Luton Borough Council v N & Anor

In care and residence proceedings, the court may determine a young person’s age on the balance of the evidence, including reliable medical evidence where it is sufficiently persuasive. A residence order cannot be made for a person over 16 unless the circumstances are exceptional under the Children Act 1989. The person’s wishes may carry decisive weight, particularly where they are mature, consistent and supported by powerful welfare considerations. Unusual facts do not necessarily constitute exceptional circumstances.

Luton Borough Council v N & Anor concerned care proceedings relating to a young person whose claimed age, identity and parentage were disputed. The local authority and the Children’s Guardian relied on medical and other evidence that she was 17, rather than 13 as claimed by the first respondent, who asserted that he was her father.

The court first determined her age. It then considered the first respondent’s application for a residence order, having regard to her settled placement, wishes, the history of physical and emotional harm, and the statutory restriction on orders for persons over 16. The central issues were whether the evidence established her age and whether the circumstances were exceptional enough to permit a residence order.

1. The court found, on the medical evidence and the surrounding records, that Rachelle was 17 years old. The report relied on objective and quantified measurements and was wholly convincing. A declaration of age was made.
2. Because she was over 16, the court could not make a residence order under section 9(7) of the Children Act 1989 unless the circumstances were exceptional. The unusual and troubling facts did not meet that threshold.
3. Rachelle’s wishes were strongly against living with the first respondent or seeing him. Given her age, settled placement, expressed views and the history of the first respondent’s physical and emotional conduct, her wishes carried the strongest weight and were decisive. Independent welfare considerations led to the same conclusion.
4. The first respondent’s application for a residence order was dismissed. The local authority was given leave to withdraw its application for a care order because of Rachelle’s age. The court approved the draft order.

First-instance decision. The judgment records earlier directions and hearings in the same proceedings but no prior appellate decision.