A, R (on the application of) v London Borough of Croydon  UKSC 8 (26 November 2009)
The difficulty in determining age has become prominent as a consequence of the increased movement of children around the world, and specifically the increased migration of unaccompanied young people. It is an issue of particular significance, for a number of reasons. States often have – or at least, ought to have – different policies and procedures in place in relation to the treatment of asylum seekers who are children. These may relate, for example, to the provision of guardianship, the provision of legal aid, conditions of any ‘detention’, the substantive consideration of whether the asylum seeker satisfies the requisite test (ie the refugee definition), or access to particular social entitlements (housing, welfare, education etc).
A recent decision of the newly constituted United Kingdom Supreme Court considers the role of the court in determining a young person’s age in the asylum context. Specifically, the Court was required to consider whether United Kingdom law required that, in cases where a young person’s age could not be resolved through administrative processes, the court should make the final determination.
The decision arose out of a series of cases where young people had been denied accommodation under s 20(1) of the Children Act 1989 (UK), as a consequence of a contested age determination. Section 20(1) reads as follows:
(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
In total, there were seven separate claims, however the Court only factually addressed the two lead claims: A and M.
A arrived in the United Kingdom and claimed asylum in 2007. On arrival he asserted that he was fifteen and a half, however the immigration officer considered that he was eighteen and referred him for an age assessment. He was interviewed by two social workers who assessed him as an adult. He was subsequently treated as such. Shortly afterwards, his solicitors produced a copy of his birth certificate, and arranged for an examination by a paediatrician. Both the birth certificate and the examination supported the fact that A was fifteen and a half. Notwithstanding these findings, a decision was made that A was not entitled to accommodation under s 20(1) of the Children Act 1989 (UK).
M arrived in the United Kingdom and claimed asylum in 2006. He asserted that he was just under seventeen, however his age was also disputed and he was referred for an age assessment by two social workers who concluded that he was over eighteen. Once again a paediatrician’s report was obtained, which concluded that he was under eighteen.
For the purposes of the appeal to the Supreme Court, the three issues for consideration where:
(i) whether, as a matter of statutory construction, the duty imposed by s 20(1) is owed only to a person who appears to the local authority to be a child, so that the authority’s decision can only be challenged on ‘Wednesbury’ principles, or whether it is owed to any person who is in fact a child, so that the court may determine the issue on the balance of probabilities;
(ii) whether the issue ‘child or not’ is a question of ‘precedent’ or ‘jurisdictional’ fact to be decided by a court on the balance of probabilities; and
(iii) whether s 20(1) gives rise to a ‘civil right’ for the purpose of art 6(1) of the European Convention on Human Rights (the right to a fair hearing) and, if so, whether the determination of age by social workers subject to judicial review on ‘Wednesbury’ principles is sufficient to comply with the requirement that the matter be determined by a fair hearing before an independent and impartial tribunal.
The appellants submitted that, in cases of dispute, the court must decide whether a person is a child on the balance of probabilities. The respondent local authorities, supported by the Home Secretary, submitted that the authority must decide the matter, subject only to judicial review (on the ordinary bases).
The lead judgment was delivered by Lady Hale. The case was ultimately disposed of by way of determination of the first issue (issue (i)), however the Court briefly commented on issues (ii) and (iii) (these have not been addressed in this note).
The Court drew a distinction between the use of the terms ‘child’ and ‘child in need’ in s 20(1) of the Children Act 1989. As regards ‘child in need’ the Court stated (at ):
The question whether a child is ‘in need’ requires a number of different value judgments…Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court 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 court 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.
While the question of whether a child is ‘in need’ requires a number of different value judgments (although, in the context of child asylum seekers see the comment of Lord Hope noted further below), the Court considered that the term ‘child’ was objective, allowing for a right or wrong answer. The Court stated (at ):
But the question whether a person is a ‘child’ is a different kind of question. There is a right or 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.
On this basis, the Court allowed the appeals, the result being that if live issues remain about the age of a person seeking accommodation under s 20(1) of the Children Act 1989, then the court will ‘have to determine where the truth lies on the evidence available’ (at ).
The decision of the Supreme Court provides an illustration of the need to provide sufficiently tailored protection for children seeking asylum. On this point, an aside from Lord Hope strikes with some resonance (at ):
The question whether the applicant is a child ‘in need’ must then be for the social worker to deal with. But it is very hard to see how an unaccompanied child who is an asylum seeker could be otherwise than in need.
Notwithstanding the fact that approximately 42% of the world’s refugees are under the age of 18 (at current estimates, this equates to approximately 7 million children), States have been remarkably latent in the development of policies specific to children. On 27 October 2009, the Special Rapporteur on the human rights of migrants, Mr Jorge Bustamante, presented his latest report to the General Assembly at United Nations Headquarters in New York. That report focused on the protection of children in the context of migration. In his report, Mr Bustamante identified a ‘protection gap’ deriving from a lack of specific provisions on children in migration laws, policies and programs: ‘Most migration laws do not reflect a child rights perspective, nor do they have specific provisions relating to children’.
There are some exceptions: the United Kingdom’s policies regarding the provision of accommodation to children under s 20(1) of the Children Act 1989 is one. But as this case illustrates, even where child specific policies are implemented, children are faced with an additional hurdle to access those entitlements. In circumstances where age is very much a construct of the developed world, and where children have often fled with little or no thought to obtaining documentary evidence of their age, this hurdle may in many cases prove insurmountable. The United Kingdom has attempted to deal with these difficulties by developing a holistic age determination system carried out by social services. Both Australia and the United States often still rely on one-dimensional physical tests (for example wrist x-rays), despite the fact that these have proven unreliable (and can carry radiation risks).
Whatever the means adopted for determining age (although, in my view, the United Kingdom approach is clearly preferable), it seems entirely appropriate – particularly considering the specific benefits that may (or at least ought) flow from status as a child asylum seeker – that recourse is available to a court for a final determination. In finding such, the decision of the Supreme Court is to be applauded.
The decision is available at http://www.bailii.org/uk/cases/UKSC/2009/8.html.
Jason Pobjoy, PhD candidate, University of Cambridge