QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| - and -
|London Borough of Croydon
Secretary of State for the Home Department
| - and -
|Secretary of State for the Home Department
| - and -
|Kent County Council
Mr Bryan McGuire & Ms Peggy Etiebet (instructed by the Solicitor to the Council) for the Defendant
Mr James Strachan & Ms Deok Joo Rhee (instructed by the Treasury Solicitor) for the Interested Party
(2) Mr Gavin Millar Q.C. & Mr Graham Denholm (instructed by Bennett Wilkins) for the Second Claimant
For the First Defendant; as in (1) for the Interested Party
Mr Charles B้ar Q.C. & Mr Jon Holbrook (instructed by Kent County Council) for the Second Defendant
Hearing dates: 10 13 March 2009
Crown Copyright ©
Mr Justice COLLINS :
"For the purpose of assessing whether a child is a child, is paediatric evidence of the sort produced by Dr Michie and/or Dr Birch in these cases scientifically ill-founded and of no evidential value?"
For what seems to me to have been entirely correct reasons Bennett J decided that the issue was not appropriate for a preliminary hearing which focused on procedure rather than substance and that in any event it could not properly be determined without considering the full factual matrix of each case.
"32. If, however, I need to draw further support for that conclusion, I can find it in Lambeth LBC v TK and KK. Wilson LJ cited with respectful agreement the President's observations in E v London Borough of X  EWHC 2811 (Fam),  Fam 187, where Sir Mark Potter said:
" While the 1989 Act does not expressly so provide, it is inherent in its structure and content that a local authority, in any case where doubts are raised in respect of the age of a putative child in need of care and protection, should make an age assessment and, according to its results, decide whether to take measures in respect of the "child" under the provisions of the 1989 Act. It is thus an area in which the court must be careful to avoid assuming a supervisory role or reviewing power over the merits of the local authority's decision".
33. If more is needed, note Baroness Hale of Richmond in In Re B (Children)(FC)  UKHL 35 saying:
"57. It is also important to keep separate the roles of the courts and the local authorities in the protection of children from harm. Where a local authority have reasonable cause to suspect that a child in their area is suffering or likely to suffer significant harm, they must make the inquiries necessary to enable them to decide whether they should take any action to protect the child and if so what (1989 Act, s47(1))."
The remark was obviously obiter but it confirms that Part 3 is for the local authority and Part 4 for the court. Since Baroness Hale had, as I have already described, a modest part to play in the passage of the Children Act 1989, what she says about the way the Children Act operates can hardly be taken with a pinch of salt."
"82. To accede to the appellants' submission that the local authority have to contract out to independent experts all age determinations or to have the court decide the issue would be a recipe for administrative chaos. "Efficient administration" is, per Lord Hoffmann, a relevant consideration. How to accommodate these asylum seekers calls for an urgent, often very urgent decision about where a person is to lay his head that night. It cannot be delayed while the case is assembled before some other body not that there is such a body in place at the moment still less before the court. The cost in so doing would prove prohibitive. And, as I have asked already, if the local authority have to pay the independent body, will the pedantic still complain that it is not truly independent?
83. Moreover, further confusion would be caused if the age determination had to be hived off for some special treatment whereas the "need questions", admitted to be questions fit for administrative decision, were to be left for traditional judicial review. Such a division of decision-making would not work.
84. My conclusion is that age determination, being part of broader questions relating to the provision of accommodation, and being but one of the many responsibilities for local authorities to provide support for children and families under Part III, are decisions which fall squarely within the social field of child care and are, therefore, customarily and properly entrusted to the social workers to decide. It follows that judicial review does comply with the standard set by Article 6."
"The Border and Immigration Agency (BIA) will dispute the age of an applicant who claims to be a child but whose physical appearance and/or general demeanour very strongly suggests that they are aged 18 or over, unless there is credible documentary or other persuasive evidence to demonstrate the age claimed. In borderline cases it is BIA's policy to give the applicant the benefit of the doubt and treat them as a child.
If the applicant's physical appearance/demeanour very strongly suggest that they are SIGNIFICANTLY over 18 years of age the applicant should be treated as an adult and be considered under the process instructions for adults. These cases DO NOT fall within the age dispute process.
The BIA does not treat disputed age cases as children unless and until their age is established as being under 18. Even though the age dispute process follows the same principles as the child process, this is in place as a safeguard."
"In my judgment, the court should be careful not to impose unrealistic and unnecessary burdens on those required to make decisions such as that under consideration. Judicialisation of what are relatively straightforward decisions is to be avoided. As I have stated, in such cases the subject matter of decision is not complex, although in marginal cases the decision may be a difficult one. Cases will vary from those in which the answer is obvious to those in which it is far from being so, and the level of inquiry unnecessary in one type of case will be necessary in another. The Court should not be predisposed to assume that the decision maker has acted unreasonably or carelessly or unfairly: to the contrary, it is for a claimant to establish that the decision maker has so acted."
Those observations form an important background to these cases.
"In practice, age assessment 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 5 years either side. Assessments of age measure maturity not chronological age. However in making an assessment of age, the following issues should be taken into account."
There then followed an indication of what should be taken into account and what would not be regarded as helpful considerations. Anthropometric measures cannot be used to predict the age of an individual. At most they may play a part in conjunction with relevant factors from the individual's medical, family and social history. The situation is complicated because nutritional problems and illnesses can delay puberty so that an individual may be older than his physical developments appear to suggest. Ethnic differences also play their part. In summary, this is said:-
- "The determination of age is a complex and often inexact set of skills, where various types of physical, social and cultural factors all play their part, although none provide a wholly exact or reliable indication of age, especially for older children.
- Assessments of age should only be made in the context of a holistic examination of the child.
- As there can be a wide margin of error in assessing age, it may be best to word a clinical judgment in terms of whether a child is probably, likely, possibly or unlikely to be under the age of 18."
"The assessment of chronological age is notoriously difficult. Even among children who grow up in the same social and economic environment and come from similar ethnic backgrounds, there are significant physical and emotional differences, as well as differences in needs and vulnerability, between children of the same age. Separated asylum seeking children come from cultures and contexts in which childhood is defined in different ways and where the social, economic and political circumstances in which they live make it impossible for them to do the things that we expect children living in the U.K. to be able to do
The difficulty in assessing chronological age is further exacerbated by the fact that there is no scientific or medical assessment process which can solve the problem accurately."
She goes on to say that the medical assessment methods she describes are associated with a margin of error of at least two years in either direction and that assessment is particularly difficult for those aged between 15 and 20. She also makes the point that circumstances may have required a child to take on responsibilities which are beyond those expected of children in our society and so a child may display a maturity which is ahead of his chronological age.
"Because of the problems of sample size and ethnic and other differences, dental-age assessments are widely regarded as being highly unreliable for assessing age."
"There are increasing concerns among academics and practitioners alike that despite the problems with medical assessments of age outlined above, unreliable medical tests and examinations are being given unwarranted scientific legitimacy in the search for a technically simple solution to a difficult and seemingly intractable problem."
She refers to a conference in Austria in 2000 at which experts came to the conclusion that 'age determination is not possible using existing medical methods'. None have come into existence since then which can challenge the validity of that conclusion. This has meant that most paediatricians in the U.K. have taken a decision against involvement in the process of age assessment because, she assumes, they believe they have little to add to the process.
"9. My concern has been that practices including those relating to age assessments are not appropriately and sufficiently adapted for children and as a consequence do not provide the best or even an appropriate procedure in which to ascertain the relevant personal, family and background information required for age assessment. I am particularly concerned that the procedures do not in my view enable children effectively to participate in the process. My work with children has indicated that children do not always fully and properly understand the purpose of questions asked in the age assessment interview, the nature of the procedure or the consequences of the age assessment. In the context of unaccompanied asylum seeking children such procedural omissions can be significant. The disadvantages unaccompanied asylum seeking children and young people face are likely to be multiple given that they are alone, separated from their family, face language, social and cultural barriers, may have experienced physical harm and/or hardship and/or mental trauma and may find the entire experience of seeking and claiming asylum, dealing with officials and, professionals from a foreign country bewildering and even frightening. The comments on the age assessment process made to my staff by children and young people confirm these experiences.
10. Given the difficulties inherent in making factual assessments as part of the age determination process and in making decisions with (as shown below) such critical consequences for the future of the child, in my view the highest standards of procedural fairness and appropriate safeguarding of the interests of children is necessary. Age assessments are of course made pursuant to powers and responsibilities under the Children Act 1989 and carry the higher standard for consideration of child welfare than the UNCRC, namely the requirement to consider the particularised welfare matters in Section 1(3) of the Act and the paramount consideration given to children's welfare. My recommendation for such fair and protective procedures is not to diminish the need for a rigorous process, far from it; there is no conflict between the need for the system to screen out adult claimants and to ensure that those who are children are properly identified and protected. A careful and fair process producing the most reliable age assessments possible given the inherent difficulties of proof of age of asylum seekers, should serve both the protective and screening functions. "
While recognising and indeed supporting the use of social workers and other professionals he records concerns that financial pressures can influence the assessment of age since the particular age of an individual will require a greater or lesser expenditure on him. In raising this, he says he is not casting doubt on the integrity of social workers. The evidence before me from Kent and Croydon categorically denies that any such pressures have been applied or that any of those who have the responsibility of assessing the age of a UASC have been influenced by any financial considerations. I have no reason to doubt that evidence. Sir Albert expresses concern about Croydon's practice of locating age assessment at asylum screening units. He is concerned that there is a real risk that there will be a perceived link which may not be understood by the UASC and may impose pressures upon him which can lead to errors. Those concerns were more material to the point being made under the Article 6 argument that there was no independence and that that lack of independence was not cured by judicial review. The evidence from Croydon and Kent and an additional statement from an officer concerned in Cambridgeshire show that, whatever may be the concerns about risk or appearances, those responsible can be trusted to carry out their tasks properly so that the authorities and the Home Office can rely on their conclusions.
"60 [ .] Just because there is no single reliable method to calibrate and verify chronological age this does not mean that paediatricians have no role in the process. I have also had the opportunity to speak with professional colleagues from the RCPCH. Paediatricians have valuable expertise in taking histories and are experts at assessing the role of external factors such as environment and disease on the pace of physical and psychological development. They can use and rely upon methods and measurements that have scientific and in particular objective validity. They are also able to assess psychological functioning by way of recognised tests which again provide some degree of objective data over and above subjective assessments of demeanour and conduct which in a young person can prove very misleading. These medical assessments do not in my view depend upon a wholly subjective view of the personal credibility of the individual under examination which in my view is likely to be one of the least reliable indicators of age.
61. In the context of a genuinely holistic and multi-agency age assessment it is my strong view that paediatric assessments are capable of providing some level of objectivity to what otherwise becomes an entirely subjective process. This case appears to involve at least in part a personal challenge to particular paediatricians about which I do not consider it appropriate to comment. It is, however, in my view very important that the role of a paediatrician generally should not be discounted and undervalued as a general category of evidence and as a proper and indeed a valuable part of the evaluation of age that can assist both social workers and the young person in coming to reliable and fair determination of the issue."
"The large majority are asylum seekers from developing countries. Many of them have been subjected to deprivation and some to severe psychological stresses. I would expect these adverse events to have significant effects upon development, tending to delay it. Such effects would be particularly marked with respect to psychological maturity. The consequence of this would be that those clients would have both younger psychological profiles and/or earlier measures of physical maturity than their true chronological age."
It is Dr Stern's view that a paediatrician is unlikely to be able to reach a conclusion which is superior to that reached by an experienced social worker, provided, of course, that the social worker is properly trained and experienced and conducted the necessary interview in an appropriate fashion.
"For Standard Deviation of 2.1 there is a 72% chance that the age lies between +/- 2.1 years of that estimated; there is a 50% chance that the age lies between +/-1.47 years of that estimated and there is a 30% chance that the age lies between +/- 1.05 years of that estimated."
She recognises that an individual can fall outside the probabilities if at the extreme ends of the scale based on a scatter of individual values.
"The point remains that this was a report of a highly experienced doctor who claims expertise in this area and the local authority does not explain why it disagrees with it."
"For the reasons set out above, these appeals are dismissed. Nevertheless, I add this footnote for I am not without sympathy for the plight of young asylum seekers whether they be under 18 or just over 18 years of age. To arrive in this country often in a state of confusion, often traumatised by the events that have caused them to flee their own land, bewildered by what is happening to them, unable to speak the language and often without help must be a daunting ordeal, one which the Children's Commissioner has highlighted and one which in the paper Better Outcomes: the Way Forward, the Border and Immigration Agency acknowledge as I describe in  above. It does seem to me that although I have been satisfied that the present procedures comply with Article 6, nonetheless a better system could and in my judgment urgently should be provided and I hope this judgment will add impetus to the need for reform."
I would endorse what he says.
"As regards the particular issue of medical opinion in age assessment, the current position is as follows:
(a) Whilst it is not necessary for the local authority to obtain a medical report, a medical opinion will always be helpful:
(b) reliable medical opinion on the issue can only be got from one of the few paediatricians with experience in the area, but they may be of limited help (as in that case Michie was):
(c) When conducting or reviewing an age assessment, the local authority is under a duty to consider any medical report submitted:
(d) Where a local authority decides not to follow the views in a medical report, it is under a duty to give reasons for not following those views:
(e) A local authority should not 'rubber stamp' medical opinion, whether obtained by it or by an applicant: R v Wandsworth Borough Council ex parte Banbury (1987) 19 HLR 76 at 84-85. Osmani v Camden LBC  EWCA Civ 1706 at para. 38(8). On the other hand, local authorities cannot be expected to make their own critical evaluation of applicants' medical evidence and should have access to independent specialist advice, if they wish to disagree on medical grounds: Shala v Birmingham City Council  EWCA Civ 624 per Sedley LJ at para. 19. In my judgment, this passage supports the preposition that, in such circumstances, the local authority is not only entitled, but is required to, obtain its own specialist advice."
"[A] is of short and sturdy stature with a thick neck and wide shoulders. Stubble was noticeable along [his] jaw line and above his lip. Dark shadow noticeable along his jaw was considered to be an indication that he has been shaving for some time. [He] also appeared to have some acne scarring on his face.
Throughout the assessment [he] made good eye contact but came across to the social workers as nervous and jittery. The social workers had to reassure him several times by stating he would be receiving a service regardless of the outcome of the assessment."
Dr Birch recorded that the spots were not acne but sycosis barbae and that he shaved every three days which was in her view consistent with a 15 to 17 year old.
"Q. Who told you your dates of birth?
A. My father.
Q. When did he share this information with you?
A. When I left Afghanistan.
Q. When did you leave Afghanistan?
A. 2 years ago.
Q. Your father told you your dates of birth 2 years ago?
Q. How old are you now?
A. 15 years 4 months and 8 days".
He said he did not know when he would be 16 and the precise age given by him did not accord with his stated date of birth. He was asked where he went after leaving Samas, where he had been last living with his father before his father's death. He said his maternal uncle said he could not look after him and took him to Pakistan. He went to Pakistan directly after his father died. He later said that he left Afghanistan on the 15th day of Ramadan and travelled to Pakistan. There followed these questions and answers:-
"Q. Based on the information you provided you are saying that your father told you your date of birth 2 years ago. If your father told you 2 years ago that you were 15 years old, you cannot be 15 years old now but 17 years.
A. My father told me.
Q. Your father told you two years ago that you are 15 years, 4 months and 8 days?
A. Yes, he told me in Samas.
Q. Do you understand that if your father told you that age 2 years ago that means that you are now older?
A. it was not years ago but it was in Kumar."
At the conclusion of the interview, the following questions and answers are recorded:-
Q. We established that 2 years ago your father died and he was the one that gave you your date of birth.
A. on 15th day of Ramadan.
Q. Are you changing your account of the events?
A. My maternal uncle sent me this way after my father was killed in Kumar."
"Nazjibullah Ahsan presented on the day of the assessment as a nervous young man. He appeared to have gone through the physical characteristic of a developing adolescent. Najibullah's physical appearance he appears to have been shaving for some time. He has broad shoulders (-Najibullah gave no information that he has been involved in sporting activity that could possibly have explained a premature broadening of the shoulder) and mannerism during the assessment can be described as the characteristics of a young man in late adolescence or early adulthood. Najibullah appeared to be comfortable in his body: the nervous behaviour that Najibullah displayed during the assessment was deemed to be related to the assessment and his asylum claim and not a discomfort with a changing body.
Throughout the assessment Najibullah consistently said that he was told his age 2 years ago however he denied this at the end of the assessment. This brought into question the credibility of the information he supplied during the assessment. Additionally, the information that Najibullah gave regarding his age him being 15 years, 4 months, 8 days does not add up with his claimed date of birth of 01.04.1992.
- Najibullah claims that he is 15 years, 4 months and 8 days old. He claims that his father told him this exact age two years ago.
- Najibullah maintained throughout the assessment that he was given this age 2 years ago on the 15th day of Ramadan which would make him approximately 17 years and 8 months. When the assessing social workers highlighted the above to Najibullah he failed to give explanation or any response at all. It was only when the assessing social workers probed further that he claimed that he was not told 2 years ago but failed to elaborate further.
- Najibullah is also unable to say when he would be 16 years old.
- Furthermore if the date of birth that Najibullah gave was correct he would have been 15 years 5 months and 19 days when his father told him his age.
- Based on the above information the assessing social workers are of the view that Najibullah is older than his claimed age. Najibullah's account on how he came to know his age is not deemed to be credible and does not correspond with the dates given. Furthermore Najibullah's physical appearance and demeanour during the assessment suggest that he is a mature male. It is the view of the assessing social workers that Najibullah is an adult."
"We note Dr Birch's view that [A] was a poor historian but consider in particular that the issues as to when his father died, where he was when he was told his age, when he left Afghanistan and how long he spent in Pakistan are simple and important aspects that a person with a claimed age of 15 would know. The assessing social workers were aware that where there is a doubt [A] should be given the benefit of it and confirm that this was done."
Criticisms of the interview are rejected. Reasons are given for placing little weight on the birth certificate.
"We are not satisfied that the birth certificate is reliable evidence of Najibullah's age. We do not consider that the document itself is likely to be genuine. We accept the conclusions of the Immigration Board of Canada's research into identity documents from Afghanistan, which says that birth certificates are rare and have historically not been issued in Afghanistan. It does state that they may in certain very unusual circumstances be obtained from the hospital and approved by the Interior Ministry but also that the availability and veracity of birth certificates varies widely although birth records are provided by some hospitals and local authorities. It also records that if birth certificates are not obtained after a child's birth they are difficult to acquire later.
Najibullah's purported birth certificate is a photocopy, and we consider that it is difficult to be satisfied that the document is genuine from a photocopy. It is written in English and therefore is likely to be only a translation, was acquired subsequently (after his birth) and it does not appear to be approved by the Interior ministry.
Najibullah has no documents to verify his identity. Therefore, there is nothing to link this document to Najibullah."
It seems that there was no age assessment of the claimant's brother by Westminster. In any event, the presence of a brother, who may have been younger than the claimant, cannot be more than a matter to be taken into account.
"Wahid presents as a young person who has a quiet disposition with a pleasant temperament. Wahid is very confident and articulate in speech. His physical appearance is that of a young person in his late teens, he has an Adam's apple, he has a deep male voice, and he has facial hair. Although he has a small body, his body appears to have stopped growing. Wahid's physical appearance seems to be a young person who looks after his person (sic) hygiene, his hair, his clothes, and his general appearance is that of a young person who takes great care and pride in his looks."
"Wahid appears to be a pleasant young man who is likely to be a post pubescent male. His physical appearance denotes facial and skeletal definition that is indicative of a young person of about between the ages of 18 22 years old. Wahid has muscular definition, he has facial hair and there is indication that he could have been shaving for a while, which is an indication that Wahid is a mature male in his late teens. During the assessment, Wahid spoke with a resonant and consistent tone and volume, expected of an adult male. Wahid's body mass appeared in proportion to height and weight is consistent with an adult male and not a 15 year old. Reception centre staff supporting young people placed at the Granby have been assessing Wahid over a period of time and the general view was that Wahid is not younger than 18 years; Brian Hill stated in his report that having observed Wahid and spoken to him and was of the view that Wahid was between 18 and 20 years old. Ellen Luck who is also a member of staff stated that she was of the view that Wahid was 20 years old. Rodger Bushen stated that he was of a view that Wahid was over 18 years old, Boris Popur also stated that Wahid was 18 years and over. The young person was observed and interaction between staff and Wahid and the conclusion was that Wahid was an adult. This information was based on his physical appearance and the way the young person conducted himself while he was in their care.
Although Wahid stated that he did not have much education he came across as a young person who was of average intelligence with no cognitive issues. Wahid was able to understand new concepts and rationalise, and logically disseminate information. Wahid stated that he could not read or write, he stated that he had no concept of time, dates or years because he only had three years education. Wahid stated that he did not like school. Wahid was able to explain and tell the assessors the countries he travelled through with no difficulty, although he stated that he only travelled during the night and they were in hiding during the day. Wahid was able to state that he was arrested in France but could not tell the assessors the other country he was arrested in and yet he knew every single country he travelled through before he arrived in the United Kingdom. Wahid did not give much information about his life story and most questions were often answered with 'I don't know or I don't know when because I was in school for three years' this was perceived as Wahid refusing to give information which could indicate his age.
Wahid stated his mother had another child who is Wahid's half brother. Wahid stated that his half brother had a quarrel with his mother and left home. Wahid was asked how old his half brother when he left home. Wahid stated he did not know, he replied this was before he was born. Wahid was unwilling to give information about his brother or cousin who lives in the United Kingdom; the assessors concluded that Wahid was withholding information; as a result, this became very difficult to get an in-depth assessment of the young person's needs or his family history.
In conclusion, Wahid's physical appearance, presentation, demeanour and behaviours are consistent of a young adult of about 18+ years. Wahid's version of events may have some elements of truth but the story lacks depth and credibility due to lack of dates and timescales which makes it very difficult to comprehend what Wahid's life story is about.
It should be noted that all reception centre staff supporting young people placed at the Granby were of the view that Wahid is a young man not younger than 18 years and that he may be several years older."
"(a) Wahid presented as a very immature and confused young boy. He was trying his best to sort out a complex situation and seemed to be struggling with trying to be responsible and make out he was 'grown up' whilst at the same time being very immature and vulnerable. Seemed to have little concept of risk and danger and his general demeanour was one of a very young early adolescent.
(b) Wahid was very restless and chewed my pencils, made a paper plane with my appointment list and played with my disinfectant, grabbing things up like a young child would do."
"My Lords, I agree with those submissions to the extent that, in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J  1 W.L.R. 583, 587 stated that the defendant had to have acted in accordance with the practice accepted as proper by a 'responsible body of medical men'. Later, at p.588, he referred to 'a standard of practice recognised as proper by a competent reasonable body of opinion'. Again, in the passage which I have cited from Maynard's case  1 W.L.R. 634, 639, Lord Scarman refers to a 'respectable' body of professional opinion. The use of these adjectives responsible, reasonable and respectable all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."
Since, he submitted, there is no body of opinion which I could properly regard as being responsible, reasonable or respectable, I should on that basis not only reject Dr Birch's findings but decline to permit her to be admitted as an expert.