QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of
|- and -
|HERTFORDSHIRE COUNTY COUNCIL
Holly Stout (instructed by Kathryn Pettitt, Chief Legal Officer, Hertfordshire County Council) for the Defendant
Hearing date: 20 July 2010
Crown Copyright ©
MR JUSTICE HICKINBOTTOM :
The Relevance of Age to Asylum Seekers
"It has been noted that you have had a dental age assessment that concludes you are 19 years and 8 months old, making your date of birth 15 November 1989. This has been accepted by social services. It is therefore not accepted that your date of birth is as claimed and it is asserted that your actual age is as assessed."
It is not clear why that letter indicated that the Council's Social Services Department had accepted that the Claimant was an adult, when this was not in fact the case. As I have said, in December 2008 they considered the Claimant's date of birth to be 15 November 1991; and, by July 2009, they had not reviewed that assessment in the light of the dental evidence. That review did not take place until September.
"There is not an absolute correlation between dental and physical age of children but estimates of a child's physical age from his or her dental development are accurate to within + or - 2 years for 95% of the population and form the basis of most forensic estimates of age."
But it does go on to warn against relying entirely on medical evidence. In the summary to paragraph 5.6, it stresses that:
"Assessments of age should only be made in the context of a holistic examination of the child."
"In such circumstances there is a clear need for any assessment to consider the welfare and well-being of such young people including, where it does not compromise safety and well-being of others, to exercise the benefit of the doubt towards the benefit of the young person. Therefore on balance and to serve the interest of natural justice and welfare concerns, and to give due weight to more recent behavioural and interaction observation, it is thought that he should be viewed as being around 16 years of age."
As a consequence, the Claimant's date of birth was estimated to be 1 September 1993 (i.e. nearly two years later than 15 November 1991 as originally assessed in December 2008), which would put him in School Year 11. In fact, for that new school year, he entered the local secondary school in Year 10, to take account of the fact that he came from Afghanistan and had had restricted schooling .
"[W]hile I find the [Claimant] has been telling the truth about his stated name and Afghan nationality I find he has not been truthful about his age, experiences he claims prompted him to leave Afghanistan or the reasons he has stated for fearing to return there.
I do not find the appellant is a minor. I find he has reached 18 years of age and that he has entirely concocted a story upon which to try to base a successful asylum application in the UK."
As can be seen from that short extract, the judge found that the Claimant's assertion that his age was 14 years was untrue, and that that undermined his credibility. His age was also, of course, potentially relevant to his human rights appeal (particularly under Article 8), which was also dismissed.
"In summary Judge Lingard found that PM was not a minor having 'reached 18 years of age', although no precise indication is given of the perceived date of birth. Judge Lingard also rejected the appeal against the rejection of his asylum claim. It was clear that this determination could not be ignored. Following a discussion with [my] Assistant Team Manager, I considered the details of the determination and, since it appeared to me that a finding of fact about PM's age had been made by a Tribunal that was dealing with that matter, I understood that that had to be respected by the authority. I was mindful in this regard of the judgment given by the Supreme Court in November 2009 in R (A and M) v LB Croydon. I understood that the Supreme Court had made it clear that the age of a person was a question of fact to be determined by the court and not one for the judgment of local authority. That said, I did also consider whether or not I agreed with the Tribunal's decision, having read the reasons given by the Judge for his conclusion. I recognised that when I had assessed PM, I had consciously given him the benefit of the doubt because of his health needs. Having read the Tribunal's decision, I saw no reason to disagree with it…".
The Supreme Court case to which Mr Griffiths referred was R (A) v London Borough of Croydon; R (M) v London Borough of Lambeth  UKSC 8 ("A and M"), to which I shall return.
"This is to confirm that the above named person had been supported by Hertfordshire County Council since his arrival in the UK on 24 November 2008. He was age assessed to be 16 years but this age assessment was never accepted by the Home Office. The matter went to court on 17 March 2010 and the judge held that the young person is above 18 years. This means that the above named person was not supposed to have been supported by Hertfordshire County Council as a "Child Looked After" under section 20 of the [1989 Act]. Central placement has therefore cancelled his placement and the last date for him at his current placement is Wednesday 21 April 2010. Could you please assist this young person to assess NASS services…".
"One issue was how old PM was to be taken in the light of the Tribunal's decision. Having discussed the matter further with my Assistant Team Leader and [a supervisor] we concluded that since PM had been found to be over 18, and the Judge had placed significant weight on the dental age assessment, we should take the dental age assessment as the accurate figure and therefore the concluded approximate date of birth would be one that made him 19 years 8 months in June 2009… This meant that PM would have been an adult at the time he arrived in the UK and therefore would not have been eligible for support as a child under the terms of the [1989 Act]. It also followed that he would therefore not be eligible for ongoing support under the Care Leaving legislation. These were the key factors that led to my confirming on 14 April 2010 that, subject to appropriate transfer, PM's support would be ended…".
Grounds of Challenge and Issues
(i) The 1 April 2010 determination of the FTT that the Claimant is over 18 years old is a judgment in rem, and as such is binding on the world at large, including the Council ("the Judgment in Rem Ground").
(ii) If the determination of the FTT that he is over 18 is not binding on the Council as to the Claimant's age, nevertheless, that determination having been made by a tribunal of competent jurisdiction in a matter in which the Claimant was a party, it is an abuse of process for him to contend otherwise in other proceedings ("the Abuse of Process Ground")
(iii) In any event, it is lawful for the Council simply to adopt the decision of the FTT as to the Claimant's age, without making a further full age assessment itself, or indeed giving any further consideration or reasons for that adoption ("the Adoption Ground")
The Judgment in Rem Ground
"… [N]o person can thereafter question the existence of that state, irrespective of whether or not he was a party to the earlier decision."
In other words, a finding as to status is conclusive evidence for or against all persons.
"The question is whether the local Act has given the justices jurisdiction to determine whether the street in dispute is a highway repairable by the inhabitants, as a substantive issue in rem, or merely as a medium concludendi of the liability or non-liability of the objectors. If the former be the true view, then a decision on that issue, raised by one of the class interested, is good against all the rest."
Again, that draws the distinction between a judgment and the facts upon which a judgment is based.
"A judgment in rem is an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for the purpose. Such an adjudication being a solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is as declared, it precludes all persons from saying that the status of a thing or person adjudicated upon was not such as declared by the adjudication...".
Lord Mance cited a number of other textbooks which, he said, are to like effect. He went on (in ) to make clear the importance of properly construing the provisions which empower the relevant court, to identify "the nature and terms of the court's jurisdiction to make a determination [in rem]", citing the Wakefield case.
"It would be extraordinary if Lambeth were, in some way bound to follow such a decision where the very person (i.e. M) who in effect is seeking to enforce against it on Lambeth, failed to bring to the attention of the AIT pertinent facts which might have had the result of the AIT deciding the case adversely to him and thus consistently with Lambeth's decision of December 2006. Further, Mr Straker provided no argument that Lambeth could have somehow had the decision of the AIT set aside."
In A and M in the Court of Appeal ( EWCA Civ 1445 at ), Ward LJ held that the determination of age by a local authority was not a judgment in rem:
"It was… a staging post or a preliminary finding on the way to the consideration of the broader question of whether the applicants are entitled to be accommodated by the local authority or whether they must look to the Secretary of State to find them shelter."
Although those comments were made in the relation to an age assessment in the context of section 20 of the 1989 Act, they certainly do not support Ms Stout's submissions. For the reasons I have given, I do not consider the judgments or approach of the Supreme Court affect, one way or the other, whether the assessment of age by the FTT is a judgment in rem: and so those comments appear to me still to be good - limited in value as, I accept, they are in the context of the case before me.
The Abuse of Process Ground
"[An abuse of process] may also arise where there is such an inconsistency between the two [i.e. the earlier finding and the new contention] that it would be unjust to permit the later one to continue."
Auld LJ suggested that any mere re-litigation short of cause of action or issue estoppel would not necessarily be an abuse; but it may amount to an abuse if there is an additional element, such as a collateral attack on a previous decision. Ms Stout submitted that the Claimant's contention in this claim does amount to a collateral attack on the FTT determination.
The Adoption Ground
"He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision."
If the later application was different and hence distinguishable from the earlier application, that may be a reason for departure (see my comments in Miller v North Yorkshire County Council  EWHC 2172 (Admin) at -): as may a different exercise of judgment, e.g., on the weight to be given to a particular factor.
(i) First, evidence as to age may have been put before the tribunal that has not previously been before the Council. The Council are, of course, able to take any such new evidence into account in considering their own assessment.
(ii) Second, the Council will have, not just the finding of the tribunal, but the judge's reasoning and the process by which he came to the conclusion that the Claimant was over 18 years old, which might assist their own assessment of the Claimant's age (although, of course, in considering even that, the Council will have to bear in mind the differences between the evidence available to the judge and that available to them to which I have referred). In my view, that is what, in a planning context, Mann LJ was getting at in North Wiltshire. For that reason, I do not find any inconsistency between the evidential principle of Hollington, and the public law principle illustrated by North Wiltshire: the subsequent public decision-maker must respect, not the finding made by an earlier decision-maker per se, but the earlier decision-making process.
Summary and Conclusion
(i) I shall allow the application, and quash the decision of 14 April 2010 to cease providing services for the Claimant in the form of accommodation, support and schooling.
(ii) I shall direct the Council to continue to provide those services on the basis of their age assessment dated 7 September 2009 pending a reassessment by them of the Claimant's age, and for 14 days after informing the Claimant of that reassessment and (as a result of it) the services the Council consider themselves obliged to provide to him in the future.