DN (A Child), Re

The Family Division may determine a child’s age and make a declaration even where age is not decisive of jurisdiction. The court should do so where the finding is materially relevant to welfare, identity, education or care planning. Age is determined on the balance of probabilities, having regard to the whole evidential picture, including physical, emotional, behavioural, social and cognitive development, consistent self-reporting, background information and properly conducted social-work assessments. A declaration may be appropriate where it provides necessary certainty for decisions affecting the child. The court may also make a care order where the child’s welfare requires stability and security.

The local authority applied for a declaration concerning DN’s date of birth and for a care order. Her date of birth had been recorded as a date in 2001, but the local authority and Children’s Guardian contended that she had been born on 20 October 1999. The application followed earlier judgments concerning jurisdiction, welfare and the care arrangements for DN and three younger children in her household, including [2012] EWHC 4278 (Fam) and [2013] EWHC 1433 (Fam).

The central issues were whether the Family Division had jurisdiction to determine DN’s age where the outcome did not affect jurisdiction to make a care order, whether a declaration was required for welfare purposes, and what age was established on the evidence.

1. The court had jurisdiction to determine DN’s age and make a declaration. Earlier authority, including E v London Borough of X [2005] EWHC 2811 and Lambeth Borough Council v TK [2009] 1 FCR 285, established that the court could resolve age disputes in the exercise of its jurisdiction. The fact that either proposed age would leave the court with jurisdiction to make a care order did not prevent a declaration.

2. A declaration was required by DN’s welfare interests. Age was relevant under the welfare checklist in section 1(3) of the Children Act 1989 and had wider significance for identity, education and care planning. The impending move into secondary education made timely certainty particularly important.

3. The court considered the guidance in R (on the application of B) v Merton Borough Council [2005] 3 FCR 69. Age assessments could properly be undertaken by experienced social workers and did not require a lengthy judicial hearing. The evidence comprised two assessments by experienced professionals, together with evidence from the foster carer and school.

4. On the balance of probabilities, the evidence demonstrated that DN was older than the recorded date suggested. Her physical development, emotional and social presentation, cognitive abilities and consistent account that she was two years older supported a finding that she had been born on 20 October 1999. The court therefore declared that she was 13 years and nine months old.

5. A care order was also made because DN’s welfare required the stability and security that such an order would provide. The care plan was approved subject to additions concerning independent legal advice on her immigration position and pursuing a Criminal Injuries Compensation Board claim. The local authority was urged to exercise caution before changing a settled placement solely because of cultural-appropriateness concerns.

First-instance decision. The judgment refers to earlier decisions in the same proceedings at [2012] EWHC 4278 (Fam) and [2013] EWHC 1433 (Fam).