RSS Feed

Tag Archives: asylum seeker

Angola – gross, inexplicable and unjustifiable delay


This is a judgment by a circuit Judge, His Honour Judge Wood, sitting in Newcastle. It is not binding precedent, but I think that it illuminates some important issues.


The mother in the case was Angolan, born in 1977. The eldest child had been born and raised in her early life in a refugee camp in Angola. The family came to England in 2005. It was sadly and brutally apparent that this mother had seen and experienced things that you would wish on no human being, and that obviously as a result, she had severe and serious need of help that she did not receive.



Re N (Children) 2015

  1. I have found this case simultaneously to be very difficult, very sad and also to have made me very angry. In reverse order, the anger flows from the failure of this Local Authority to meet these children’s needs in a significant way. First, the gross, inexplicable and unjustifiable delay, the breach of statutory duty under section 1(3). Secondly, this is a family with, if not a unique background, a relatively unusual and extraordinarily difficult one, which until Mrs Louw reported does not seem to the court to have been really considered at all and even following her report I question the extent to which it was properly embraced. The search for suitable cultural support has come really very late indeed.
  2. Thirdly, the likelihood of the parenting course that the mother was sent on barely scratching the surface was evident before the mother even went on it. I do not say that she learned nothing from it, she was able to explain what she had learned and spoke to me in quite complimentary terms about it, but the real difficulty identified by Mrs Louw was completely beyond its scope. Fourthly, the delay in obtaining the evidence from Mrs Louw was caused entirely by the Local Authority not identifying that need until these proceedings were issued. It was ordered at the earliest point at the case management hearing but by then 17 months had elapsed since the children went into care.
  3. Fifthly, the Local Authority knows about this mother’s isolation. It is apparent on all of the evidence. She belongs to a church but does not mix with other families, at school or elsewhere. She has, on her account, maybe one or two visitors from her church to her home but she does not visit the homes of her visitors and she has no other family or friends, certainly locally. As an asylum seeker from a war-torn country but with children brought up in a western educational system, the potential for cultural issues and expectations to give rise to conflict ought to have been obvious. I do not underestimate the difficulty of finding appropriate help. Even at the end of this hearing it is not clear what does exist but no real attempt was made even to mount a search until much too late. To criticise the mother for not having learnt from five group sessions of an effective parenting course is really just not fair.
  4. Sixthly, the background of being a refugee, particularly from Angola, even with an elementary knowledge of recent Angolan history and absent that an enquiry just on the internet, should have alerted the Local Authority to the likelihood that this mother had experienced real trauma likely to be of a severe kind which should have set alarm bells ringing as to her likely needs. On all of these scores the President’s textbook example of how not to conduct a care case seems to the court to have been met.


The Judge was rightly scathing about the delay between the Local Authority taking these children into care and issuing proceedings, some 17 months. With all of the features of this case, it should have been apparent that section 20 would not be sufficient and that proper plans for the long-term future of these children was needed.  Even worse than the delay was that the Local Authority took SEVEN MONTHS to issue the proceedings from the date that they wrote to mother’s solicitors saying that they were going to issue.  As the Judge points out – if the LA had issued when they said they were going to, the proceedings would have been concluded a month earlier than when they were actually issued.

[Even worse than this, the children had been taken into Police Protection a year before the section 20 accommodation, as a result of a physical assault, and then returned home, so the LA were seized of the issues and concerns for some 29 MONTHS before care proceedings were issued]


5. I want to say at the outset that the course that this case has taken in the hands of this Local Authority has been deeply unsatisfactory. Following a precipitating event in the middle of June 2013 the children were accommodated with the mother’s consent under section 20 of the Children Act 1989. Despite taking a decision in January 2014 that the plan was to be long term foster care and the Local Authority writing to the mother’s solicitor in March of that year to the effect that proceedings would be issued within seven days, they were not issued for another seven months on 22nd October 2014. As I observed when Miss Woolrich on behalf of the Local Authority addressed me, had the proceedings been issued when the Local Authority said that they were going to issue, they should have been concluded before the date when they were, in fact, issued. That they were not is bad enough but that bald fact ignores the period of nine months that preceded that statement of intent. Thus, these children were voluntarily accommodated for 16 months prior to the issue of proceedings and can properly be said today to have been in limbo now for 21 months.

  1. It is difficult to avoid a direct application of the words of Sir James Munby P in the recent Darlington Borough Council case reported at [2015] EWFC 11 in which he described that case as being, “Almost a textbook example of how not to embark upon and pursue a care case.” A specific criticism from that case that applies directly in this case is, “The misuse and abuse of section 20”, that the President said could no longer be tolerated endorsing, as he did, the observations of the Court of Appeal in Re W [2014] EWCA Civ 1065 and Northampton County Council v AS [2015] EWHC 199 quoting with approval the remarks of Keehan J recorded at paragraphs 36 and 37 of that latter judgment.
  2. This all lies entirely at the door of the Local Authority and requires addressing at the highest levels within Children’s Services and their legal advisors. That said, no parent in such circumstances is left without a remedy. Legal advice is available from the outset of notification of proceedings and it is a matter of both surprise and disappointment that the mother here was not encouraged to force the point as she was perfectly entitled, and I would say bound, to do in the circumstances of such gross delay by withdrawing her consent. I want to emphasise I do not blame this mother personally but it is the fact and a matter of regret that this did not happen long before the Local Authority belatedly got round to issuing proceedings. The effect of delay varies from case to case but in no sense could it here have been described, using the now disapproved term, as being purposeful. It served no identifiable purpose, it has delayed the outcome inordinately for young children wanting their futures decided and, as a matter of law, it has amounted to a complete and inexcusable breach of the statutory delay principle enshrined in section 1(2) of the Act.


The Judge sadly had to make Care Orders – one will never know whether if during those 17 months of drift the mother had been given the right help whether the outcome would have been different.

He decided that these failings were not solely those of the social worker but of the organisation and system as a whole, so followed the President’s decision in Darlington not to name and shame the individual workers

 I make a disclosure order to the head of service and to the independent reviewing officer in respect of this judgment which will be transcribed as anonymised, the cost of which to be shared equally by all parties. I should say that for the avoidance of doubt for the reasons that the President gave in the Darlington case itself, I have also directed that the two social workers who have been involved should be anonymised as well because it seems to me entirely unfair that, whatever individual shortcomings may have arisen, the criticisms that have been levelled against the Local Authority should be laid at their door or that they should be identified as responsible.


It also seems to me that with all of the demonisation of asylum seekers that goes on in both political discourse and the media reporting, it is worth reading this little passage and remembering that asylum seeker ought not to be used a synonym for ‘sponger’

The mother was born on 23rd October 1977 in Angola. By then the brutal civil war that shocked the outside world had been underway for two years. G was born in a refugee camp in Zambia in 2002 just after that war ended. The psychologist who reported in this case makes the point that the mother grew up and came to maturity in a war-torn country. The central province where she lived is said to have been devastated. The mother herself reports that there came a day in 1999 or 2000 when they “all ran different ways” and she thereby lost contact both with her parents and her sister. She has no idea where they might be – that is to say, assuming they are still alive – and somehow she ended up following a convoy of complete strangers that took her to Zambia. Little more than that is known, albeit the expert assessment of her presentation was consistent with her affirmative nod in answer to a direct question as to whether she had been jailed and/or tortured. She is likely to have experienced first hand, or at least witnessed, extreme brutality that has traumatised her to this day.



“Fridges and unseemly turf wars”


 The Supreme Court has handed down its judgment in the adult care case, SL v Westminster 2013 which related to whether a Local Authority owed a duty under section 21 of the National Assistance Act 1948 to provide a man who was a failed asylum seeker with accommodation.


As the Supreme Court themselves observed, up until the mid to late 90s, there was no suggestion that providing accommodation to failed asylum seekers was going to be the job of Local Authority social services departments, or that it would fall under section 21 of the National Assistance Act 1948 which is really intended to protect people who have health or other vulnerabilities, but that as the Government squeezed immigrants and asylum seekers in other pieces of legislation, those representing them began to turn their attention elsewhere, and section 21 came to be seen as a refuge of last resort to get accommodation for people for whom all other avenues had been cut off.


There followed what one commentator called an “unseemly turf war” (Slough, para 28) over responsibility for homeless asylum-seekers as between, on the one hand, local authorities under section 21(1)(a) of the 1948 Act and, on the other, central government under the new national scheme.


Parliament tried to engineer a resolution of this turf war by changing legislation, so that section 21 was amended


Section 21 of the 1948 Act (as amended in particular by the Immigration and Asylum Act 1999) provides:

“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing:

(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and

 (aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.

(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely –

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute…


(Sub-section (1B) provides that “destitute” for these purposes is defined in accordance with section 95 of the 1999 Act.)



And thus, in order to trigger the Local Authority duty to provide accommodation under section 21 of the National Assistance Act 1948, the person must show that they have needs for accommodation that arise OVER and ABOVE just not having accommodation and being destitute, or that their health will deteriorate as a result of not having accommodation and being destitute.


[One could of course argue, that failed asylum seeker or not, the State should either provide the person with accommodation or take steps to remove the person from the country, rather than effectively stepping over the destitute person in the street, much like Phil Collins in the Another Day in Paradise video….]


The Council in this case were informed of SL’s circumstances – he had fled from Iran fearing persecution over his sexuality in 2006 and his asylum claim was refused in 2007. He attempted suicide in December 2009 and was diagnosed as suffering from depression and post traumatic stress disorder.

 The Council assessed him and considered that  SL needed support and services and that they could provide him with support and services but that he did not require the provision of accommodation as a result of his needs. 

The idea then, would be that it would be central government, rather than local government who needed to provide SL with accommodation. In reality, as know, that doesn’t happen.

 There is a considerable body of cases in which the person had some additional form of physical ailment or disability (for example having only one leg or in the NASS case, spinal cancer) and whether that triggered the s21 duty.



18. Lord Hoffmann summarised the effect of section 21(1A):

“The use [in section 21(1A) of the 1948 Act] of the word ‘solely’ makes it clear that only the able bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line.” (NASS, para 32)


The counter argument here, is that suddenly, failed asylum seekers were able to obtain s21 National Assistance Act accommodation if they were able to evidence some health problem or disability, even though that health problem or disability (were they NOT a failed asylum seeker) would NOT have triggered s 21 National Assistance Act accommodation


“Mr Pleming said that this case (Mani) demonstrated the absurd consequences of the decision of the Court of Appeal. If Mr Mani had been an ordinary resident, his disability would never have entitled him to accommodation under a statute intended to provide institutions for the old and retreats for the mentally handicapped. His entitlement as found by Wilson J arises simply from the fact that he is an asylum seeker. Such a conclusion is inconsistent with the policy of having a national support system specifically for asylum seekers. Furthermore, the decision undermines the policy of dispersal followed by NASS, which is intended to prevent asylum seekers from gravitating to London boroughs or other local authority areas of their choice. An asylum seeker who can produce a disability, physical or mental, which makes his need for care and attention ‘to any extent more acute’ than that which arises merely from his destitution, can play the system and secure accommodation from the local authority of his choice.” (para 48)



In the Slough case, the need for “care and attention” arose because the claimant was HIV positive and needed both various prescribed medications and a refridgerator to keep them in.


Lady Hale determined that this did not trigger a s21 need for accommodation


“I remain of the view which I expressed in R (Wahid) v Tower Hamlets London Borough Council [2002] LGR 545, para 22, that the natural and ordinary meaning of the words ‘care and attention’ in this context is ‘looking after’. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded…” (para 33)


When the Court of Appeal considered SL’s case, they determined that the assistance and support that the Council were providing did amount to “care and attention” and that thus the s21 criteria were triggered.

The Supreme Court very neatly summarised the submissions of the various parties on the difficulties and merits or otherwise of SL being a section 21 case


Confined to their essentials, the respective submissions can I hope be fairly summarised as follows. Mr Howell submitted that:

i) Monitoring (or assessing) an individual’s condition at a weekly meeting is not itself “care and attention” for this purpose. It is rather a means of ascertaining what “care and attention” or other services (if any) the individual may need in the future.

ii) Care and attention means more than monitoring, or doing something for a person which he cannot do for himself. As Dunn LJ said in the comparable statutory context of attendance allowance (R v National Insurance Commissioner ex p Secretary of State for Social Services

[1981] 1 WLR 1017 at 1023F) the word “attention” itself indicates –

“something involving care, consideration and vigilance for the person being attended… a service of a close and intimate nature.”

iii) On the second issue, the services provided by the council, other than accommodation, could be provided under other statutory provisions; they were therefore “otherwise available”, and thus excluded from consideration by section 21(8) of the 1948 Act.

iv) Alternatively, in line with the reservations expressed by Laws LJ (para 41), and contrary to the decision of the Court of Appeal in Mani, the court should hold that the section applies, not to all those who need care and attention, but only to those who have an “accommodation-related need”, that is those who need care and attention “of a kind which is only available to them through the provision of residential accommodation” (Mani, para 16).

v) In any event, as the judge found, there was no link between any need for accommodation and the services needed by SL, which were being

provided wholly independently of the place where SL was or might be living.

37. Mr Knafler submitted in summary that:

i) “Care and attention” or “looking after” included not only intimate personal care, but any other forms of personal care or practical assistance. It is enough, in Lady Hale’s words, that the council is “doing something” for the person being cared for “which he cannot or should not be expected to do for himself”. Monitoring SL’s mental state was indeed “doing something” for him, and was no different in principle from “watching over” as described by Mr Howell’s concession in Slough.

ii) “Care and attention” is not an “accommodation-related need”. Care and attention can be provided to persons in residential accommodation under section 21(1)(a), and also to persons in their own homes under section 29 or other enactments. Longstanding local authority practice is to provide care and attention in residential accommodation when it can no longer be provided reasonably practicably and efficaciously in a person’s home, or elsewhere, having regard to all the circumstances, including cost.

iii) “Not otherwise available” means, as Laws LJ held, not otherwise available in a reasonably practicable and efficacious way. In this case, SL needed care and attention because he needed accommodation, basic subsistence, personal care and practical assistance. That “package” was not available at all, otherwise than by the provision of residential accommodation. Alternatively, looking simply at the care he needed for his mental illness, and given that he was homeless and destitute, the necessary care was not available to him in any reasonably practicable and efficacious way, otherwise than by providing him with accommodation as a stable base.


The Supreme Court concluded this



44   . What is involved in providing “care and attention” must take some colour from its association with the duty to provide residential accommodation. Clearly, in light of the authorities already discussed, it cannot be confined to that species of care and attention that can only be delivered in residential accommodation of a specialised kind but the fact that accommodation must be provided for those who are deemed to need care and attention strongly indicates that something well beyond mere monitoring of an individual’s condition is required.



45. Turning to the second issue, and assuming for this purpose that Mr Wyman was meeting a need for “care and attention”, was it “available otherwise than by the provision of accommodation under section 21”? Although it is unnecessary for us to decide the point, or to consider the arguments in detail, it seems to me that the simple answer must be yes, as the judge held. The services provided by the council were in no sense accommodation-related. They were entirely independent of his actual accommodation, however provided, or his need for it. They could have been provided in the same place and in the same way, whether or not he had accommodation of any particular type, or at all.




48   . The need has to be for care and attention which is not available otherwise than through the provision of such accommodation. As any guidance given on this point in this judgment is strictly obiter, it would be unwise to elaborate, but the care and attention obviously has to be accommodation-related. This means that it has at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or will be effectively useless if the claimant has no home. So the actual result in Mani may well have been correct. The analysis may not be straightforward in every case. The matter is best left to the good judgement and common sense of the local authority and will not normally involve any issue of law requiring the intervention of the court.




I love the continued optimism of the higher courts (as underlined) , here as in cases of designated authority, ordinary residence, section 117 after care funding, mental capacity, whether a young person presenting as homeless is section 20 Children Act, whether the burden of proof increases with seriousness of the allegations, that now that they have given a judgment, that will be the end of all that nonsense, and nobody will ever quibble about the facts of a case and try to put something in one box or another – it will be plain and agreed in all cases exactly which side of the clear bright line the case falls. Nobody need ever argue about it again.


It is, in my mind, rather akin, to that unbridled optimism with which the UK Foreign office decided that the best solution to disputed territorial claims was partitioning, which worked so well in Cyprus, Palestine, Berlin, Northern Ireland, (Korea, though the Americans were to blame on that one), Kashmir….        [That list seems to cover most of the world’s trouble-spots and a cynical fool might suspect that there was some correlation there between a sticking-plaster solution and festering wounds later coming to life]




Do you think I was born yesterday?




A headlong rush through some of the key authorities on establishing whether a young person is young enough to receive services from a Local Authority

These cases chiefly involve unaccompanied asylum seekers, because they are a debate about whether the young person in question is under eighteen at the time they present to a Local Authority requesting either support under section 17 of the Children Act or accommodation under section 20 of the Act, AND there being a dispute about whether the young person is under 18 or over 18  – UK or European nationals tend to have documentation which will establish that age beyond doubt, whereas it is common practice for unaccompanied asylum-seekers to either not have such documentation, or to have destroyed it (in order to make it harder to establish where they should be sent back to)

Sadly for anyone trying to remember these cases, nearly all of the case names involve Croydon   (alternatively, if one is trying to bluff their way through a conversation about age-assessment cases, saying “of course, the Croydon case deals with this point” is a sensible tactic)

Our starting point is with R (on the application of B) v MERTON LONDON BOROUGH COUNCIL (2003)

[2003] EWHC 1689 (Admin)

QBD (Admin) (Stanley Burnton J) 14/07/2003

Which creates for us the eponymous “Merton” assessment,  and the Court indicating that there had to be a solid evidence-based and documented assessment by the Local Authority of how they had calculated the age of the young person, and what factors they had taken into account

HELD: (1) Where it was obvious that a person was under or over 18 years old there would normally be no need for an extended inquiry into their age. However, where, as in B’s case, a UASC could not provide any reliable documentary evidence to support his claim to be a minor, the determination of his age depended on the credibility of the history given, his physical appearance and his behaviour, factors which all interconnected. There was no statutory procedure or guidance issued to local authorities as to how to conduct an assessment of the age of a person claiming to be under 18 for the purpose of deciding on the applicability of Part III of the 1989 Act. Nor was there any reliable scientific test to determine whether a person was over or under 18. (2) It would be naive to assume that a UASC was unaware of the advantages of being classified as a child. A lack of travel documentation, including a passport, may justify suspicion, particularly where he claimed to have entered the country overtly in circumstances, for example through an airport, where a passport would be required. The matter could be determined informally, provided that minimum standards of inquiry and fairness were ensured. The decision-maker had to seek to elicit the general background of the UASC, including his family circumstances, his educational background and his history during the previous few years. Ethnic and cultural material might be important. A decision-maker would have to ask questions to assess a UASC’s credibility where there was reason to doubt it. It was not useful to apply notions of a burden of proof to the assessment. (3) A local authority’s social services department should not merely adopt a decision made by the Home Office, although it could take into account information obtained by the Home Office. (4) Merton had made its own assessment as to B’s age and not solely relied on the Home Office’s stance. The decision-maker’s reasons were inconsistent with the decision letter. However, it was permissible for the court to consider those reasons (Nash v Chelsea College of Art & Design (2001) EWHC 538). The evidence before the court represented the true basis of the decision and those reasons were adequate. A UASC was entitled to know the true reasons for an age assessment decision so that he could make an informed decision on whether to ask a local authority to review the decision or to make a complaint. The reasons did not need to be long or elaborate: it would have sufficed for the decision-maker to inform B that the decision was based on his appearance and behaviour and on the inconsistencies in his history which had made the decision-maker doubt his credibility. (5) The court should not impose unrealistic and unnecessary burdens on those required to make decisions such as this. Some cases would require more inquiry than others. The court should not be predisposed to assume that the decision-maker had acted unreasonably or carelessly or unfairly: it was for a claimant to establish that a decision-maker had so acted. It was not necessary to obtain a medical report. Nor was it necessary for a local authority to support a UASC for a period of days or weeks to give others an opportunity to observe him, if the information available was sufficient for a decision about his age to be made. It was greatly preferable for an interpreter to be physically present in an interview. Verbatim notes of an interview were also useful, although not essential as a matter of law. Such notes did not have to be counter-signed by a UASC. Procedural fairness required that a decision-maker explain the purpose of the interview to a UASC. (6) If a decision-maker formed the preliminary view that a UASC was lying about his age, he had to be given an opportunity to address the issues that led to that view (R (on the application of Q) v Secretary of State for the Home Department (2003) EWCA Civ 364). The decision-maker had failed to give B such an opportunity. Merton failed to establish that B’s responses could not have reasonably altered the decision. There was not a suitable alternative procedure for B to challenge the decision: there was no evidence about Merton’s complaints procedure; moreover, any complaint under s.26 of the 1989 Act would have been too slow for a child without accommodation or support. Therefore Merton’s decision had to be set aside and Merton had to reassess B’s age.

I note, with grim interest, this part of the Merton decision… “The court should not impose unrealistic and unnecessary burdens on those required to make decisions such as this” sadly, this is a custom more honoured in the breach than the observance.

There were other cases prior to Merton, but this was the big one, where the Courts made a solid attempt to get to grip with the issue of young persons asking for services and Local Authorities refusing on the basis that they appeared to be older than the group who were entitled to such services.

If the Courts felt that Merton  (do a good Merton assessment, make your decision, and it won’t be judicially reviewed) would put an end to the flood of judicial review challenges, on age assessments, they were sadly wrong.

There was litigation about medical evidence, about whether medical evidence was of any use at all, about whether the Local Authority had given enough weight to the medical evidence even though it was fundamentally not of assistance (there being finally acceptance that when deciding if a young person is 17 or 19, a medical test that is only accurate to within 2 years doesn’t help  – if one ever needs to argue this, R v Croydon –of course, helps R (on the application of R) v CROYDON LONDON BOROUGH COUNCIL (2011)[2011] EWHC 1473 (Admin) QBD (Admin) (Kenneth Parker J) 14/06/2011), and every single inch of the Merton assessments as lawyers nobly representing young persons sought to establish that the LA decision not to provide their client with services was “Wednesbury unreasonable”

There then came the decision of the Supreme Court, which knocked on the head any talk of ‘unreasonableness’ and judicial review, and determined that if there was a dispute between the LA and the young person about their age, this was a decision to be made by the Court.   (This had the, one hopes, inadvertent effect of massively expanding the number of potential cases, since one no longer had to show the Court that there was reason to believe the LA had been unreasonable in their age assessment, but just that the young person disagreed with it)


HELD: (1) In s.17(10) a clear distinction was drawn between whether a person was a “child” and whether that child should be “taken to be” in need within the meaning of the Act. That suggested that they were two different kinds of question. “Taken to be” imported an element of judgment which Parliament may well have intended to be left to the local authority rather than the courts. But the word “child” was undoubtedly defined in wholly objective terms, however hard it might be to decide upon the facts of the particular case. It admitted only one answer. As stated by Scarman L; where the exercise of an executive power depended upon the precedent establishment of an objective fact, the courts would decide whether the requirement had been satisfied, R. v Secretary of State for the Home Department Ex p. Khawaja [1984] A.C. 74 considered. Whether a person was a child for the purposes of s.20(1) was therefore a question of fact which must ultimately be decided by the court. (2) (Obiter) Those conclusions made it unnecessary to come to any firm view on the application of art.6 to decisions under s.20(1) of the Act. The House of Lords in Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 A.C. 430 had been content to assume, without deciding, that a claim for suitable accommodation under the homeless provisions of the Housing Act 1996 was a civil right, but no Strasbourg case had yet gone so far, Begum considered. In the instant case, the court was reluctant to accept, unless driven by Strasbourg authority to do so, that art.6 required the judicialisation of claims to welfare services of the kind in M and X’s case. If the right to accommodation under s.20(1) was a civil right at all, it rested at the periphery of such rights and the present decision-making processes, coupled with judicial review on conventional grounds, were adequate to result in a fair determination within the meaning of art.6, Tsfayo v United Kingdom (Admissibility) (60860/00) (2004) 39 E.H.R.R. SE22 considered.

[It is worth noting that the Supreme Court also went on to determine that a person seeking a challenge to the LA about accommodating them did not trigger article 6 of the Human Rights Act – at the time, this was probably academic, but now that the free legal advice provisions that enabled all of this litigation to be brought may vanish, it becomes more relevant. ]

It is settled law that when approaching this task, the Court is not bound by any decision of other tribunals as to their resolution of age-assessment conflict, though they may take them into account

R (on the application of PM) v HERTFORDSHIRE COUNTY COUNCIL (2010)

[2010] EWHC 2056 (Admin)

QBD (Admin) (Hickinbottom J) 04/08/2010

A local authority assessing the age of a young asylum seeker was not bound by an age assessment that the First-tier Tribunal (Immigration and Asylum Chamber) had made while hearing the asylum seeker’s asylum appeal.

The approach to be followed


Mr Justice Holman was the first judge to really grapple and set some guidance for the brave new world of Judges no longer just deciding whether the LA had behaved unreasonably, but actually deciding how old the young person in question was.  [Note that Mr Justice Holman ruled that the medical evidence was admissible into the fact-finding hearing, notwithstanding the earlier criticisms of it in the Croydon case referred to above, and also that he considered the cases to still run on a judicial review model, with permission being required]

R (on the application of F) v LEWISHAM LBC : R (on the application of D) (Claimant) v MANCHESTER CITY COUNCIL (Defendant) & SECRETARY OF STATE FOR THE HOME DEPARTMENT (Interested Party) : R (on the application of Z) v GREENWICH LBC : R (on the application of C) v CROYDON LBC : R (on the application of S) v SOUTHWARK LBC (2009)

[2009] EWHC 3542 (Admin)

QBD (Admin) (Holman J) 17/12/2009

HELD: (1) The approach to disputed age cases had been clarified by the Supreme Court. There still had to be an assessment by the local authority; judicial review was the appropriate mechanism and remedy for any challenge to that assessment and on any judicial review the essential issue was one of pure fact for the court, Lambeth LBC followed. The instant cases would be listed for a fact-finding hearing to determine whether, on the relevant date, C were children and if so, their date of birth. Once the court was required to engage on determination of whether a person was, on the relevant date, a child, it had to go on to make its own determination as to actual age or date of birth. (2) Proceedings such as the instant cases remained firmly proceedings for judicial review. Accordingly, permission was required before the claim could proceed. The relevant test for the grant of permission where the person had been assessed as over 18 years of age on the relevant date was whether there was a realistic prospect that at a substantive fact-finding hearing the court would reach a relevant conclusion that the person was of a younger age than that assessed by the local authority and was on the relevant date a child. Where a local authority had assessed the person as under 18 years of age on the relevant date, the test was whether there was a realistic prospect that the court would conclude that the person was of a younger age than that assessment. (3) The standard of proof in all such cases was the ordinary civil standard of the balance of probability. As to the question of where the evidential burden lay, that was entirely a matter for the judge at a final hearing and might depend on the facts and circumstances of individual cases. (4) If local authorities wished to defend cases by reliance on assessments of their social workers, then they had to produce those social workers for cross-examination if required. (5) Fact-finding hearings could not ordinarily take place without some involvement of the claimant and the engagement of the claimant with the court as, in most if not all cases, there was some issue as to the credibility of the claimant and the account that he or she had given regarding their history. However, the extent to which, and manner in which, a claimant participated or gave evidence was quintessentially a matter for the judge. (6) A major issue in such cases had been whether a decision of the local authority not to take into account medical evidence rendered the underlying decision regarding age assessment vulnerable to judicial review. There was nothing in the judgment of Collins J to indicate that such medical evidence was so unreliable or so unhelpful that it could simply be ignored altogether. The evolution of the approach to be taken indicated that such medical reports could not be disregarded by local authorities or by the court, Croydon LBC considered. Therefore, in the instant cases in which there was already such evidence, that evidence could be admitted into the proceedings and relied on.

Mr Justice Garnham QC developed this practical guidance further, in that the Court was not obliged to nail their colours to the mast on a firm date of birth, but rather to assess what was the most likely of a range of dates proferred.

R (on the application of N) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 862 (Admin)

QBD (Admin) (Neil Garnham QC) 16/03/2011

HELD: (1) A declaration as to a person’s date of birth could not be granted as a matter of course, especially in circumstances such as in the instant case where the declaration had potential effects on third parties who were not before the court, including the Home Office. Such a declaration would only be appropriate after careful consideration of the evidence. A court had to exercise an original jurisdiction and determine the precedent fact of whether the claimant was a child, and if so, his date of birth, for which the standard of proof was the ordinary civil standard of a balanced probability, R. (on the application of A) v Croydon LBC [2009] UKSC 8, [2009] 1 W.L.R. 2557 followed and R. (on the application of F) v Lewisham LBC [2009] EWHC 3542 (Admin), [2010] 1 F.L.R. 1463 applied. A court faced with such a question was not considering whether it had been shown on the balance of probabilities that a particular date was the true date of birth, but making an assessment of the most likely date of birth after comparing a wide potential range of dates, MC v Liverpool City Council [2010] EWHC 2211 (Admin), [2011] 1 F.L.R. 728 applied. Where all other factors were equal, the date might well be the middle of the appropriate range, because proximity to error increased towards the extreme ends of the range (see paras 2-5, 9, 35 of judgment).

Burden of proof

There had been some debate about whether the burden of proof was on the young person (since they were claiming to be a child and entitled to services) or the Local Authority (since they were claiming that the young person in question was not entitled to the services)

The Court of Appeal determined last year in R (on the application of CJ (BY HIS LITIGATION FRIEND SW)) v CARDIFF COUNTY COUNCIL (2011)

[2011] EWCA Civ 1590   that the burden of proof was not on the young person to prove that they were under 18, reversing the decision that had been made in the High Court on the same case.

The High Court’s supervision of the exercise of jurisdiction by an inferior court, tribunal or public body was not an issue which could be resolved according to the private interests of the parties. The nature of the court’s inquiry under the 1989 Act was inquisitorial and to speak in terms of a burden of establishing a precedent or jurisdictional fact was inappropriate. Once the court was invited to make a decision on jurisdictional fact, it could do no more than apply the balance of probability to the issue. A distinction needed to be made between a legal burden of proof and the sympathetic assessment of evidence. In evaluating the evidence it might well be appropriate to expect conclusive evidence from a claimant but the nature of the evaluation would depend on the particular facts of the case. Where a range of powers and duties which were exercisable dependent on the age of an individual were raised in the same proceedings, it would be highly undesirable for contradictory findings to be made as to the existence of the precedent fact. The nature of the inquiry in which the court would be engaged was itself a strong reason for departure from the common law rule which applied a burden on one or other of the parties. The court, in its inquisitorial role, had to ask whether the precedent fact existed on a balance of probability


[It is worth noting, however, that in the particular case, notwithstanding that the young person did not have to prove that he was under 18, the Court of Appeal agreed with the conclusion of the High Court that the young person was in fact over 18 and thus not entitled to the services he was seeking. ]

On burden of proof – the Courts have also ruled that the issue of burden of proof should only arise where the matter is so finely balanced that it was only this that would tip the balance

R (on the application of U) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 3312 (Admin)

QBD (Admin) (Judge David Pearl) 14/12/2011

HELD: When considering an age-assessment case, a judge had first to examine all of the evidence that had been presented and try to arrive at an assessment of the person’s age. Only if it was a close decision would it be necessary to resort to the burden of proof,

Is the judgment on age assessment confined to the Children Act proceedings, or broader?



[2011] EWHC 3488 (admin)

QBD (Admin) (Beatson J) 21/12/2011


The High Court found that the young person was over 18 and agreed with the Local Authority age assessment – disagreeing with two decisions of the Asylum and Immigration Panel that he was under 18.  (This of course poses an interesting internal dilemma, since the Court’s decision is binding for the purposes of the Children Act, but the AIP for the purposes of asylum and immigration, and the young person is currently occupying a state of flux akin to Schroedinger’s cat, being simultaneously under 18 and over 18. )


but, hoorah! The Court has also resolved this, by indicating the cases in which it is sensible for the age-assessment decision to be binding on everyone.




[2011] EWHC 2091 (Admin)

QBD (Admin) (Judge Anthony Thornton QC) 25/10/2011

it was possible to identify factors which had to be established for a declaration to be made in rem. A claimant had to show that: (a) the determination was in the form of a judgment and not simply a finding of facts upon which a judgment was based; (b) the tribunal had jurisdiction to make the relevant determination; (c) the relevant statute, expressly or by necessary implication, conferred on the tribunal the jurisdiction to make a determination in rem, indicated by the conferral of exclusive jurisdiction to make a final determination about the status of the claimant; (d) the judgment was final, on the merits and not by consent; and (e) there was a public interest in the judgment being one which bound everyone

I have found over forty reported cases on age assessments of unaccompanied asylum seekers, and those obviously don’t include any that are resolved by a Court but don’t have any particularly interesting or novel clarifications of points of law.  That includes seventeen in 2011 and thirty since the Supreme Court ruling.


Get every new post delivered to your Inbox.

Join 3,776 other followers