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B,
R (on the application of) v London Borough of Merton
[2003] EWHC 1689 (Admin) (14 July 2003)
Neutral Citation Number: [2003] EWHC 1689 (Admin)
Case No: CO/881/2003
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
B e f o r e :
THE HONOURABLE MR JUSTICE
STANLEY BURNTON
____________________
The Queen on the application of: B
Claimant
- and -
The Mayor and Burgesses of the London
Borough of Merton
Defendant
Robert Latham (instructed by Shelter Legal
Services) for the Claimant
Nicholas O'Brien (instructed by the Head of Legal
Services of the London Borough of Merton) for the
Defendant
Hearing date: 6 June 2003
____________________
HTML VERSION OF APPROVED JUDGMENT
____________________
Crown Copyright ©
Mr Justice Stanley Burnton :
Introduction
- The Claimant is an asylum-seeker.
He has no means of support in this country. He claims
to be aged 17. If so, he is not an asylum-seeker within
the meaning of the Nationality, Immigration and Asylum
Act 2002, which does not apply to those who are not
aged at least 18 years (section 18(1)(a)), and the
Secretary of State for the Home Department has no
responsibility for his support under that Act. But,
if he is under 18, and is in need, he is owed a duty
under Part III of the Children Act 1989 by the local
authority in whose area he is, including a duty under
section 20 of that Act, to provide him with accommodation.
- However, on 13 February 2003
the Defendant determined that he was aged at least
18. On that basis, he was not a child and the local
authority owed him no duty under the Children Act
1989.
- In these proceedings the Claimant
seeks the judicial review of that determination.
- Both parties have asked the
Court to give guidance as to the requirements of a
lawful assessment by a local authority of the age
of a young asylum seeker claiming to be under the
age of 18 years. There are significant numbers of
unaccompanied children entering the United Kingdom
and claiming asylum. An acronym has come into use:
UASC (Unaccompanied Asylum-Seeking Child).
The facts
- The Claimant's case is as
follows. He was born in the Ivory Coast on 6 February
1986. His father was a Catholic; his mother a Muslim.
She was Senegalese. He was educated in part in Catholic
schools and confirmed into the Catholic faith in 2000.
His mother died in 2001 and was buried in Senegal.
His father and he went to Senegal for the funeral,
and while there his father was murdered. He then spent
a year living on the streets in Senegal. He speaks
French, but not English.
- The Claimant states that he
arrived in the United Kingdom from Senegal on 1 February
2003. On 7 February he was taken to the Refugee Council,
which secured accommodation for him for the weekend.
- On Monday 10 February 2003
he applied for asylum at Croydon. He could not name
the airport where he had arrived in this country.
The National Asylum Support Service (NASS) decided
that he was not a minor and should be treated as an
adult; they refused him support on the ground that
they were not satisfied that he had made his asylum
claim as soon as reasonably practicable after his
arrival in the United Kingdom.
- On 12 February the Refugee
Council referred the Claimant to the Defendant borough
for assistance under section 17 of the Children Act
1989. The Defendant did not assess him immediately,
and asked him to return on 13 February.
- On that day, he was interviewed
by Christine Rodney, a social worker of the Defendant's
Department of Housing and Social Services. He had
with him the NASS letter of 10 February stating that
the Home Secretary did not consider him to be a minor
and refusing him support, and he produced it to Ms
Rodney. The duration of the interview is in issue,
the Claimant estimating it at 25 to 30 minutes and
Ms Rodney at 45 minutes, but it is accepted by both
sides that my decision cannot turn on this issue.
Ms Rodney does not speak French. The interview was
conducted through an interpreter on the other end
of a telephone: Miss Rodney would give the interpreter
the question, the telephone was then passed to the
Claimant for him to hear the French translation and
to give his answer, and the telephone would then be
passed to Ms Rodney for her to hear the translation
of the Claimant's answer and to ask the next question.
- Ms Rodney did not keep a
verbatim record of the interview. She used a pro-forma
document, the Framework of Assessment for Children
in Need and their Families, and completed it following
the interview. She noted that he had gone to a Catholic
school, but also that he identified with the Islamic
faith and its culture. She took a family history,
which included the murder of his father. She noted:
"Both (B's) parents are dead. His father
was slayed by masked men. (B) was able to escape.
(B) spent a year in Senegal on the streets before
being assisted in coming to the UK."
- Under the heading of "Ethnicity",
Ms Rodney noted:
"(B) is a Black African, he is of the
Catholic faith.
"
Under the heading "Summary", she noted:
"(B) is a young man who claims to be 17
years old. (B's) appearance is that of a much older
man. My calculated guess (is that) he is in his
late teens. Unfortunately, (B's) history is that
of
experiencing loss and violence and this alone
will affect him emotionally."
- The original manuscript
of the form shows that the number 17 was written over
another number. The typescript made from the manuscript
has the figure 16. Ms Rodney does not deal with this
discrepancy in her witness statement. The most likely
explanation is that the figure of 16 was originally
written on the form, on the basis of her calculation
of his age from the date of birth he had given and
which she had written on page 1 of the form.
- Ms Rodney concluded that
although the Claimant was in need, he was not a child.
Her assessment was as follows:
"(B) is not a child in need. I am not
disputing that he is in need in his own right. I
have followed the procedure by undertaking an assessment
and from this assessment I am taking the stance
of the Home Office."
- In her witness statement,
Ms Rodney stated:
"(Mr B) has the physical appearance of
a person older than 17. He does not have a youthful
appearance and in my view is at least 18-20 years
old.
Throughout the interview (Mr B) was very
mature and confident. I am of the view that (Mr
B's) level of confidence is unusual for an unaccompanied
minor."
Mr Latham relied upon the difference between this
statement and that in the form that he was "in his
late teens", and said that this part of her witness
statement was an ex post facto attempt to
justify her decision.
- Ms Rodney also referred
in her witness statement to inconsistencies in the
Claimant's account of his history. In paragraph 23,
she stated:
"There were a number of inconsistencies
in (Mr B's) account of his history which made (me)
doubt his credibility as follows:
a. (Mr B) did not remember what one
of his educational diplomas was for. I am of the
view that this is unusual for a 17 year old.
b. (Mr B) indicated that he was in school
until 4 months ago but later in the interview
said that he had been on the streets in Senegal
for a year.
c. (Mr B) said that 4 months ago he
had to stop school because his parents could no
longer afford the fees, yet he said that his father
had died a year ago and his mother before that.
d. (Mr B) said that he had been befriended
by two strangers (one in the UK who took him to
the Refugee Council and one in Senegal who took
him to this country). (Mr B) was unable to identify
these people. I am of the view that this account
was a little far fetched."
- At the end of the interview,
Ms Rodney gave the Claimant a decision letter, dated
13 February 2003, signed by her team manager. It stated:
"This Department has taken the stance
of the Home Office.
The Secretary of State does not accept
that you are a minor and is satisfied that you should
be treated as an adult. Accordingly, you will need
to return to the Refugee Council and request that
they advocate on your behalf with the Home Office."
The parties' contentions in summary
- The Claimant contends:
i) The inquiries made by the Defendant were inadequate.
It is not possible to determine age on the basis
of appearance only, and the Defendant should have
arranged for a medical examination before making
its decision.
ii) There was procedural unfairness, in that he
should have been given an adequate opportunity to
answer the points that the Defendant was minded
to hold against him.
iii) The Defendant did not itself make a determination
of the Claimant's age, but simply adopted the conclusion
of the Home Secretary.
- The Defendant contends that
the assessment process was rational, adequate and
lawful; the decision made by it was a reasonable decision
on a question of fact; and therefore that it cannot
be impugned.
- Mr Latham also submitted
that the determination of the age of the Claimant
was a determination of his civil rights within the
meaning of Article 6 of the European Convention on
Human Rights. If it is, clearly the decision of the
Defendant's social worker is not that of an independent
and impartial tribunal. However, Mr Latham also accepted
that judicial review of the Defendant's decision would
render the process as a whole Convention compliant.
The background
- In a case such as the present,
the applicant does not produce any reliable documentary
evidence of his date of birth or age. In such circumstances,
the determination of the age of the applicant will
depend on the history he gives, on his physical appearance
and on his behaviour.
- There is no statutory procedure
or guidance issued to local authorities as to how
to conduct an assessment of the age of a person claiming
to be under 18 for the purpose of deciding on the
applicability of Part III of the Children Act 1989.
- The determination of an
applicant's age is rendered difficult by the absence
of any reliable anthropometric test: for someone who
is close to the age of 18, there is no reliable medical
or other scientific test to determine whether he or
she is over or under 18. The Guidelines for Paediatricians
published in November 1999 by the Royal College of
Paediatrics and Child Health states:
"In practice, age determination is extremely
difficult to do with certainty, and no single approach
to this can be relied on. Moreover, for young people
aged 15-18, it is even less possible to be certain
about age. There may also be difficulties in determining
whether a young person who might be as old as 23
could, in fact, be under the age of 18. Age determination
is an inexact science and the margin of error can
sometimes be a much as 5 years either side.
Overall, it is not possible to actually
predict the age of an individual from any anthropometric
measure, and this should not be attempted. Any assessments
that are made should also take into account relevant
factors from the child's medical, family and social
history."
- Different people living
in the same country, with the same culture and diet,
mature physically and psychologically at different
rates. It is difficult for a layman to determine the
age of someone born in this country with any accuracy.
A general practitioner is very unlikely to have the
knowledge or experience to improve on the accuracy
of an intelligent layman. To obtain any reliable medical
opinion, one has to go to one of the few paediatricians
who have experience in this area. Even they can be
of limited help, as in the instant case and is referred
to below.
- The difficulties are compounded
when the young person in question is of an ethnicity,
culture, education and background that are foreign,
and unfamiliar, to the decision maker.
- Shelter obtained a report
on the Claimant from Dr Colin Michie, a consultant
paediatrician with a particular interest in investigating
physiological changes with age who had conducted over
300 examinations in order to estimate age in the last
year alone. He stated:
"It is possible that (B) has provided
a correct birthdate. His social history supports
this year of birth with some accuracy. Further his
height and weight, skin fold thickness, the skin
signs seen in young adults and his dental examination
were consistent with a chronological age of 18 ±2
years when compared with published charts of these
measures (see references). This observation is supported
by non-objective assessment of the psychological
maturity of the client during the interview. A more
narrow error margin is not possible using these
methods. The birthdate given to me today by (B)
falls within these wide error limits."
- Mr Latham relied on Dr Michie's
report as supporting the Claimant's case. But it equally
supports the Defendant's: his range of 18 plus or
minus 2 years is also consistent with Ms Rodney's
assessment. Indeed, it is more supportive of Ms Rodney's
assessment than the Claimant's case, since the median
age given by Dr Michie is 18.
- Of course, there may be
cases where it is very obvious that a person is under
or over 18. In such cases there is normally no need
for prolonged inquiry; indeed, if the person is obviously
a child, no inquiry at all is called for. The present
is not such a case. The difficulty normally only arises
in cases, such as the present, where the person concerned
is approaching 18 or is only a few years over 18.
But the possibility of obvious cases means that it
is not possible to prescribe the level or manner of
inquiry so as sensibly to cover all cases.
- Given the impossibility
of any decision maker being able to make an objectively
verifiable determination of the age of an applicant
who may be in the age range of, say, 16 to 20, it
is necessary to take a history from him or her with
a view to determining whether it is true. A history
that is accepted as true and is consistent with an
age below 18 will enable the decision maker in such
a case to decide that the applicant is a child. Conversely,
however, an untrue history, while relevant, is not
necessarily indicative of a lie as to the age of the
applicant. Lies may be told for reasons unconnected
with the applicant's case as to his age, for example
to avoid his return to his country of origin. Furthermore,
physical appearance and behaviour cannot be isolated
from the question of the veracity of the applicant:
appearance, behaviour and the credibility of his account
are all matters that reflect on each other.
- In this context, as in others,
it would be naοve to assume that the applicant is
unaware of the advantages of being thought to be a
child. Draft Practice Guidelines for Age Assessment
of Young Unaccompanied Asylum Seekers state:
"Assessment of age is a complex task,
which is a process and not an exact science. This
is further complicated by many of the young people
attempting to portray a different age from their
true age."
It advises the decision maker/interviewer:
"It is also important to be mindful of
the "coaching" that the asylum seeker may have had
prior to arrival, in how to behave and what to say
"
- The lack of a passport or
other travel document may itself justify suspicion,
as it did in the present case, particularly if the
applicant claims to have entered this country overtly,
for example through an airport, in circumstances in
which a passport must be produced.
Decisions in other contexts
- This is not the only context
in which decisions may have to be made as to whether
a person is over 18. Where the person is not brought
before the court to give evidence, section 99 of the
Children and Young Persons Act 1933 applies. It does
not expressly stipulate what enquiries are appropriate
where there is a material dispute as to age. Section
152 of the Magistrates' Courts Act 1980 provides that
where a person's age is material for the purposes
of the provisions of that Act regulating the powers
of a magistrates' court, his age at the material time
shall be deemed to be or to have been "that which
appears to the court after considering any available
evidence to be or to have been his age at that time".
Part I of the Criminal Justice Act 1982 is concerned
with the treatment of young offenders, and section
1(6) of that Act makes similar provision in relation
to the determination of a person's age by the court
or the Home Secretary for the purposes of that Act.
The wording of these provisions is indicative of the
difficulty of precise and objective determination
of age in the absence of reliable documentary evidence.
- Mr O'Brien sought to rely
on the decision of the Divisional Court in Walworth
v Balmer [1966] 1 WLR 16, in which, on a prosecution
for knowingly selling liquor to a person under 18,
the only evidence before the magistrate had been the
appearance of the boys, who were present in court,
to whom the liquor had been sold. Neither the prosecution
nor the defence had sought to question the boys, and
no evidence had been called as to their age. It was
held that the magistrate, who was satisfied as to
their age, had rightly convicted the defendant. I
do not find that case of assistance. In the first
place, the youth of the boys appears to have been
obvious. Secondly, the defendant had the opportunity
to question the boys or to call evidence as to their
true age. He having failed to do so, the magistrate
was entitled, indeed bound, to decide the case on
the evidence before him. There could have been no
complaint of lack of due process or of an unfair procedure.
Other guidance as to the appropriate procedure
- A draft document entitled
"Practice Guidelines for Age Assessment of Young Unaccompanied
Asylum Seekers", issued by the London Boroughs of
Hillingdon and Croydon, who are participating in a
pilot project for practitioners in social work with
unaccompanied asylum-seeking children, makes sensible
suggestions. It states that it is beneficial to have
two assessing workers: clearly, two heads may be better
than one. It implies a preference for age assessment
to be undertaken over a period of time and involve
other professionals, such as residential social worker
staff, teachers, and other young people. It states:
"It is very important to ensure that the
young person understands the role of the assessing
worker, and comprehends the interpreter. Attention
should also be paid to the level of tiredness, trauma,
bewilderment and anxiety that may be present for
the young person. The ethnicity, culture, and customs
of the person being assessed must be a key focus
throughout the assessment.
It is also important to be mindful of
the "coaching" that the asylum seeker may have had
prior to arrival, in how to behave and what to say.
Having clarified the role of the social services,
it is important to engage with the person and establish
as much rapport as the circumstances will allow.
This process is sometimes known as "joining". The
assessing worker needs to acknowledge with the young
person that they will have had to already answer
many questions, and that it may be difficult and
distressing to answer some of the questions.
In utilising the assessment framework,
the practitioner should ask open-ended non leading
questions. It is not expected that the form should
be completed by systematically going through each
component, but rather by formulating the interview
in a semi-structured discussion gathering information
at different stages, the use of circular questioning
is a useful method as it is less obvious to the
person being assessed that the questions relate
directly to age and hence may reveal a clear picture
of age related issues."
- The draft includes a form
for use when assessing the age of an applicant, with
spaces for information as to his or her physical appearance
and demeanour, manner of interaction with the assessing
worker, social history and family composition, developmental
considerations (i.e. information about the types of
activities that the person was involved in before
arriving in the UK), education, his or her level of
independence and self-care, health and medical assessment,
information from documentation and other sources and,
finally, the conclusion of the assessment. In relation
to the health and medical assessment, the form comments
that "A medical opinion and view on age will always
be helpful", a statement with which it is difficult
to quarrel. Side notes make helpful but common sense
suggestions, such as "Life experience and trauma may
impact on the ageing process".
Home Office Policy
- Policy Bulletin 33: Age
Disputes, published by the Immigration and Nationality
Directorate of the Home Office, states:
"8.1 If the applicant claims to be a minor
but his/her appearance strongly suggests
that s/he is over 18 the applicant will be treated
as an adult until such time as credible documentary
or medical evidence is produced which demonstrates
that s/he is the age claimed. In borderline cases
the Immigration Service will continue to give the
applicant the benefit of the doubt and to deal with
the applicant as a minor. In accordance with existing
policy they will continue to inform the Refugee
Council's Panel of Advisors of anyone who has claimed
to be a minor, even when the age is disputed and
the decision has been taken to treat the applicant
as an adult.
9.1 An asylum seeker who declares on arrival
that s/he is under 18, and is given the benefit
of the doubt by the Immigration Service, will be
referred to the local authority social services
department (SSD) for support under the Children
Act 1989. The SSD will conduct an assessment and
on the basis of that assessment may reach the conclusion
that the person is aged over 18.
9.2 Where an application is received from
an asylum seeker who declares that s/he is under
18, but it is accompanied by a letter from the SSD
stating that, in their opinion, the person is aged
over 18, s/he should be deemed to be an adult for
NASS purposes until such time as s/he can prove
otherwise. The burden of proof lies with the asylum
seeker. It is up to him/her to prove that s/he is
a minor. The applicant should be advised accordingly.
A proforma letter, to be adapted as necessary, is
attached at Annex A."
The emphasis is in the original.
Discussion
- The assessment of age in
borderline cases is a difficult matter, but it is
not complex. It is not an issue which requires anything
approaching a trial, and judicialisation of the process
is in my judgment to be avoided. It is a matter which
may be determined informally, provided safeguards
of minimum standards of inquiry and of fairness are
adhered to.
- It is apparent from the
foregoing that, except in clear cases, the decision
maker cannot determine age solely on the basis of
the appearance of the applicant. In general, the decision
maker must seek to elicit the general background of
the applicant, including his family circumstances
and history, his educational background, and his activities
during the previous few years. Ethnic and cultural
information may also be important. If there is reason
to doubt the applicant's statement as to his age,
the decision maker will have to make an assessment
of his credibility, and he will have to ask questions
designed to test his credibility.
- I do not think it is helpful
to apply concepts of onus of proof to the assessment
of age by local authorities. Unlike cases under section
55 of the Nationality, Immigration and Asylum Act
2002, there is in the present context no legislative
provision placing an onus of proof on the applicant.
The local authority must make its assessment on the
material available to and obtained by it. There should
be no predisposition, divorced from the information
and evidence available to the local authority, to
assume that an applicant is an adult, or conversely
that he is a child. Of course, if an applicant has
previously stated that he was over 18, the decision
maker will take that previous statement into account,
and in the absence of an acceptable explanation it
may, when considered with the other material available,
be decisive. Similarly, the appearance and demeanour
of the applicant may justify a provisional view that
he is indeed a child or an adult. In an obvious case,
the appearance of the applicant alone will require
him to be accepted as a child; or, conversely, justify
his being determined to be an adult, in the absence
of compelling evidence to the contrary.
- However, the social services
department of a local authority cannot simply adopt
a decision made by the Home Office. It must itself
decide whether an applicant is a child in need: i.e.
whether the applicant is a child, and if so whether
he or she is in need within the meaning of Part III
of the Children Act 1989. A local authority may take
into account information obtained by the Home Office;
but it must make its own decision, and for that purpose
must have available to it adequate information. It
follows that if all the Defendant had done was, as
stated by its letter of 13 February 2003, to have
taken the stance of the Home Office, its decision
would have been unlawful.
- In fact, however, the evidence
satisfies me that the Defendant did make its own assessment.
That it did so, and the reasons given for its decision,
are inconsistent with the letter of 13 February 2003.
The issue is raised by Mr Latham whether in these
circumstances the court should permit the Defendant
to justify its decision by reference to matters that
were not referred to in that letter.
- In my judgment in Nash
v Chelsea College of Art & Design [2001] EWHC
Admin 538, I sought to summarise the principles applicable
to this issue.
"34. In my judgment, the following propositions
appear from the above authorities:
(i) Where there is a statutory duty
to give reasons as part of the notification of
the decision, so that (as Law J put it in Northamptonshire
County Council ex p D) "the adequacy of the
reasons is itself made a condition of the legality
of the decision", only in exceptional circumstances
if at all will the Court accept subsequent evidence
of the reasons.
(ii) In other cases, the Court will
be cautious about accepting late reasons. The
relevant considerations include the following,
which to a significant degree overlap:
(a) Whether the new reasons are consistent
with the original reasons.
(b) Whether it is clear that the new
reasons are indeed the original reasons of the
whole committee.
(c) Whether there is a real risk that
the later reasons have been composed subsequently
in order to support the tribunal's decision,
or are a retrospective justification of the
original decision. This consideration is really
an aspect of (b).
(d) The delay before the later reasons
were put forward.
(e) The circumstances in which the
later reasons were put forward. In particular,
reasons put forward after the commencement of
proceedings must be treated especially carefully.
Conversely, reasons put forward during correspondence
in which the parties are seeking to elucidate
the decision should be approached more tolerantly.
35. To these I add two further considerations.
The first is based on general principles of administrative
law. The degree of scrutiny and caution to be applied
by the Court to subsequent reasons should depend
on the subject matter of the administrative decision
in question. Where important human rights are concerned,
as in asylum cases, anxious scrutiny is required;
where the subject matter is less important, the
Court may be less demanding, and readier to accept
subsequent reasons.
36. Secondly, the Court should bear in
mind the qualifications and experience of the persons
involved. It is one thing to require comprehensiveness
and clarity from lawyers and those who regularly
sit on administrative tribunals; it is another to
require those qualities of occasional non-lawyer
tribunal chairmen and members."
- Subsequently, in R (Ashworth
Mental Hospital) v Mental Health Review Tribunal [2001]
EWHC Admin 901, I accepted that the statement in paragraph
(i) of paragraph 34 of my judgment in Nash was
too widely expressed. Reasons that merely elucidate
reasons given contemporaneously with a decision will
normally be considered by the Court: see R v Westminster
City Council, ex parte Ermakov [1996] 2 All ER
302.
- Unlike Ermakov, this
is not a case in which statute required that reasons
be given for the decision, let alone that reasons
be given at the same time as the decision. The factors
to which I referred in Nash point strongly
to the admission of the Defendant's evidence as to
its true reasons for its decision. In particular,
the original reason given can be ascribed to a lack
of thought when the letter was written, and on that
basis is not wholly in conflict with the evidence
now put forward: compare that part of the assessment
form quoted in paragraph 13 above with the letter
of 13 February 2003. There has been no undue delay;
Ms Rodney is not a lawyer and a degree of latitude
is appropriate when considering the letter she drafted.
Most importantly, it is clear that the evidence before
me does represent the true basis of, and gives the
reasons for, Ms Rodney's decision, and in my judgment
those reasons are adequate. The relatively minor inconsistency
referred to in paragraph 14 above does not lead me
to doubt the genuineness of her notes or of the reasons
she has put forward for her decision.
- On this basis, the issues
are: was the information available to the Defendant
adequate, and was the decision procedurally fair?
- However, I accept Mr Latham's
submission that a local authority is obliged to give
adequate reasons for its decision that an applicant
claiming to be a child is not a child, and who is
therefore refused support under Part III of the Children's
Act. The consequences of such a decision may be drastic
for the applicant, and he is entitled to know the
basis for it, and to consider, if he can, with legal
assistance if it is available to him, whether the
decision is a lawful one. In my judgment this is the
position at common law, irrespective of the issue
as to the applicability of Article 6 of the European
Convention on Human Rights, as to which I say nothing.
It is noteworthy that in the analogous context of
a decision by the Home Secretary to refuse support
under section 55 of the Nationality, Immigration and
Asylum Act 2002, in (R) Q v Secretary of State
for the Home Department [2003] EWHC 195 Admin
(Collins J) and [2003] EWCA Civ 364, [2003] 2 All
ER 905 (Court of Appeal), the Home Secretary accepted
that he was under a duty to give reasons for a decision
adverse to an asylum seeker: see paragraph 21 of the
judgment of Collins J, cited at paragraph 80 of the
judgment of the Court of Appeal. I see no relevant
distinction between those cases and the present. I
bear in mind that the hypothesis is that the applicant
is determined to be over 18, and therefore able to
comprehend (if necessary in translation) the reasons
given to him.
- The availability of an internal
review or complaints procedure, to which I refer below,
does not obviate the need for reasons: reasons are
required so that the applicant may make an informed
decision whether to ask the local authority to review
its decision or to make a complaint concerning the
decision, quite apart from the need for him (or rather
a legal adviser) to be able to ascertain whether the
decision is lawful or amenable to judicial review.
- Mr O'Brien told me that
in practice reasons are given, but submitted that
it is sufficient for a local authority to state that
it refuses to provide the applicant with support under
the Children Act because he is not a child. In my
judgment, such a brief statement is a statement of
the decision of the local authority, not of the reasons
for its decision.
- However, in general, the
reasons need not be long or elaborate. On what is
ultimately a simple if difficult issue, it should
not be necessary to go to the lengths seen in, for
example, adjudicators' determinations in asylum cases.
In the present case, it would have been sufficient
to have stated that the decision was based on the
appearance and behaviour (or demeanour) of the claimant,
and on the matters referred to in paragraph 23 of
Ms Rodney's statement (referred to in paragraph 15
above), which led her to conclude that he was not
truthful.
The adequacy of the information available to
the Defendant
- Mr Latham submitted that
the information available to the Defendant, and its
procedure, were inadequate. If so, the decision reached
by the Defendant would be liable to be set aside as
being one that no reasonable authority could have
arrived at in the circumstances. He submitted that
the form used by Ms Rodney was unsuited to the inquiry
on which she was engaged: it was designed for an inquiry
as to whether a child and his family were in need,
not whether the person claiming to be a child is such.
He suggested that the questions put to the Claimant,
and his answers, should have been noted verbatim,
by Ms Rodney or by someone else present during the
interview, so that the Claimant's legal advisers and
the court could be assured that the questions were
open-ended, fair and appropriate. The procedure used,
involving the use of an interpreter at the other end
of the telephone, was replete with risk of confusion
and misunderstanding. He suggested that medical evidence
was required, and should have been obtained. He pressed
the advantages of observation of the applicant over
a period of time, preferably by a number of professionals,
as mentioned in paragraph 33 above.
- In my judgment, the court
should be careful not to impose unrealistic and unnecessary
burdens on those required to make decisions such as
that under consideration. Judicialisation of what
are relatively straightforward decisions is to be
avoided. As I have stated, in such cases the subject
matter of decision is not complex, although in marginal
cases the decision may be a difficult one. Cases will
vary from those in which the answer is obvious to
those in which it is far from being so, and the level
of inquiry unnecessary in one type of case will be
necessary in another. The Court should not be predisposed
to assume that the decision maker has acted unreasonably
or carelessly or unfairly: to the contrary, it is
for a claimant to establish that the decision maker
has so acted.
- Ms Rodney did not make her
decision on the basis of the appearance and demeanour
of the Claimant alone. It is not suggested that the
Claimant was unaware of the purpose of his interview.
She took a full family and personal history, including
the Claimant's educational history. It was not necessary
to obtain a medical report, which for reasons stated
above would not have been helpful and was unlikely
to have been so. It was not necessary for the local
authority to provide support for a period of some
days or weeks to give the opportunity for others to
observe the Claimant, and for him to be observed and
assessed over that period, if the information available
was sufficient for a decision to be made, which it
was.
- However, where an interpreter
is required, it is obviously greatly preferable for
him or her to be present during the interview. The
procedure adopted in this case carried with it the
risk of misunderstandings, and great care was required
of Ms Rodney and of the interpreter to ensure that
no mistakes were made. As far as I am aware, the interpreter
made no note, in either English or French, of the
questions asked by Ms Rodney or of the Claimant's
answers, either in verbatim or rolled up form (i.e.,
with the questions and answers combined). Such a note
by the interpreter would have been highly relevant
to the Claimant's suggestions that what he said was
not correctly noted, or was misunderstood, by Ms Rodney,
who heard his answers at second hand. I am concerned
at the contradiction between Ms Rodney's note that
the Claimant "identifies with the Islamic faith and
its culture" and her later note that "he is of Catholic
faith". The contradiction is not referred to in her
witness statement, and was not one of the reasons
for her decision to reject the Claimant's credibility.
If she correctly noted his statements, he made an
obvious and unintelligent contradiction. In view of
my decision in this case, I need say no more about
it.
- In cases such as the present,
the social worker must of course bear in mind her
unfamiliarity with the background of the applicant.
There is no reason to believe that Ms Rodney did not
do that. I should also mention that her sympathy with
the Claimant's situation is apparent from her notes.
- In my judgment, it is not
necessary as a matter of law for there to be a verbatim
note of the interview; but such a note would enable
the court to be more confident of its accuracy and
to address any suggestion that the interviewer put
words into the mouth of the applicant by asking leading
questions that led the young applicant to accept what
was suggested to him. It is not necessary for the
note to be countersigned by the applicant, although
again that may be helpful for a local authority evidentially.
The Claimant complains that he was not asked to counter-sign
Ms Rodney's notes, but since he cannot speak English,
there would have been no point in asking him to do
so. Indeed, it would have been thoughtless to have
asked him to counter-sign them.
Other requirements of fairness
- So far as the requirements
of fairness are concerned, there is no real distinction
between cases such as the present and those considered
in Q. It follows that the decision maker must
explain to an applicant the purpose of the interview.
It is not suggested that that did not happen in this
case. If the decision maker forms the view, which
must at that stage be a provisional view, that the
applicant is lying as to his or her age, the applicant
must be given the opportunity to address the matters
that have led to that view, so that he can explain
himself if he can. In other words, in the present
case, the matters referred to in paragraph 15 above
should have been put to him, to see if he had a credible
response to them. The dangers of misunderstandings
and mistranslations inherent in the absence of the
interpreter reinforced the need for these matters
to be put, to give the Claimant an opportunity to
explain.
- The Claim Form clearly alleged
that the Claimant should have been given an adequate
opportunity to answer the points that the Defendant
was minded to hold against him. Ms Rodney does not
suggest that this was done. It follows that her decision
should be set aside unless the Defendant has established
that his responses to the matters on which she relied
could not reasonably have affected her decision. The
Claimant addresses these matters in paragraph 14 of
his second witness statement. Not surprisingly, he
gives no explanation of the implausibility referred
to in paragraph 15(d) above. His explanations of the
matters referred to at (b) and (c) are unsatisfactory,
and in essence amount to an assertion that Ms Rodney
must have misunderstood him. It is the risk that there
was some misunderstanding of what he said, a risk
that is accentuated by the inconsistency between her
notes of the two statements as to his religion to
which I have referred, and the possibility that he
might have been able to rectify any misunderstanding
if the matters relied upon had been put to him, that
leads me to conclude, albeit with considerable hesitation,
that the Defendant has not satisfied the onus of establishing
that even if they had been put to the Claimant, the
same decision would inevitably have been made.
- Mr O'Brien submitted that
this case is to be distinguished from Q because
of the availability of the complaints and review procedure
required by section 26 of the 1989 Act and regulations
made under it, which provide a suitable alternative
remedy to judicial review. Mr Latham countered that
the complaints procedure is not a suitable remedy,
because someone in the position of the Claimant requires
immediate relief. Section 26(3)(a) requires a local
authority to establish a procedure for investigating
any complaint or representation made by "any child
who is not being looked after by them but is in
need". The Representations Procedure (Children) Regulations
1991 require a response to a representation or complaint
within 28 days of its receipt, and this is indeed
too long a period in the context of a child in need
who has no available accommodation or support. The
availability of internal review was not referred to
by the Defendant in correspondence or in the Defendant's
acknowledgment of service, and I have no evidence
before me as to the complaints or review procedure
operated by the Defendant, and in particular how it
would have been operated if it had been implemented
by the Claimant. In these circumstances, I am not
satisfied that there was a suitable alternative procedure
available to the Claimant to challenge the Defendant's
decision.
- In the result, therefore,
the Defendant's decision will be set aside. The Defendant
must reconsider the age of the Claimant. It will do
so on the information now available to it.
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