Court/Judicial body: Supreme Court of the United Kingdom
Citation:  UKSC 8
Date: 26 November 2009
Instrument(s) cited:Children’s Act 1989, Sections 17, 20European Convention on Human Rights, Article 6
Background: The case was formed by joining a number of individual cases involving age assessment of people claiming to be unaccompanied children seeking asylum. The two lead cases involved two anonymous people identified as “A” and “M”. A, entered the UK in 2007 and sought asylum He claimed to be 15 and was referred to the local authority in Croydon for an age assessment. Two social workers interviewed him, assessed that he was an adult and denied assistance with accommodation that the local authority is required to provide to unaccompanied children. Solicitors acting for A later produced a copy of his Afghan birth certificate stating that the boy was 15 and a paediatrician examined him and concluded that he was between 15 and 17. The boy filed a judicial review of the local authority’s refusal to provide him with the accomodation. M entered the UK in November 2006 and claimed asylum. He claimed to be just under 17 and was referred to the local authority in Lambeth for an age assessment. Two social workers concluded that he was over 18. A paediatrician’s report was later obtained which concluded that he was 17. After a judicial review of the initial decision, the local authority reconsidered its age assessment and concluded that the boy was 20 years old. Meanwhile, an immigration tribunal was considering the boys case, accepted the paediatrician’s report that the boy was under 18 and granted the boy leave to remain in the UK. The decisions were appealed through the national courts, ultimately reaching the Supreme Court.
Issue and resolution: Age assessment. Where the age of a child is in dispute before a court, it is for the court to make an assessment on the balance of probabilities.
Court reasoning: Under the Children’s Act 1989, a child is defined as “a person under the age of 18”. The Act draws a clear distinction between factual questions around age and those requiring value judgments, such as when a child is “taken to be in need”. It may be difficult to determine how old a person is based on the available evidence, but there is nonetheless a correct answer and falls within the factual decisions, which are ultimately for the court to decide. As a result, where courts are faced with a question about the age of a person, they must make that decision on the balance of probabilities, even as part of judicial review proceedings. Given these findings, the court held that it was not necessary to rule on whether Article 6 of the European Convention on Human Rights was engaged for the purposes of this case, but two judges set out comments on its application. Article 6 of the ECHR ens everyone to a fair and public hearing within a reasonable time by an independent and impartial tribunal when their civil rights are to be decided. Baroness Hale, explained that she would be reluctant to accept that welfare services fall within Article 6 without further authority from the European Court of Human Rights on the issue and that if they were civil rights within the Article, that they are at the periphery and conventional judicial review would be adequate to meet the necessary requirements. Lord Hope also addressed the ECHR case law on the scope of Article 6 and concluded that the legal duty for local authorities to provide accomodation to unaccompanied children under the Children’s Act 1989 did not give rise to a civil right.
Link to full judgement: http://www.bailii.org/uk/cases/UKSC/2009/8.html