TS v London Borough of Croydon

In a disputed-age judicial review, the court must determine as a question of fact whether the claimant was under 18. The court must reach its own decision on the balance of probabilities, without imposing a legal burden or presumption on either party. The assessment is necessarily holistic. It may take account of credibility, consistency, demeanour, maturity, physical development, personal history and the evidence of professionals, while recognising the limits of scientific testing and cultural differences. A local authority’s assessment must meet minimum standards of inquiry and fairness, but the court is not confined to reviewing that assessment on ordinary irrationality principles. The decisive question is the overall weight of the available evidence.

TS, an Afghan asylum seeker, challenged Croydon’s determination that he was born on 1 January 1996 and its alleged failure to provide appropriate full-time education. The judicial review also raised duties under the Children Act 1989 and the Education Act 1996, and an allegation of indirect racial discrimination. The parties accepted that the age determination was likely to resolve the remaining issues.

The court heard evidence from TS, social workers instructed by Croydon, independent social workers instructed for TS, his social worker and his foster carer. The central issue was TS’s age on the balance of probabilities.

1. The court determined TS’s age for itself. Whether a person is a child is a question of fact with one correct answer. The court’s task was inquisitorial and supervisory, but neither party bore a legal burden of proof and no presumption favoured either side. The court decided the issue on the balance of probabilities.

2. The local authority’s assessment had to satisfy minimum standards of inquiry and fairness. The process should not be judicialised, but should ordinarily involve an explanation of its purpose, questions about background and history, consideration of credibility and relevant cultural matters, an opportunity to answer adverse provisional views, and reasons for the conclusion. The assessment was not required to be based on medical evidence.

3. The court approached the evidence holistically. There was no reliable anthropometric, medical or scientific test determining whether a person was over or under 18. Physical appearance and behaviour had to be considered with credibility, personal history, cultural background and the possibility of coaching. The listed factors were not exhaustive.

4. The court preferred the evidence of Croydon’s social workers, supported by TS’s social worker, to that of the independent assessors. It considered that TS had materially altered parts of his account and behaviour to establish the lowest possible age, and that his sustained maturity, independence, composure and ability to manage his affairs were inconsistent with the younger ages advanced. Physical appearance was given little weight because it was consistent with all three proposed ages.

5. On the balance of probabilities, TS was 16 years and 7 months old, with a notional date of birth of 1 January 1996. The judgment therefore resolved the central age issue in favour of Croydon’s assessment.

Not stated in the judgment.