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

In an age-dispute judicial review, a claimant’s age is a precedent fact for the exercise of child-care powers under the Children Act 1989. The court must determine that fact itself, inquisitorially and on the balance of probabilities. There is no burden of proof and no separate rule requiring the benefit of the doubt. The evidence must instead be assessed sympathetically in light of the difficulties faced by an undocumented, unaccompanied young person.

A thorough, holistic and procedurally fair age assessment may carry substantial weight. A reassessment is unreliable where it is effectively predetermined and the young person is not given a proper opportunity, with appropriate support, to answer the adverse material.

The claimant, an asylum seeker who said that he was born on 15 December 1997, sought judicial review of Croydon’s decision to revise an earlier assessment and treat him as an adult. The earlier assessment had accepted his claimed age and placed him in foster care under the Children Act 1989.

The revision followed fingerprint information from Italy and concerns expressed by foster carers and social-work professionals. Croydon ended its support and the claimant was moved to adult accommodation. Permission was granted by Sales J and the judicial-review claim was transferred to the Upper Tribunal.

The central issue was the claimant’s age at the material time.

1. The claim succeeded. The Tribunal declared that the claimant was born on 15 December 1997. His age was a precedent fact to Croydon’s exercise of its powers under section 20(1) of the Children Act 1989. Applying R (A) v Croydon LBC [2009] 1 WLR 2557 and R (AE) v London Borough of Croydon [2012] EWCA Civ 547, the Tribunal had to decide that fact for itself.

2. The inquiry was inquisitorial and governed by the balance of probabilities. There was no burden of proof and no separate benefit-of-the-doubt standard. Following R (CJ) v Cardiff CC, the evidence nevertheless required a sympathetic assessment because an unaccompanied claimant may lack original identity documents.

3. The original assessment was thorough, Merton-compliant and undertaken by experienced social workers. It was the only proper physical assessment. It considered the claimant’s appearance, demeanour, history and circumstances, and was entitled to considerable weight.

4. The Italian fingerprint match established that the claimant had been fingerprinted in Italy. It did not establish that he had used the recorded identity, nationality or date of birth. The Tribunal found the wider Italian information unreliable in light of the country evidence and the claimant’s account of his route.

5. Greater weight was given to witnesses who had observed the claimant over time and alongside young people of his claimed age. The evidence supporting Croydon’s revised assessment was weakened by missing contemporaneous records, an unreliable later reconstruction of notes, and witnesses’ limited opportunity to know the claimant.

6. The Tribunal also considered that the reassessment procedure was flawed. The decision to end care appeared to have been made before the reassessment. The claimant was not properly informed of the case he had to answer and had no suitable supporting adult present. The Tribunal proposed an order for Croydon to pay the claimant’s costs, subject to agreement or written determination.

This was a first-instance judicial-review determination.

• High Court: Sales J granted permission to apply for judicial review on 2 October 2013.
• High Court: His Honour Judge Cooke, sitting as a Deputy High Court Judge, transferred the claim to the Upper Tribunal on 24 April 2014 under Senior Courts Act 1981, section 31 A(iii).