England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Rolls Building, Fetter Lane, London, EC4A 1NL
		17/03/2021

Covid-19 Protocol:  This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to BAILII.  The date and time for hand-down is deemed to be 17^th March 2021 at 10am

Mrs Justice Lang :

1. By an application dated 24 February 2021 the defendant applies for an unless order requiring the claimant to consent to and co-operate with the D preparation of an expert report on his teeth and his age by Professor Graham Roberts, including attending an appointment for the preparation of a dental panoramic x-ray. In the event of non-compliance, the claim is to be struck out. The substantive hearing is listed for one day on 17 June 2021.
2. The claimant contends that he is an unaccompanied child asylum seeker from Afghanistan. He entered the UK on or about 2 October 2019. He is E vulnerable, he suffers mental health problems and has a history of self- E harming. He does not know his precise age, but when the claim was issued on 10 July 2020 he claimed to be 14 years old.
3. The defendant undertook an age assessment and in a report dated 15 May 2020 it concluded that the claimant was a young adult over the age of 18.
4. In pre-action correspondence the claimant contended that the defendant F failed to carry out a procedurally proper and fair assessment, and the assessment was not carried out in accordance with the Merton requirements (see R (B) v Merton London Borough Council [2003] 4 All ER 280).
5. In an e-mail dated 24 June 2020, the defendant decided to "reopen" the age assessment with two different assessors. When the claimant objected on the basis that the previous assessment should be withdrawn altogether, G not merely reopened, the defendant responded in an e-mail dated 26 June 2020, explaining that the assessment was being reopened to give the claimant a chance to respond to matters that the previous assessors were minded to hold against him. The previous assessment would no longer be relied upon as a conclusive decision, but it would be considered by the new assessors as part of an ongoing assessment. The new assessors would consider the factual material available to the previous assessors, as well as further factual material H obtained since. In the meantime, the defendant agreed to treat the claimant as a putative child for the purposes of accommodation and welfare services.
6. A claim for judicial review was filed on 10 July 2020, which challenged the age assessment of 15 May 2020 and the defendant's decision to reassess dated 26 June 2020. Permission to apply for judicial review was granted on 13 October 2020 at an inter partes oral renewal hearing before Mr Matthew Gullick QC, sitting as a deputy judge of the Queen's Bench Division. A Directions were given for amended pleadings to be filed.
7. On 23 October 2020, the defendant served a further age assessment undertaken by the same assessors as before, not new assessors, as indicated by the defendant in the correspondence in June 2020. The assessment sought both to update and to improve upon the 15 May 2020 assessment. Amongst other matters it referred to a letter from the claimant's treating dentist, who B noted that his two upper wisdom teeth had come through and that wisdom teeth normally emerge between 17 and 21 years of age and, also, that it was unusual to see molars in such a state of decay in a child of 14. The assessment also found that he had not grown at the rate to be expected for a boy of his claimed age. The assessors concluded that the claimant was at least 18 years old, and probably aged between 20 and 23.
8. The claimant was given permission to amend his statement of facts and C grounds and the amended grounds were filed on 2 November 2020. The grounds are summarised at para 57 of the statement of facts and grounds:

"(1) There is procedural unfairness to the proposed approach to that the defendant would propose to take if obliged to undertake a further assessment;

"(2) The proposed decision-making proposed fails to ensure the appearance of the absence of bias or prejudice to a fresh assessment by two new assessors;

"(3) It is consistent with the best interests of the child principle that there be a fresh and untainted assessment by new assessors;

"(4) The unfair process would be contrary to section 6 of the Human E Rights Act 1998 that requires the positive safeguarding of the private and family life interests of the claimant through a fair procedure and that he be afforded the proper administration of the scheme;

"(5) The age assessment concluded by the defendant's assessors on 15 May 2020 and on 23 October 2020 was conducted in a manner that was procedurally unfair and lacking in the necessary safeguards that ought to be applied to the process. It was not a Merton- F compliant assessment. In particular it is flawed in consequence of the following: (i) the defendant has placed an undue and improper reliance upon physical appearance, or interview demeanour, to determine age; (ii) failure to properly take account of cultural, racial and social considerations; (iii) failure to consider or observe the margin of error to the assessment of age and/or failed to apply the benefit of the doubt to G any evidence; (iv) failure to give due or sufficient regard to relevant facts or considerations; (v) failure to conduct a due and sufficient enquiry into relevant matters; (vi) failure to seek to elicit an account by building rapport or trust; (vii) failure to provide a 'minded-to' meeting to enable any points of challenge to the claimed age to be put to the child for his response.

"(6) The defendant's age assessment process did not adhere to or H follow the requirements of the common law and/or practice set down by the applicable Age Assessment Guidance of the Association of Directors of Children's Services, October 2015;

"(7) The assessment suffers from fundamental misunderstanding of

fact in failing to correctly understand the information from the dentist or health assessment; and/or

"(8) The defendant's officers purport to attribute relevance or weight to matters of a medical and scientific nature the evaluation of which is outside of any asserted expertise possessed by a social worker. This B ignores the jurisprudence establishing that the assumptions of the kind made by the officers are unreliable and not capable of the determination of chronological age. Non-expert opinion is a fortiori more dangerous than unsubstantiated expert opinion such as the courts have been astute to reject in this field; and/or the defendant's assessment decision is flawed as a matter of public law for failure to take account of material factors, and/or being unreasonable or irrational; and/or

"(9) The defendant's age assessment is wrong as a question of fact. Further and in any event, the claimant disputes the assessment of his age by the defendant, and respectfully invokes the jurisdiction and protection of this court."

9. Sub-paragraph (9) above, which contends that the age assessment is D wrong as a question of fact, is a reserved issue which is not to be considered determined at the forthcoming judicial review (see para 163 of the statement of facts and grounds).
10. The relief sought in the claim is set out at para 165 of the statement of facts and grounds as follows:

"(1) Declaratory relief appropriate to the court's resolution of the points of law of general principle identified hereinbefore and guidance set down;

"(2) In particular, a declaration that to provide a withdrawn or quashed assessment to the assessors is procedurally unfair and/or fails to ensure the appearance of the absence of bias or prejudice to the further assessment and/or is inconsistent with the best interests of the child principle and/or would be an unfair process contrary to section 6 of the Human Rights Act 1998;

"(3) declared unlawful, and the requirement identified that it be replaced with guidance consistent with that given by the court that sets out the law to be adhered to;

"(4) If necessary, following resolution of the above matters, an order (i) quashing the defendant's purported age assessment dated 15 May 2020 and 23 October 2020 due to procedural unfairness, and/or public law error or flaw and/or any other relevant basis, and/or (ii) directing that it be expunged or removed from the claimant's records and/or is not to be provided to the new assessors in writing or any other form in full or in summary; or, alternately, if in any measure, is to be limited to that which the court shall specify;

"(5) Directing that there shall be a Merton-compliant assessment by two new independent assessors;

"(6) [Following the determination of the judicial review claim before this court] Should it prove to be necessary, a fact-finding hearing be directed to follow to ascertain the claimant's correct age, to be determined by the Upper Tribunal; and/or

"(7) A declaration that the claimant's date of birth is one A commensurate with the age he has given (or such date as the court or tribunal shall determine);

"(8) Costs."

11. On 20 November 2021, the defendant filed a document called "Further grounds for defending the claim". I infer that this was also intended to be the defendant's detailed grounds of resistance as ordered by the B permission judge. Amongst other matters, the defendant pleaded that the assessment of 23 October 2020 was a new decision which the claimant did not have permission to challenge.
12. The claimant, in his pleaded reply and in an application to amend, sought to add a challenge to the decision of 23 October 2020 in section 3 of the claim form. The defendant consented to the proposed amendment but C applied to strike out the rest of the claim on the basis that it had become academic. It opposed the grant of permission, but in the event that permission was granted, it applied for the claim to be transferred to the Upper Tribunal.
13. On 15 January 2021, David Lock QC, sitting as a deputy judge of the Queen's Bench Division, granted the claimant permission to amend the statement of facts and grounds, and refused to transfer the claim to the Upper Tribunal for the following reasons: D

1. Permission was granted on renewal to the claimant by the order of Mr Matthew Gullick QC of 13 October 2020 to bring these proceedings to challenge the methods used by the defendant to assess the age of asylum seekers who claim to be under the age of 18. This is a challenge to aspects of the decision-making processes used by the E defendant in this case (and no doubt in other cases). The deputy judge E ordered the claimant to file amended grounds to reflect the fact that the defendant had conducted a further age assessment by the time of the renewal hearing. The systemic nature of the challenge was reflected in the order of the deputy judge that the case should be heard by a full High Court judge if possible.

2. It seems to me plain from the terms of the order that (a) the F deputy judge anticipated that the trial judge would assess the lawfulness of the defendant's decision-making systems against the criteria set out in R (B) v Merton London Borough Council [[2003] 4 All ER 280], (b) that challenge would include the methods used in both the initial and revised assessment in the claimant's case (hence the requirement to file amended grounds) and (c) any question of permission for making the G amendments would be dealt with at trial.

3. The position of the defendant appears to be that the claimant's challenge should be limited to the decision reached by the defendant in this case that the claimant is not an adult. Whilst the court has the power to decide for itself whether a person is (or was on a given date) a child, that is not the relief that the claimant seeks in this case. His case is that the defendant used legally flawed decision-making processes to reach H the decision that he was not a child not that the court should conduct that assessment for itself.

4. In those circumstances, it appears to me that this is not a case which should be transferred to the Upper Tribunal because the issues are not confined to the claimant's age as the defendant suggests. Further, unless the defendant has changed its decision-making processes, the claim is not academic. I thus grant permission to amend and refuse to transfer the case to the Upper Tribunal."

14. It seems to me that consistently with his order and these reasons Mr Lock QC should also have granted permission to amend section 3 of the claim form, as per the application of 10 December 2020. This may have B been an oversight on his part. In my view, the amendment to section 3 of the claim form is an essential step and so I will make that order today for the avoidance of doubt.
15. On 24 February 2021, the defendant made the application which is listed before me today, namely, for an unless order requiring the claimant to consent to preparation of an expert report on his teeth and age by Professor C Graham Roberts. The defendant explains that the issue of the claimant's age needs to be urgently determined as it is satisfied that he is, in fact, an adult, based on the assessment of 23 October 2020 and, in particular, the most recent evidence about his lack of growth and the presence of wisdom teeth. It is therefore no longer appropriate for him to be treated as a child by the defendant.
16. In my judgment, the defendant's application is misconceived and D demonstrates a failure to accept the decision of Mr Lock QC. The claim for judicial review is concerned with the lawfulness of the defendant's controversial age assessment procedures which culminated in the decisions of 15 May 2020, 26 June 2020 and 23 October 2020. The only evidence to be considered in the judicial review is the evidence which was before the decision-makers at the relevant time. The court will not be undertaking its E own age assessment. Thus, fresh expert evidence will not be relevant to the exercise the court has to undertake.
17. As the claimant indicates in the statement of facts and grounds, depending upon the outcome of the judicial review and any further assessment by the defendant there may, at some later stage, be a fact-finding hearing, in which case the claim would be likely to be transferred from the Administrative Court to the Upper Tribunal, in accordance with common F practice, as it is better equipped to undertake a fact-finding exercise. The Upper Tribunal also has considerable experience of dental evidence and the concerns about the reliability of such evidence (see R (ZM) v Croydon London Borough Council [2017] Imm AR 459; R (AS) v Kent County Council [2017] UKUT 446 (IAC)). However, because of the way in which the defendant has conducted itself over the past year, this claim is not at that G stage now. If, as Ms Rowlands suggests, expert evidence may be relevant to the question of relief, if the claimant succeeds in its judicial review, then that is a matter to be determined by the judge at the substantive hearing.
18. For all those reasons, the application is refused.