- Whilst these cases were primarily concerned with the issue of whether or not a person was a child, it is submitted that does not preclude the court from exercising its discretion as to issues of welfare from making a declaratory finding. In this case there is no issue, on either scenario regarding DN's age, that the court would have jurisdiction to make a care order. This is not a case where the declaration would be determinative as to whether the court has jurisdiction or not, but it is submitted that DN's welfare demands that a declaration is made, in particular the welfare issue concerning her identity. I agree. It is clearly a relevant consideration not only from the welfare checklist, one of the factors set out in section 1(3) is the child's age, but it goes wider than that. In exercising its welfare jurisdiction (even in relation to a child who is on either scenario within the relevant provisions in the Children Act) it is important that the court should determine whether it is dealing with a child who is 13
years and nine months or 11 years and nine months. This is particularly so when considering the care plan and provision being proposed in relation to that child.
- I am entirely satisfied that this court does have jurisdiction to make such a declaration.
- Turning to the factual basis of the application. That is set out in both Ms Green's report and statement and Ms Smith's report. It is quite clear that there are a number of aspects of this case that indicate that DN is 13 years of age and not 11 years of age.
- In relation to the physical position, both Ms Green and Ms Smith, supported by the foster carer and the school, are very clear on the evidence that DN's physical appearance is significantly older than the age it has been said that she was. She has the body shape and development of an adolescent. She is taller and more mature physically than other children her age.
- In relation to her emotional, behavioural and social position, she has made it clear that she is older than has been said by the respondents in the care application. She has wanted to move school and found playing with younger children more difficult.
- In terms of her cognitive understanding, again it is reported that her general knowledge, her general understanding and her levels of reasoning are more developed and more consistent with a 13-year-old child than in an 11-year-old child. That is reported by both Ms Green and Ms Smith's assessments.
- In terms of the self-reporting DN has repeatedly said she is two years older. For example, in the core assessment undertaken in December 2012, in her discussions with Ms Green and Ms Smith and to the school. She has maintained that position consistently over that period of time, reporting that the Second Respondent in the care proceedings, who brought her to this country from Cameroon, changed her date of birth as she could not speak English and he wanted her to have a few more years at school.
- I described at paragraph 44 of my judgment dated 24 May 2013 the information that DN gave Ms Green in March 2013:
She describes in her statement information given to her by DN in March 2013 regarding her background. She gave a different surname, a different date of birth and gave details of two brothers. She described her school in Cameroon. The statement records DN stating that her identity information was forged in order for her to gain entry to the UK, she was given a different date of birth by the father as she did not speak English and this would help her gain additional education. DN says she was told to call the parents 'dad' and 'mum'. Following this information the LA has instructed a private investigator to make enquiries in Cameroon regarding DN. Unfortunately that has, to date, not revealed any tangible information. Ms Green acknowledged from DN`s perspective clarity regarding her age was needed, sooner rather than later as she is due to leave primary school this summer. If she was born in 1999 rather than 2001 that has implications for the arrangements for her secondary school education, which need to be planned in advance of the start of the next academic year.
- That position has been maintained by DN. Ms Smith in her oral evidence in May and in her report repeated that is what DN had told her. She reports DN being frustrated at having to live a lie.
- The need to make a declaration on welfare grounds is clear. Up until June this year DN has been in primary school. Arrangements were made in June for DN to move to her secondary school where she is now. She is going to go back to her primary school for a couple of social events before the end of term. She is going to do her year eight exams at the end of this academic term. The effect of it is that she will be starting year nine in September 2013. She is going to have to cope with missing the first two years of secondary school. Her welfare needs clearly demand that as much certainty as possible should be given in relation to her age prior to her starting the next academic year.
- Taking all those matters into account, I am entirely satisfied on the information that I have that in fact DN is older than she had been told to be by the Second Respondent in the care proceedings and that, on the balance of probabilities, it is more likely than not that her date of birth is 20 October 1999, so she is 13 years and nine months. That is the declaration I will make.
- There is no issue that her welfare needs, as set out in section 1 Children Act 1989, require a care order to be made. Only that order will give her the stability and security she clearly requires and enable decisions to be made for her, when required.
- In terms of the care plan I have been asked to approve, I have considered its terms carefully. There is no issue between the parties about that care plan being approved, although there are a number of matters that should be added in. It is agreed that the local authority is going to instruct independent solicitors to establish the immigration position and make any necessary applications. In addition, the local authority will pursue a CICB claim on behalf of DN. Those two matters will be in the recital to the order made today and also put in the amended care plan.
- Both of those matters are important for DN. She has had to live a lie for a number of years for reasons that were beyond her control. She now has clarity in relation to her situation, which will serve her well in the future and the two additions are also important for the security and stability that she clearly needs.
- The only other observation I would make in relation to the care plan is that the local authority remains concerned about the cultural appropriateness of DN's placement. Obviously, that is an important consideration for the local authority to review and consider. However, on the information that I have, having been in this case for some time now, I would urge caution in relation to that. If DN is settled where she is, if she has the benefit of contact with the younger three children and there is communication between the respective foster carers, the benefit of stability of placement, bearing in mind all the turmoil that has been going on in her life, particularly in relation to her education, may be of enormous benefit to her.
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