CJ, R (on the application of) v Cardiff County Council

In a disputed age case under the Children Act 1989, the court determines the claimant’s age as a question of fact. The task is an assessment, but that does not exclude a firm conclusion based on credibility, documentary evidence and the balance of probabilities. A local authority’s assessment is not conclusive. Documentary evidence carries no presumption of authenticity and must be evaluated by reference to its nature, provenance, timing and consistency with the other evidence. In judicial review proceedings, where the claimant asserts that a statutory duty was owed because he was a child, the claimant bears the burden of showing that he was under 18 when the duty arose. The claim failed because the claimant’s evidence and documents did not establish that he was under 18 on arrival in the United Kingdom.

The claimant, an Afghan national, claimed to have been born on 20 September 1993 and to have arrived in the United Kingdom aged 14. Cardiff County Council initially treated him as a child, later assessed him as an adult, and ultimately decided on 25 August 2009 that he was over 18. He challenged that decision by judicial review.

The court had to determine for itself whether the claimant was a child when he arrived and, if so, his date of birth for the purposes of duties under the Children Act 1989. The dispute principally concerned the claimant’s credibility, the reliability of documents obtained from Iran, and the weight to be given to age assessments, expert evidence and observations of his appearance and conduct.

1. Outcome. The claim was dismissed. The court was not persuaded that CJ was under 18 when he arrived in the United Kingdom and found that he was then, and remained, over 20.
2. Following R (A) v London Borough of Croydon [2009] UKSC 8, the question whether a person is a child for the purposes of the Children Act 1989 is a question of fact for the court on a judicial review challenge. The court must reach its own conclusion rather than review the local authority’s decision only on traditional public law grounds.
3. The court’s function is closer to assessment than to choosing mechanically between the parties’ positions. Nonetheless, assessment does not exhaust the court’s fact-finding task. Where credibility and alleged false documentation create a substantial age gap, the court may need to make a firm choice using the burden and standard of proof. The local authority’s assessment approach must therefore be applied with appropriate qualification to the court’s judicial fact-finding role, following R (MC) v Liverpool City Council [2010] EWHC 2211 (Admin) and R (B) v Merton LBC [2003] EWHC 1689 (Admin).
4. The claimant bore the burden of showing that he was or had been under 18 when he asserted that a statutory duty was owed to him. That followed both from the nature of judicial review and from the fact that he asserted the factual foundation of the duty. The position could differ where an authority relied on a factual condition to justify exercising a power.
5. The documents produced by the claimant were assessed with the other evidence. They carried no presumption of authenticity. Applying the approach in Tanveer Ahmed v SSHD [2002] Imm AR 318, the court considered their nature, provenance, timing, background evidence and consistency with the claimant’s account. The documents were insufficiently reliable to overcome the serious credibility concerns.
6. The claimant’s oral evidence, the circumstances of his journey, inconsistencies concerning work and money, and the observations of social workers, foster carers and hospital staff supported the conclusion that he was an adult. His hospital admission that he was born in 1988 was given little weight because of the circumstances in which it was made, but the decision did not depend on it.