A v London Borough of Croydon, Court of Appeal - Administrative Court, May 08, 2009, [2009] EWHC 939 (Admin)

Reporting Judge: [2009] EWHC 939 (Admin)

President: A v London Borough of Croydon

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Extract

A v London Borough of Croydon, Court of Appeal - Administrative Court, May 08, 2009, [2009] EWHC 939 (Admin)

Neutral Citation Number: [2009] EWHC 939 (Admin)

Case No: CO/2334/2008

CO/9557/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date:8 May 2009

Before :

Mr Justice Collins

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Between :

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(1) Mr Ian Wise & Mr Azeem Suterwalla (instructed by Harter & Loveless) for the First Claimant

Mr Bryan McGuire & Ms Peggy Etiebet (instructed by the Solicitor to the Council) for the Defendant

Mr James Strachan & Ms Deok Joo Rhee (instructed by the Treasury Solicitor) for the Interested Party

(2) Mr Gavin Millar Q.C. & Mr Graham Denholm (instructed by Bennett Wilkins) for the Second Claimant

For the First Defendant; as in (1) for the Interested Party

Mr Charles Béar Q.C. & Mr Jon Holbrook (instructed by Kent County Council) for the Second Defendant

Hearing dates: 10 - 13 March 2009

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Judgment

Mr Justice COLLINS :

1. A number of individuals arrive in this country seeking asylum and claiming to be under 18. Most are males and have entered or have sought to enter by clandestine means. They are referred to as Unaccompanied Asylum Seeking Children (UASC). That description includes those who assert that they are under 18. Many who travel from countries where they allege they are being persecuted such as Afghanistan or Iraq will have been assisted by agents and in any event the advantages of persuading the authorities that they are under 18 are well-known. Those advantages include the automatic grant of leave to remain until aged 18 coupled with the inability to return to Member States of the European Union if the individual would otherwise be returnable in accordance with the Dublin Regulations. In addition, as children they will usually be entitled to the care and accommodation which a local authority is obliged to provide to children in need. Thus the assessment of their age is most important.

2. These two claims come before me in order to enable guidance to be given on the proper approach to be applied by the Secretary of State or local authorities who, having made their assessment of age, are presented with a report from a paediatrician whose opinion is that their assessment was wrong. For obvious reasons, this arises when the assessment made was that the individual was over 18. The opinion obtained from the paediatrician asserts that in the doctor's view he (or in rare instances she) is under 18. I was told that there were more than 70 claims for judicial review challenging the refusal of the relevant authority to follow the paediatrician's opinion or at least to accept that it raises a doubt and the benefit of that doubt should be given to the claimant in question. I have had full argument based on what counsel and I are satisfied is all relevant material. Thus this judgment should be treated as determining the correct approach for the court to adopt in age assessment cases. Naturally, the individual circumstances of a particular case may show, at least arguably, that the assessment was in all the circumstances flawed as a matter of law. But, for reasons which will become apparent, that is likely to turn on the reasons given or the procedures adopted by the decision maker rather than on the subsequent opinion of a paediatrician.

3. A and a number of other claimants asserted that the absence of any right to make representations on the facts or any appeal breached Article 6 of the ECHR. It was said, as part of the grounds, that the court could not comply with Article 6 unless it treated the assessment of age as a precedent fact which it had to determine. On 14 April 2008 Holman J directed that A and a case entitled M v Lambeth (CO/2130/2007) should be heard as lead cases to determine the Article 6 ground as a preliminary issue. On 20 June 2008, Bennett J decided the issue against the claimants: see [2008] 2 FLR 1026. There was no breach of Article 6 and the court was not required to treat the issue as precedent fact. Bennett J was asked to consider the evidential value of the experts' reports but declined to do so. Holman J had said that the trial judge could, if he considered it proper to do so, decide an issue raised by Lambeth, formulated thus:-

``For the purpose of assessing whether a child is a child, is paediatric evidence of the sort produced by Dr Michie and/or Dr Birch in these cases scientifically ill-founded and of no evidential value?''

For what seems to me to have been entirely correct reasons Bennett J decided that the issue was not appropriate for a preliminary hearing which focused on procedure rather ...

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