AM, R (on the application of) v Solihull Borough Council

In a challenge to an age assessment under Children Act 1989, whether a person is a child is an objective question of fact for the court or tribunal. The tribunal must decide the issue on the evidence available and on the balance of probabilities. Neither party bears a legal burden of proving adulthood or childhood.

An unchallenged local-authority assessment remains operative. A challenged assessment does not lose all weight merely because judicial review permission has been granted. Evidence of physical appearance and a short interview will usually be of limited value. More weight may attach to reliable evidence gathered over time, including evidence of growth, education, ordinary interaction and credibility. Reports should identify the evidential range rather than allocate the benefit of doubt themselves.

AM, R (on the application of) v Solihull Borough Council concerned a claimant who said that he was born in 1994 and was therefore a child when he claimed asylum. Solihull Metropolitan Borough Council made two age assessments and, in the second, assigned him a nominal date of birth of 1 January 1992.

He brought judicial review proceedings challenging that assessment. The High Court granted permission and interim relief, then transferred the claim to the Upper Tribunal. The central issue was the claimant’s age and, consequently, whether he was entitled to local-authority services as a minor or former relevant child.

1. Claim dismissed. The Tribunal determined the claimant’s age for itself. It declared that he was born on 1 January 1990, so that he was not a minor when he entered the United Kingdom and was not entitled to services as a minor or former relevant child.
2. Following R (A) v Croydon LEC [2009] UKSC 8, the question whether a person is a child for section 20 of the Children Act 1989 is an objective jurisdictional fact. A local authority must assess age initially, but the court or tribunal must determine the truth if a live dispute remains.
3. The Tribunal applied the Court of Appeal’s approach that there is no legal burden on either side at the substantive hearing. It must decide, on the balance of probabilities, whether the claimant was a child at the material time. The local authority’s assessment remains effective unless and until the challenge succeeds; the grant of permission does not displace it.
4. The Tribunal held that most evidence of physical appearance, mental maturity and observations during a short interview has limited value. Evidence from sustained observation in ordinary life may assist. Reports prepared for the tribunal should expose the raw evidence, the realistic age range and the basis for selecting an age; they should not make a final choice merely by giving the claimant the benefit of doubt.
5. On the evidence, the claimant was not truthful about his claimed identity document, journey and English-language ability. The Tribunal preferred the local authority’s broadly based evidence. It discharged the anonymity and interim-relief orders.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review claim transferred from the High Court after permission and interim relief had been granted. The Tribunal dismissed the claim and declared the claimant’s date of birth to be 1 January 1990.
• High Court: Blake J declined pre-permission interim relief. Walker J granted permission and interim relief by order dated 14 April 2011, and transferred the claim to the Upper Tribunal.