F, R (on the application of) v London Borough of Southwark

In disputed-age judicial reviews, the court must determine the factual issue of age. If the claimant was a child on the relevant date, the court should ordinarily determine the claimant’s actual age or date of birth, since that may determine the duration and nature of statutory services.

Permission remains an important filter. The appropriate question is whether there is a realistic prospect, or arguable case, that a fact-finding hearing will reach a materially younger age assessment. The civil standard is the balance of probabilities. Medical evidence cannot routinely be disregarded, although its weight remains for the fact-finding judge. Local authorities relying on social-worker assessments must produce the relevant witnesses for cross-examination if required.

The judgment concerned directions and case-management issues in five judicial reviews challenging local-authority age assessments of persons claiming to be children. The cases followed the Supreme Court’s judgment in A v London Borough of Croydon and M v London Borough of Lambeth, which clarified that age disputes are challenged by judicial review but involve a factual determination by the court.

The court considered the scope of the fact-finding exercise, permission, proof, medical evidence, witness attendance, claimant participation, hearing arrangements and case preparation. The central issues were whether the court should determine only whether a claimant was a child, or also the claimant’s actual age or date of birth, and how future hearings should be managed.

1. Nature of the issue. The Supreme Court’s approach means that a local authority must first assess age, but a challenge is brought by judicial review and the essential issue at the substantive hearing is one of pure fact. Where the court finds that the claimant was a child on the relevant date, it should also determine the claimant’s actual age or date of birth. Leaving that question to the local authority would create the risk of repeated decisions and further judicial review, particularly because services may continue after the age of 18.
2. Permission. These claims remain judicial-review proceedings and permission is required. A rolled-up hearing should not become routine. In a case where the authority assessed the claimant as already over 18, the question is whether there is a realistic prospect, or arguable case, that a fact-finding hearing will conclude that the claimant was materially younger and was a child on the relevant date. Where the authority accepted that the claimant was under 18 but assessed an older age, the question is whether there is a realistic prospect, or arguable case, of a materially younger age assessment. Ordinary discretionary grounds for refusing permission remain available.
3. Proof and evidence. The standard of proof is the balance of probabilities. The judge at the final hearing must determine any issue concerning the evidential burden; it is not suitable for advance determination at a directions hearing. Medical reports, including paediatric evidence, cannot routinely be disregarded. They may be admitted and relied on, while their reliability and weight remain matters for the fact-finding hearing.
4. Conduct of hearings. If a local authority relies on social-worker assessments, the social workers must attend for cross-examination if properly required. The extent of the claimant’s oral evidence, cross-examination, attendance, use of video link and any private or chamber hearing is ordinarily for the final judge’s discretion, having regard to the individual circumstances.
5. Case management. Hearings should be planned as composite fact-finding exercises, including preparation and an ex tempore judgment. Fresh, concise and organised bundles should be prepared. A generally truncated procedure could not be imposed through these directions and would require appropriate Practice Direction or equivalent judicial authorisation.

Directions were given in each of the five cases, with case-specific provisions concerning evidence, attendance and hearing arrangements.

The judgment records that the five cases were listed for directions after the Supreme Court’s judgment in A v London Borough of Croydon and M v London Borough of Lambeth. No appellate history for the present Southwark claim is stated.