CJ, R (On the Application Of) v Cardiff City Council

When a court must decide whether a person was a child for the purposes of the Children Act 1989, age is an objective precedent fact. The court must determine that fact on the balance of probabilities. Neither the claimant nor the local authority bears a legal burden of proving it.

This approach reflects the court’s inquisitorial role when supervising the limits of a public authority’s statutory jurisdiction. It does not create a presumption in favour of childhood. The evidence may require sympathetic assessment because an unaccompanied claimant may lack original identity documents, but evidential sensitivity is distinct from a legal burden of proof. Whether this approach applies under another statutory scheme depends upon the construction of that scheme.

The appellant, an Afghan national who entered the United Kingdom illegally, claimed that he had been under 18 on arrival and was therefore owed duties by Cardiff City Council under the Children Act 1989. The council assessed him as an adult.

Following a fact-finding hearing, Ouseley J found that the appellant had been over 18 and dismissed his judicial review claim. He also held that the appellant bore the burden of proving that he had been a child.

The appellant appealed with the judge’s permission. The central issue was whether a legal burden of proof applies when the court determines age as a precedent fact governing a local authority’s powers and duties.

1. The appeal was dismissed unanimously. Pitchford LJ delivered the leading judgment. Lloyd Jones J and Laws LJ agreed.

2. Whether a claimant is a child for the purposes of the Children Act 1989 is an objective question of precedent fact. In accordance with R (A and M) v Croydon and Lambert Borough Councils [2009] UKSC 8, it ultimately falls to the court rather than the local authority to decide that question. This differs from an evaluative decision about whether a child is “in need”, which remains reviewable on ordinary judicial review principles.

3. The High Court’s supervision of the statutory limits upon an inferior tribunal or public body serves the rule of law and is not determined by the private interests of the parties. Its inquiry into the precedent fact is inquisitorial. It must decide on the balance of probabilities whether the claimant was a child, without asking whether either party has discharged a legal burden of proof.

4. This approach creates no presumption that a claimant is a child and no requirement that doubt be resolved in the claimant’s favour. The court may nevertheless assess the evidence sympathetically. It may be inappropriate to expect conclusive proof of age from an unaccompanied person who arrived without original identity documents. Evidential sensitivity and a legal burden of proof are distinct matters.

5. The absence of a legal burden was confined to the particular age decision under the Children Act 1989. It did not establish that burdens of proof are inapplicable whenever an individual claims a statutory benefit. The language and scheme of the particular statute govern whether a burden applies and where it rests.

6. Ouseley J had therefore erred by placing the burden upon the appellant. The error did not undermine the result. His findings rejecting the appellant’s account, documents and expert evidence, while accepting the council social worker’s appraisal, admitted only the conclusion that the appellant had been over 18 on arrival. The judicial review claim consequently remained dismissed.

1. Court of Appeal (Civil Division): The court dismissed the appeal unanimously. It held that Ouseley J had applied the wrong approach to the burden of proof, but that his factual findings inevitably established that the appellant had been over 18.
2. Administrative Court, Queen’s Bench Division: Ouseley J found that the appellant had not been under 18 when he entered the United Kingdom and dismissed the judicial review claim. The judge granted permission to appeal.