Y, R (on the application of) v London Borough of Hillingdon

In disputed age-assessment claims, the court must determine the claimant’s age for itself. The assessment requires a holistic evaluation of the claimant’s history, credibility, appearance, behaviour and other evidence. Physical appearance alone is generally insufficient, and dental evidence should receive proportionate weight, recognising its margins of error and ethnic variation.

The claimant bears the burden of showing that the claimed age attracts the relevant statutory entitlement, although exact proof of date of birth is unnecessary. Permission remains an important filter, and rolled-up hearings should not become routine. Duties to promote children’s welfare and co-operation do not, without more, create a duty to refer every suspected trafficking victim to a competent authority.

Y, who had been brought from Nigeria to the United Kingdom as a young child and kept in domestic servitude, challenged Hillingdon’s assessment that she was at least 19. The claim also challenged the absence of a referral to the UK Human Trafficking Centre and alleged breaches of article 8.

Following a fact-finding hearing, the central issues were Y’s true age, the proper weight of dental and credibility evidence, whether permission should be granted on the other claims, and whether the Children Act 1989 or the Trafficking Convention imposed a duty to make an individual referral.

1. Age assessment and permission. Where age is disputed, the court determines the fact of age for itself. Permission remains a substantive filter in judicial review. The question is whether there is a realistic prospect, or an arguable case, that a contested fact-finding hearing could establish that the claimant is younger than the local authority assessed. A rolled-up hearing should not routinely bypass that filter.
2. Fact-finding approach. The court applied the approach in R (on the application of B) v Merton London Borough Council that age should not generally be assessed from appearance alone. The decision-maker should consider background, family history, education, activities, credibility and the interaction between appearance, behaviour and the account given. The assessment should be holistic and culturally informed.
3. Burden of proof. The claimant bears the burden of proving that he or she was under 18 when the statutory duty is said to have arisen. This does not require proof of a precise date of birth. Where the evidence establishes only approximate age, the court may assign a presumed date of birth.
4. Evidence and result. Dental evidence was relevant but received modest weight because wisdom-tooth development is imprecise, ethnic variation exists, and exceptions occur. The court accepted Y’s evidence about the diary and concluded that she was born on 17 February 1993. Hillingdon’s assessment that she was at least 19 was quashed, and Y was declared to have been 16 when the assessment was made.
5. Other claims. Permission was refused on the trafficking-referral claim because it was academic, Hillingdon had never disputed that Y had been trafficked, and no legal duty to make an individual referral had been identified. Sections 10 and 11 of the Children Act 1989 required general arrangements for co-operation and welfare, not individual referrals. Permission was also refused on the article 8 claim because there was a proper basis to assess Y’s age and the assessment was not so flawed that conventional judicial review would have succeeded.
6. Hillingdon’s age decision was quashed. The parties were directed to consider consequential declarations or orders, and Hillingdon was expected to pay Y’s costs of the age challenge, subject to further directions.