A, R (on the application of) v London Borough of Croydon

In a dispute over whether a person is a child for the purposes of a local authority’s obligations, age is a precedent fact for the court to determine. The Tribunal must decide the issue on the balance of probabilities after an enquiry into all the evidence. Neither party bears a legal burden of proving the asserted age.

Physical appearance, demeanour, behaviour and psychological maturity may assist, but can be unreliable indicators, especially where the competing ages are close. A procedurally deficient age assessment, including one conducted without an appropriate adult, may materially reduce the weight that can safely be given to it. Once the court has determined age, separate public-law challenges will ordinarily serve no useful purpose if they cannot alter the practical result.

The claimant, an Iraqi national, challenged Croydon’s second assessment that he was born on 9 November 1990. He maintained that he was born on 9 November 1992. An earlier assessment reaching the same conclusion had been quashed in judicial review proceedings.

The claim was stayed pending the Supreme Court’s decision in R (A) v London Borough of Croydon [2009] UKSC 8 and was then transferred to the Upper Tribunal. The Tribunal heard evidence from the claimant, social workers and psychologists. It considered the reliability of the local authority’s assessment, the claimant’s account and documents, physical development, demeanour, and psychological evidence.

The central issue was the claimant’s date of birth, to be determined as a matter of fact on the balance of probabilities.

1. Declaration granted. The Tribunal found, on the balance of probabilities, that the claimant’s date of birth was 9 November 1992.

2. Following R (A) v London Borough of Croydon [2009] UKSC 8, the claimant’s age was a precedent fact for judicial determination. Applying R (CJ) v Cardiff City Counsel [2011] EWCA Civ 1950, the Tribunal held that neither party carried a legal burden of proof. It had to enquire into the evidence and decide the issue on the balance of probabilities, while assessing the evidence sensitively in light of the difficulties faced by an unaccompanied claimant without original documents.

3. The claimant’s evidence alone was not sufficiently reliable to establish his asserted age. There were legitimate concerns about an identity document regarded by his own expert as not genuine and the absence of potentially available evidence from Kirkuk. The Tribunal nevertheless avoided treating the absence of corroboration as determinative.

4. The February 2009 age assessment was materially unreliable. The claimant had not been invited to bring an appropriate adult, despite the Tribunal’s finding that this was not then the defendant’s practice. The assessment concentrated on an apparently confused account of school dates, without addressing other significant matters. The confusion may have arisen because the school year ran from September rather than by calendar year. The assessor’s concessions in cross-examination, together with the evidence concerning the claimant’s physical development, gave the Tribunal serious concerns about the assessment’s reliability.

5. Physical appearance, lifestyle, demeanour and psychological maturity could not reliably distinguish between the competing dates of birth. The psychometric evidence did not provide a dependable guide to chronological age, particularly given the claimant’s cultural and personal background and the small difference between the suggested ages.

6. Having made the factual determination, the Tribunal declined to determine the further challenge to an alleged policy of reducing claimed ages by two years. In light of the guidance in R (K) v Birmingham City Council [2012] EWCA Civ 1432, that exercise had no useful purpose once the factual outcome had resolved the dispute. Further orders, including costs, were reserved for written submissions if not agreed.

• Upper Tribunal (Immigration and Asylum Chamber): The judicial-review claim was transferred to the Tribunal following R (A) v London Borough of Croydon [2009] UKSC 8. The Tribunal determined the claimant’s age as a precedent fact and granted a declaration.
• Earlier judicial review: Croydon’s first age assessment, dated 21 February 2008, was quashed on 29 November 2008. No citation is stated in the judgment.