AS v London Borough of Croydon

In a disputed local-authority age assessment under the Children Act 1989, whether a person is a child is an objective precedent fact for the court, determined on the balance of probabilities within judicial review. The assessment is evidence rather than the reviewable decision itself. A fair fact-finding procedure may require disclosure and cross-examination. Age assessments must meet Merton-compliant standards, including sensitive holistic interviewing, a proper opportunity to answer provisional adverse findings, and reasoned, internally consistent conclusions. Materially non-compliant assessments may be quashed and the court may declare the claimant’s date of birth. In the circumstances, the declaration was in rem and a protected-party settlement required independent court approval.

AS, an unaccompanied Afghan minor represented by the Official Solicitor, challenged age assessments made by the London Borough of Croydon. The substantive judicial review claim was compromised by an agreed order, leaving the court to determine whether the assessments should be quashed, whether a declaration of the claimant’s date of birth should be binding for all purposes as a judgment in rem, and the appropriate costs order. The issues were determined on written submissions by consent.

1. Age as a precedent fact. The court applied the approach in A v London Borough of Croydon [2009] 1 WLR 2557. Whether a person is a child for purposes of statutory duties under the Children Act 1989 is an objective question of fact determining the local authority’s jurisdiction. If disputed, it must be decided by the court on the balance of probabilities within the judicial-review proceedings. An age assessment is evidence used in making that determination, not itself the reviewable decision. The court must determine the precise age or date of birth, rather than merely whether the claimant is presently a child.
2. Procedure and assessment standards. Fairness ordinarily requires an adapted trial process, including disclosure and cross-examination where necessary. The court applied the standards identified in B v Merton LBC [2003] EWHC 1689 (Admin) and approved in FZ v Croydon LBC [2011] EWCA Civ 59. These require an appropriate adult, a proper explanation of the assessment, skilled interpretation, a structured and non-stressful interview, attention to trauma and culture, a holistic history, trained assessors, open and non-leading questions, a fair opportunity to answer adverse provisional findings, and reasoned and internally consistent conclusions.
3. Remedies and settlement. The defendant’s assessments were materially non-compliant and unreliable. They were quashed, and the court declared that the claimant was born on 18 March 1995. Under CPR 21.10, the proposed settlement required independent court approval because the claimant was a protected party. The court independently assessed the merits and accepted the agreed basis for settlement.
4. Judgment in rem. Applying the principles in PM v Hertfordshire County Council [2010] EWHC 2056 (Admin), Pattni v Ali [2006] UKPC 51 and Wakefield Corporation v Cooke [1904] AC 31, an in rem judgment requires a substantive, final determination by a court with jurisdiction, statutory authority expressed or necessarily implied, and a public interest in binding the world. Section 20 of the Children Act supplied that jurisdiction by necessary implication. The declaration therefore bound all persons for purposes of the Act and was to state expressly that it was in rem.
5. Costs. The claimant had obtained the relief sought, and the conventional approach in Boxall v London Borough of Waltham Forest was inapplicable to this fact-sensitive age assessment claim. The claimant was awarded the entirety of his costs, subject to detailed assessment.

The proceedings were commenced in the Administrative Court in September 2009. Permission was granted in November 2010. The parties subsequently agreed a settlement, which the court independently approved, leaving the issues of quashing, the effect of the declaration and costs for determination.