(Sitting at Cardiff) ON APPEAL FROM
THE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT (MR JUSTICE OUSELEY)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PITCHFORD
MR JUSTICE LLOYD JONES
| R (CJ by his litigation friend SW)
|- and -
|CARDIFF CITY COUNCIL
M Hutchings (instructed by Cardiff City Council (Raqeiya Riaz) for the Respondent
Hearing date: 1st December 2011
Crown Copyright ©
Lord Justice Pitchford :
"26. the 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is "in need" requires a number of different value judgments but where the issue is not what order the court should make but what service should the local authority provide it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the Public Authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and "Wednesbury reasonableness" there are no clear-cut right or wrong answers.
27. But the question whether a person is a "child" is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence but that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision-makers."
Lord Hope, in his concurring judgment, said at paragraph 51:
"51. It seems to me that the question whether or not a person is a child for the purposes of section 20 of the 1989 Act is a question of fact which must ultimately be decided by the court. There is no denying the difficulties that the social worker is likely to face in carrying out an assessment of the question whether an unaccompanied asylum seeker is or is not under the age of 18. Reliable documentary evidence is almost always lacking in such cases. So the process has to be one of assessment. This involves the application of judgment on a variety of factors, as Stanley Burnton J recognised in R (B) v Merton London Borough Council  4 All ER 280, para 37. But the question is not whether the person can properly be described as a child. Section 105 (1) of the Act provides: "in this Act 'child' means, subject to paragraph 16 of Schedule 1, a person under the age of 18". The question is whether the person is, or is not, under the age of 18. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court."
Evidence before Ouseley J
(1) An Iranian resident's card which gave the appellant a date of birth of 20 September 1993; the card had expired on 23 August 2006;
(2) A certificate from the Kharameh health centre also showing a date of birth of 20 September 1993; and
(3) A record of vaccinations in which the date of birth 20 September 1993 was recorded.
"23. Seven factors were listed as impinging on the Claimant's credibility and indicated that he was probably over 18: repeated lies about his age to officials en route to the UK; use of false documentation to prove identity and age; the improbability of a 15 year old from a rural area undertaking so long and arduous a journey to the UK; his obtaining employment several times; vagueness about his age and contradictions about the time spent in Turkey and Greece; he spent two years in secondary school which started at 14, and so he was likely to have been 17 when he left Iran, and then spent several months travelling to the UK; there was a consensus among professional and others e.g. foster carer, medical staff at the hospital and social workers that he was over 18."
"40. The result of the interview between Mr Nedsky and CJ was discussed the next day between Mr Nedsky and his Operational Manager, who had been involved in earlier decisions about CJ's age and care, but had not actually met him. Mr Nedsky made no recommendation about age, but the decision emerged by agreement in the course of the discussions that, taking everything into account, CJ was an adult. There is no record of the age decided upon, but Mr Nedsky said, and I accept, that they agreed to the 1988 birth date. If discharged to adult mental health services, he would be better looked after. He was discharged on 28 September 2009. There is no record of the reasons but I accept that the consideration was careful, and was based on the previous age assessment, what had happened since, and especially what had been said at the hospital."
The judge's analysis of the evidence and his conclusions
"123. I have in the end, after a great deal of thought, come to the conclusion that I should accept the appraisal by Mr Nedsky, that CJ now is 20 plus. This is supported by the general impression of foster carers and hospital staff, and for what little it is worth the brief Croydon LBC assessment. It is also more in line with my own view of his emotional maturity from his demeanour, relevant but not especially weighty let alone decisive. He could be between 18 and 22, but I found just 17 impossible to accept and untruthfully alleged. I do not regard Mr Winstanley's evidence as persuasive.
124. I have explained the difficulties in CJ's evidence which caused me to have real doubts about it. There is nothing sufficiently reliable in it taken on its own to cause me to alter my view that Mr Nedsky's appraisal, supported as it is by other, albeit more impressionistic views from different sources, is correct. All of that evidence however would require the reliability of the documents he produced to be well demonstrated for his claim as to his age to be accepted.
125. In my view, there are too many unsatisfactory features in CJ's evidence for it to be accepted in the light of all the evidence about these three documents. The expert evidence simply fails to persuade me that I can give them the necessary credence. As it is, the documentary evidence is insufficient to counter the strong reservations CJ's evidence created about his truthfulness. I do not have to find that the documents are forged or obtained by bribery or a mixture of the two. I am not satisfied as to their authenticity, having heard all the evidence".
"126. I have intended not to decide this case by what could be an unsatisfactory resort to the burden of proof. But it has been quite a close decision, principally because the speed with which the three documents were sought and obtained by CJ from Iran, supports their authenticity, which in turn helps CJ's credibility and could overcome my strong reservations about him. And I am aware of the fragility of the basis for the age assessment decisions. In reality, if I ask: has the Council shown the Claimant to be an adult aged over 18 now and on arrival, I would answer nearly but not quite. If I ask: has the Claimant shown himself to be under 21 now, the answer is no and he is some way short of doing so.
127. I therefore have had to decide who bears the burden of proof. In my view it is for the Claimant to show that he is or was under 18 at the time that he asserts a duty was owed to him as a child. First, in judicial review proceedings it is for the Claimant to show that the public authority has erred in its duties. Second, but obviously related, it is the Claimant who is asserting that the duty is owed; the authority is not asserting a power to do something. It is not crucial but supportive nonetheless that the readier means of knowledge lies with the Claimant on this issue.
128. I appreciate Mr Buttler's point that there may be instances under the Children Act, e.g. a disputed age for the purpose of preventing a parent removing a child from section 20 accommodation, where an authority might have to prove age. But that is consistent with the obligation being on the person who is exercising power to show his entitlement to do.
129. That is the basis of my decision in R (Becket) v SSHD  EWHC 2002 Admin para 2, that the SSHD bore the burden of establishing that the Claimant had obtained leave to remain by deception, the Khawaja issue  AC 74.
130. It is not for the authority to disprove the jurisdictional fact asserted by a Claimant as the basis for the duty alleged. It is for the authority to prove the jurisdictional fact which it needs to assert against a disputing Claimant in order to give it the power it exercises.
131. This is not a case either, as I have considered it, where there is a grey middle range of 17-19 with the crucial age falling in the middle. Giving the benefit of the doubt to such a Claimant wisely reflects the uncertain nature of age assessment. But that is not the issue here: it is which side of the large gap was this Claimant, essentially as a matter of credibility".
The appellant's case
" the 90th [section of the Act giving jurisdiction to the assistant commissioner] imposes a restraint on the jurisdiction of the Tithe Commissioners, among others, in the case of Lands and Tenants, Tithes whereof shall have been already perpetually commuted or extinguished under any act of parliament heretofore made. Now it is a general rule, that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends; and however its decision may be final on all particulars, making up together that subject matter which, if true, is within its jurisdiction, and, however necessary in many cases it may be for it to make a preliminary enquiry, whether some collateral matter be or be not within the limits, yet, upon this preliminary question, its decision must always be open to enquiry in the superior court
[T]o apply this to the present case, there can be no doubt, we conceive, that the jurisdiction of the assistant tithe commissioner was well initiated. He came to a parish in which de facto tithes were being paid in kind or by compensation, but he was met with an objection which if well founded in fact, showed he had no jurisdiction. He was bound to inquire into that fact; he did so and decided against the objection, and thereupon proceeded with the commutation. But the learned judge was quite right in ruling that his decision on this point was not final and conclusive. If upon further enquiry, he shall be found to have been correct in determining that the tithes of these lands have not been commuted or extinguished under the Inclosure Act, then all that he has done thereupon will, under the 45th section, be conclusive, subject only to the qualifications arising out of the 46th section. On the other hand, if that enquiry should terminate in sustaining the award, all that he has done will have been coram non judice."
"No tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction: such question is always subject to review by the high court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does not possess, whether at all or to the extent claimed, or to refuse to exercise a jurisdiction which it has and ought to exercise. Subjection in this respect to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction; for the existence of the limit necessitates an authority to determine and enforce it: it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure such a tribunal would be autocratic, not limited and it is immaterial whether the decision of the inferior tribunal on the question of the existence or non-existence of its own jurisdiction is founded on law or fact; a court with jurisdiction confined to the City of London cannot extend such jurisdiction by finding as a fact that Piccadilly Circus is in the Ward of Chepe."
"What then is the power of the courts? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition."
"39. No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." (The Rule of Law, Tom Bingham, p. 10).
It was a recognition by the House of Lords of this exception which in R v Secretary of State for the Home Department ex p Khawaja  AC 74 led the House to hold that once detention of an alleged illegal entrant on the authority of the Secretary of State was established the court must be satisfied that the power was lawfully exercised. It was not enough for the Secretary of State to show reasonable grounds for so concluding; the evidence must be sufficient to establish that the claimant was an illegal entrant.
Mr Justice Lloyd Jones:
Lord Justice Laws: