A LOCAL AUTHORITY v THE MOTHER & Anor

Age is an objective and jurisdictional fact for the court to determine on the balance of probabilities. Age assessment is an inquisitorial, holistic exercise. There is no burden of proof on the person whose age is questioned, and the benefit of reasonable doubt should be given to that person.

Appearance, demeanour, photographs and paediatric evidence require caution and cannot ordinarily determine age alone. The court must assess the totality of the evidence, including documentary evidence, and should not evaluate evidence in separate compartments. A firm date of birth is unnecessary where the evidence establishes the most likely age range.

The Local Authority commenced care proceedings after X, an Afghan child, initially said that she was 16 and made allegations against her parents, but later maintained that she was nine and then ten. A five-day fact-finding hearing was held to determine her true age before welfare orders were considered.

The evidence included a Merton-compliant age assessment, dental records, medical evidence, the parents’ evidence, photographs, school and placement records, and the father’s immigration history. The central issue was whether X was approximately 10 years old or materially older, in particular approximately 15 or 16.

1. Age determination. Whether a person is a child is an objective and jurisdictional fact for the court to determine. The court acts inquisitorially and reaches its own conclusion on the balance of probabilities. There is no burden of proof in the age assessment itself, although the Local Authority bears the burden of establishing the care proceedings threshold under the Children Act 1989.
2. Applicable approach. The court adopted the principles summarised in R (AB) v Kent County Council [2020] EWHC 109 (Admin). There should be no predisposition to treat the person as an adult or child. The benefit of doubt should be given to the individual because age assessment is not scientific. Appearance, demeanour and photographs are unreliable if used in isolation. The person should have an opportunity to explain inconsistencies. The court may identify the most likely range rather than a precise date, and experienced social workers’ views are not necessarily less reliable than paediatric evidence.
3. Evaluation of evidence. The assessment had to be holistic. The age assessment was treated with caution because it had failed properly to consider the dental evidence, the evidence concerning X’s first period and the father’s immigration history. X’s presentation, interests and initial account pointed towards an older age, but her traumatic experiences, disrupted education and unusual life history could make her appear older.
4. Conclusion. The dental records, showing a number of baby teeth, were weighty evidence against an age of 15 or 16. The father’s documented immigration history strongly supported conception in Pakistan in 2011 and birth in 2012. The court therefore found, on the balance of probabilities, that X was 10 years old. Her evidence given by video was wholly discounted because it had little or no forensic benefit.