Is it for the Local Authority to assess age? Bryan McGuire

Man or Boy? That is the question … R(A) v London Borough of Croydon; R(M) v London Borough of Lambeth [2008] EWCA Civ Two unaccompanied asylum seekers claim to be under 18. Social workers employed by LAs assess them to be over 18. Applicants challenge. CA judgment in favour of LAs on 18 December Appeal to House of Lords to be heard end of July. Others lined up in the Administrative Court.

Issues in the Court of Appeal 1. Precedent Fact / Construction The question: did Parliament entrust age assessment to the LA or the courts? The answer: LA to age assess. Read into s.20: “Every LA shall provide accommodation for any person whom the LA have reasonable grounds for believing to be a child in need…”.

Precedent fact / Construction (cont.) The reasoning: (a)The subjectivity argument: “Child in need” subjective judgment for LA. (b)The good administration argument: If courts to determine age, prejudicial to good administration: cost and delay. (c)The scheme of the Act argument: Pts 2 and 4 for the courts, Pt 3 for the LA.

Issues in the Court of Appeal 2. Article 6 Is LA age assessment A6 compliant? The questions: (a)Is there a right to accommodation? Yes. (b)Is it a civil right? No. (c)Has there been a determination? Yes.

Article 6 (cont.) (a)Were social workers independent and impartial? No. [61] (b)Does JR constitute sufficient compliance? Yes: (i)“Trained decision-makers should not be treated as inferior being intellectually unable to approach the task with an open mind. The fair- minded and informed observer would have that in mind.” [70] (ii)Age assessment only “a staging post” in s.20. (iii)If contract out age assessment, LA pays, so still no independence. (iv)The good administration argument (again).

Summary – of the story so far 1.Parliament intended LAs to age assess 2.LA age assessment is Art. 6 compliant. 3.Themes: (a)Social work for social workers. (b)Good administration. (c)Scheme of the Act.

Epilogue: Appellant’s Arguments in the House of Lords Construction: contrary to wording of Act. Art. 6: (a)S.20 is a civil right: public/private distinction out of date. (b)Social worker lacks apparent impartiality. (c)JR not sufficient remedy given nature of decision. (d)Tribunals for pecuniary benefits. Why not for age assessment? (e)Tsfayo v UK [2009] 48 EHRR 18

Appendix: Navigating s.20 Ward LJ’s roadmap of s.20 (adopted by Baroness Hale in R(G) v Southwark [2009] UKHL 26) [75]

1.The decision on age is one for Local Authorities age assessors.

2.The decision can only be challenged on usual Judicial Review grounds.

3.Local Authorities should therefore continue to take into account all evidence submitted to it including paediatric reports:

4.Local Authorities still needs to read the paediatric report:

5.Local Authorities are entitled generally to place little or no weight on a paediatric report:

6.Paediatric reports are not trump cards.

7.Local Authorities do not need to obtain their own report from a paediatric expert:

8.Dr Birch is unreliable.

9.So is Dr Michie.

10.Local Authorities still need to take into account and consider other ‘medical reports’:

11.It is not necessary for the authority to obtain the generic report of Dr Colin Stern, praised in the judgment.

12.Permission to appeal was refused, and no stay was granted in any claim other than those of A, M and WK.

13.The Claimant may still seek leave to appeal from the Court of Appeal.

14.Local Authorities are applying the Collins J judgment:

15.Collins J made an order that Claimants in such cases should not be removed from the UK pending the outcome of the House of Lords appeal in Av Croydon; M v Lambeth.

16.Local Authorities should record the total amount of time taken in assessing an individual’s age:

17.Local Authorities should record that the applicant has been advised that he can appeal the decision.

18.Local Authorities should inform the applicant that the assessment will be used by the Home Office:

19.Local Authorities should avoid certain phrases:

20.Local Authorities should give proper, adequate and intelligible reasons:

21.Local Authorities should maintain a consistent approach to all aspects of all its age assessment cases.

22.Local Authorities should actively consider writing to all actual or intended claimants stating that the dispute is of no merit

23.If this letter is ignored and/or the claim is not withdrawn, Local Authorities shouls consider making applications to the court to have the claim dismissed.

24.Consideration should be given to cost.

25.Local Authorities should investigate how quickly UKBA would accommodate

26.Local Authorities should actively consider sending the above correspondence to the Legal Services Commission: