Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 98
P268/11	OPINION OF LORD STEWART in the petition of T L [Assisted Person] Petitioner; for Judicial Review of an Age Assessment by Angus Council dated 24 January 2011 that the Petitioner is over eighteen years of age Respondents: ­­­­­­­­­­­­­­­­­________________

Petitioner: McGuire, Advocate; Drummond Miller LLP, Solicitors, for Bruce Short & Co, Solicitors, Dundee

First Respondent: Ross, Advocate; Solicitor for the City of Edinburgh Council on behalf of Angus Council

Second Respondent: Ms Williamson; Simpson & Marwick, Solicitors, for the Glasgow City Council

7^th June 2011

[1] These proceedings are for judicial review of an assessment by a local authority of the Petitioner's age. The assessment is to the effect that the Petitioner is over eighteen years of age. The petition for review was presented on 8 March 2011. The petition seeks reduction of the age assessment, declarator that the Petitioner is aged fifteen or alternatively that he is under eighteen years of age and an order ad interim that the Petitioner be treated as having been born on 7 October 1995 or alternatively that he is under eighteen years of age. A first hearing has been fixed for 24 June 2011.

[2] On 13 May 2011 I heard an application made by motion on behalf of the Petitioner. The motion, after amendment at the bar to delete the alternative referred to in the previous paragraph, is for "an order ad interim to treat the Petitioner as having been born on 7 October 1995".

[3] The motion is opposed by the First Respondents, Angus Council, one of whose officers made the assessment, and by the Second Respondents, Glasgow City Council, in whose council area the Petitioner currently resides. The Second Respondents would incur obligations to the Petitioner were he in effect declared to be a "child" within the meaning of the Children (Scotland) Act 1995.

[4] Having heard submissions by counsel for all parties and having made avizandum I have formed the opinion that the application should be refused in hoc statu. I also take the view that the proceedings ought to be served on the Advocate General representing the Secretary of State for the Home Department and on the Lord Advocate for the public interest; and that the case should be put out by Order in advance of the first hearing to discuss procedure at the first hearing.

Background
[5] On 29 December 2010 the master of a vessel lately arrived at Montrose from Morocco handed the Petitioner to the UK Border Agency. The Petitioner was said to be a stowaway. The Petitioner landed without papers. He claimed to be a fifteen year old Moroccan.

[6] The UK Border Agency requested the First Respondents to assist in accommodating the Petitioner. The First Respondents did so and accommodated the Petitioner in the Young People's Unit, Kinnaird Street, Arbroath.

[7] Ms Rinku Sharma, a social worker employed by the First Respondents, undertook an assessment of the Petitioner's age. The assessment is reported on a form headed "Age Assessment of Asylum Seeking Child" [Production No 6/1]. The assessment is dated 24 January 2011. The assessment is substantially based on interviews with the Petitioner, through a Spanish-speaking interpreter, on 30 December 2010 and 7 January 2011.

[8] It is said that "a telephone interpreter was used". Elsewhere reference is made to "the telephone interview". It is not clear exactly how the interviews were conducted. It is not clear whether two social workers were involved throughout. The petition does not provide clarification.

[9] The assessment concludes that the Petitioner is "18+". The "Age Assessment Form" states among other things: "Self care skills are those usually associated with a young adult and are performed by you without any form of prompting being required" [Production No 6/1].

[10] At section 7 of the assessment reference is made to the opinion of Dr Dafydd Evans, honorary consultant in paediatric dentistry, Dundee Dental Hospital. On 14 January 2011 the Petitioner attended for treatment at the dental hospital accompanied by the First Respondents' Children's Rights Officer. Treatment was provided by Dr Evans. Radiographs were taken. The consultant gave a statement that: "There is nothing inconsistent visible on the radiographs of TL's teeth with his stated age of 15 years" [Production No 6/2].

[11] In oral submissions counsel for the Petitioner told me that, in February 2011, the Petitioner was transferred to the Immigration Detention Centre at Dungavel. He was bailed from detention and is currently accommodated in self-catering accommodation provided by the National Asylum Support Service in Glasgow.

[12] A letter from the Scottish Guardianship Service, Glasgow, dated 7 April 2011 [No 6/4 of Process] includes the following:

"I can confirm that the Scottish Guardianship Service received a verbal referral for [T L] from the Children's Rights Officer... at Angus Council on 13.01.11.

I have been acting as guardian of [T L] since he was referred to the Scottish Guardianship Service. I have met with [T L] frequently throughout this period due to the high level of support that he requires to meet his needs...

[T L] has struggled to live independently and has not been eating a healthy varied diet due to his lack of cooking skills...

I have found [T L] very confused and bewildered... [T L]'s behaviour is very similar to what I have experienced and witnessed with other young people I have worked with."

[13] In an immigration context the significance of the age issue is that the Secretary of State usually grants discretionary leave to remain to persons considered to be under the age of seventeen and a half years. Counsel told me that the Petitioner had made an asylum claim that had been refused. The Reasons for Refusal Letter has not been produced in this process. I assume that the Border Agency has treated the Petitioner as an adult.

Submissions for the Petitioner
[14] Mr McGuire, counsel for the Petitioner, submitted that the test for an interim order is (1) whether there is a prima facie case and (2) whether the balance of convenience favours regulating the situation ad interim in the manner sought [Callison v Scottish Ministers (unreported), Outer House, Lord Drummond Young, 25 June 2004 at § 12]. This proposition is not contested.

[15] As to whether there is a prima facie case, the petition avers under reference to R (FZ) v Croydon LBC [2011] EWCA Civ 59 (1 Feb 2011) that a local authority age assessment may be challenged on traditional judicial review grounds or on the basis that the assessment is wrong as a matter of fact. In support of the motion counsel argued only that there is a prima facie case as a matter of fact [R (A) v Croydon LBC (SC) [2009] 1 WLR 2557].

[16] Counsel continued to the effect that a prima facie case is constituted by the averment that the Petitioner's date of birth is 7 October 1995 supported by (a) the Petitioner's own repeated assertions to this effect, (b) the statement of Dr Evans, Dundee Dental Hospital, and (c) the letter from the Scottish Guardianship Service.

[17] Counsel submitted that the balance of convenience favours the Petitioner. The Petitioner has already been accommodated in children's accommodation by the First Respondents without any great problems; he is suffering as a result of being treated as an adult in unsupervised, self-catering accommodation; were he to be treated as "a child", the Second Respondents would have a duty to look after him, to promote his welfare and to provide accommodation for him in terms of the Children (Scotland) Act 1995 ss. 17 and 25; and the issue will not be resolved by the Court for at least several months - although a first hearing has been fixed for 24 June, proof may well be required at a continued hearing, it is likely that the judgement will be reserved and an appeal could follow.

Submissions for the Respondents

[18] Mr Ross, counsel for the First Respondents, submitted that (1) the application is incompetent; (2) there is no prima facie case; and (3) the balance of convenience does not favour the Petitioner. His submissions were adopted and added to by Ms Williamson, counsel for the Second Respondents.

[19] According to counsel the motion as framed effectively seeks an interim declarator: it is doubtful whether the Court can pronounce a declarator ad interim [A W Bradley and C M G Himsworth, "Administrative Law", Stair Memorial Encyclopaedia (no date), 163; Rt Hon the Lord Clyde and D J Edwards, Judicial Review (2000), § 24.12]. Callison was about the special situation of proceedings against the Crown: but in any event to grant the order sought would be to prejudge the merits [Callison at § 14]. Further, the order sought is unacceptably imprecise - who is to treat the Petitioner as being "a child" and for what purposes [Judicial Review, § 24.14].

[20] Under reference to R (FZ) v Croydon LBC [2011] EWCA Civ 59 (1 Feb 2011) counsel submitted that the test for a prima facie case is whether there is a reasonable prospect of success - counsel did not offer a definition of "reasonable prospect" in this context, suggesting that what is reasonable is a question of circumstances in each case.

[21] The submission continued to the effect that it is impossible to be satisfied that there is a prima facie case: articles 6.7, 6.8 and 6.9 of the petition fail to make categorical averments about alleged failures in the assessment process, prefacing each alleged omission with the words "it does not appear that" or similar; the failure averred in article 6.10 to follow a "suggested" assessment process cannot amount to "irrationality"; and the averments in articles 6.11 and 6.12 about the allegedly positive effect of Dr Evans' statement as to the Petitioner's age and the alleged failure of the assessment to take the dentist's statement into account are factually wrong. In order to justify the order sought the Court must be persuaded not only that there is a reasonable prospect of demonstrating the assessment process to have been flawed, but also that there is a reasonable prospect of establishing that the Petitioner was born on the specific date 7 October 1995.

[22] Counsel drew my attention to the variety of birth dates and ages evidenced by the material. The Petitioner avers that his date of birth is 7 October 1995, making him fifteen; he apparently told the age assessor on one occasion that he was seventeen [Production No 6/1, page 1]; the summary complaint of the Procurator Fiscal, Glasgow, against the Petitioner charging him with breach of the peace and assault, libels his date of birth as 7 October 1992, making him eighteen [Production No 7/1]; the UK Border Agency "Notification of Temporary Admission" dated 30 December 2010, produced by the Petitioner, records the Petitioner's date of birth as 1 February 1990, making him 21 [Production No 6/3].

[23] If the issue is accommodation - and, counsel said, this is not clear from the petition - the issue is effectively about accommodating the Petitioner with approved foster parents or in a young persons' facility registered with the Care Commission. In this context the balance of convenience is against the Petitioner. Child protection issues arise. The age assessment shows that the Petitioner is sexually active. He claims to have had sex with females, including minors. His behaviour in the Young People's Unit became challenging and inappropriate [Age Assessment, Production No 6/1, pages 4, 7 and 8]. He has recently been charged with a breach of the peace and assault by brandishing knives in public [Summary Complaint, Production No 7/1].

[24] Counsel questioned why there was a newly-discovered urgency. The age assessment had been made in January and the Petitioner left the Young People's Unit in February. The first hearing was now only a matter of weeks away. The only recent change was the fact that the Petitioner had been charged with criminal offences: was this the reason he now wanted to be treated as a child?

[25] Counsel for the First Respondents asked: have efforts been made to obtain a report from Dr Evans; and have efforts been made to get documents from Morocco? There were other ways of supporting the Petitioner than by treating him as a child. The solution urged by the Petitioner presents problems that outweigh the advantages contended for.

[26] Counsel for the Second Respondents observed that the letter from the Scottish Guardianship Service [No 6/4 of Process] refers to a number of sources of support for the Petitioner. The Court had not been told why the available support was insufficient, or why being treated as a child would offer the Petitioner greater support than was presently available to him. If the Petitioner were really struggling to cope it might have been expected that his plight would have been brought to the attention of the UK Border Agency. It is not appropriate that the Second Respondents should suddenly be required to treat the Petitioner as a child, with all the statutory responsibilities entailed for them, without having had the opportunity of making their own age assessment.

[27] Counsel also pointed out that the outcome of R (FZ) v Croydon LBC was that the proceedings were ordered to be transferred from the Administrative Court to the Upper Tribunal. Counsel suggested that the same course might be appropriate in the present case.

Decision
[28] Unaccompanied asylum-seeking children [UASCs] pose a challenge for public authorities and the courts. On the one hand there are concerns about child trafficking and the victims of trafficking. On the other hand it is recognised that the incentives for asylum-seekers to be "children" are significant. In this context "children" are defined as persons under the age of eighteen years [United Nations Convention on the Rights of the Child Art. 1; Borders, Citizenship and Immigration Act 2009 s. 55; Children (Scotland) Act 1993 ss. 15 and 95(2)(a)].

[29] Children are entitled to full child services provided by local authorities. Even if found not to be entitled to asylum, UASCs are generally given discretionary leave to remain until the age of seventeen-and-a-half years, or until a period of three years has elapsed, whichever is sooner, unless there are "safe and adequate reception arrangements" in their country of origin. UASCs are as a rule not subject to detention for immigration purposes [C Mougne and A Gray, A new approach to age assessment of Unaccompanied and Separated Children: current practices and challenges in the UK (2010); [R (A) v Croydon LBC at §§ 4 and 5, per Baroness Hale of Richmond JSC].

[30] Age assessment is far from being an exact science. The margin of error associated with standard medical assessments is at least two years either way; and assessment is particularly difficult for the age range 15 to 20 [A v Croydon LBC [2009] EWHC 939 (Admin) (8 May 2009) at §§ 15-17].

[31] There is a developing jurisprudence. Two important strands of this development were not brought into play in the discussion that I heard. First, the United Nations Convention on the Rights of the Child [UNCRC] Art. 3.1 states:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

There are situations in which domestic legal effect is given to UNCRC Art. 3.1 [HS v Secretary of State for the Home Department [2010] CSIH 97 (16 Dec 2010); ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 Feb 2011)].

[32] Secondly, there is a basis for giving the benefit of the doubt to the would-be child. The UK Border Agency guidance "Processing an Asylum Application from a Child", at § 1.1, states:

"Where the age of the applicant (and their status as a child) is in doubt, reference should be made to the detailed guidance provided in the "Asylum Instruction on Assessing Age". Please note that where the person's age is in doubt he/she should be treated as a child unless and until a full age assessment shows him to be an adult."

If the objective is to comply with UNCRC - though clearly other objectives could be given priority - the guidance is logical in a situation where certainty is elusive. But the guidance begs the question: what is a "full age assessment"?

[33] As far as process is concerned, consensus has developed around the recommendations of Stanley Burnton J in R (B) v Merton LBC [2003] 4 All ER 280 [R (A) v Croydon LBC at § 6 per Baroness Hale of Richmond JSC; R (FZ) v Croydon LBC at §§ 3 and 8 per May PQBD]. These standards are referred to in the present petition at paragraph 6.

[34] Judicial notice has also been taken of the guidance issued by the London Boroughs of Croydon and Hillingdon, "Practice Guidelines for Age Assessment of Young Unaccompanied Asylum Seekers" (August 2005) [eg R (FZ) v Croydon LBC at § 8 per May PQBD]. The style of assessment form appended to the Croydon and Hillingdon guidance appears to have been used in the Petitioner's case [www.proceduresonline.com/hillingdon/childcare; Production No 6/1].

[35] The non-categorical criticisms made of the assessment process in the Petitioner's case are essentially to the effect that the process was not Merton-compliant: concerns about credibility were not put to the Petitioner; "adverse provisional conclusions" were not put to the Petitioner; "conclusions and reasons" were not put to the Petitioner, or so it is believed.

[36] The criticism made of the treatment of Dr Evans' statement is not, contrary to what counsel for the First Respondents might have suggested, that the statement is not recorded in the assessment form at the health section, section 7, which clearly it is: the criticism is that Dr Evans' statement has not been weighed in the analysis section, section 9 of the form, and clearly it has not.

[37] For the avoidance of doubt I am of the opinion that there may well be circumstances in which it is right to grant interim "age-deeming" orders for implement or interdict directed against particular parties for specific purposes. The problem in this case is that the interim order sought, because apparently directed against the whole world for all purposes, partakes of the nature of a declaratory order, something that is problematic. The proposed order has potentially very wide implications, criminal law and immigration implications included.

[38] Counsel for the Second Respondents submitted, and counsel for the Petitioner agreed, that the Secretary of State should be served with a copy of the petition so that she has an opportunity to make representations on matters relating to her interest in the matter. What about the Lord Advocate, for other aspects of the public interest? Counsel for the First Respondents may well be right that the interim application at this time - for an order that the Petitioner should be treated as having been born on a date that would make him under sixteen years of age - has something to do with the criminal proceedings.

[39] The practical effects of the order, as referred to in the petition, are clearly about the provision of accommodation by a local authority, either the First Respondents or the Second Respondents [petition, articles 6.6 and 7]. Even if the application were restricted to this purpose, there would in my view be difficulty as far as both Respondents are concerned.

[40] The First Respondents do not owe duties to a child who is not in their area; and I am not at all convinced that the Second Respondents could properly be required to provide accommodation, without having made their own age assessment of the Petitioner, simply on the basis that another authority's age assessment is allegedly flawed.

[41] Moving from the nature and terms of the interim order sought, I accept that taking the Petitioner's averments and the supporting documents at their highest, there is a prima facie case that he is a child: but the case is not nearly strong enough to be decisive without considering competing arguments on convenience.

[42] The status quo, as I understand it, is that the Petitioner is currently a failed asylum seeker. He has no right to be in the United Kingdom by virtue of the UK Border Agency determination referred to by counsel for the Petitioner, though not produced. That being his current status in law, there is some difficulty in making an order that will entitle him ad interim to a variety of benefits provided by public authorities.

[43] Even supposing the Petitioner's status to be doubtful, I am unconvinced that the balance of convenience favours treating him as a child for the only purpose explicitly mentioned, namely for the purpose of having him accommodated in children's accommodation. While it is important to try and ensure that children are not treated as adults it is also important to try and ensure that adults are not treated as children.

[44] Key Reform 4 of the Home Office recommendations referred to by Baroness Hale of Richmond JSC in R (A) at paragraph 7 is "Putting in place better procedures to assess age in order to ensure children and adults are not accommodated together" [Better Outcomes: the Way Forward, Improving the Care of Unaccompanied Asylum Seeking Children (2008), 11]. The document states that failing to detect those who lie about their age has serious consequences and continues:

"As well as representing a serious abuse of the asylum system it leads to adults being inappropriately accommodated with children and vice versa, with all the associated child protection risks that we are determined to minimise."

[45] Four months have passed since the Petitioner was assessed to be an adult and there will be a first hearing in about one month's time. The situation is not said to be one of emergency. Weighing all considerations I have come to the conclusion that the balance of convenience weighs heavily against granting the Petitioner's application on an interim basis at this time.

[46] I shall therefore refuse the motion in hoc statu, reserving all questions of expenses; I shall order the Petition to be served upon the Advocate General for Scotland and upon the Lord Advocate; and I shall appoint the case to call By Order about one week before the first hearing; parties should approach the Keeper forthwith to identify a suitable date.