I suspect that – at some stage – many readers of this blog will have pretended to be older than they actually are, usually to obtain alcohol or to get into night-clubs for the purposes of obtaining more alcohol/meeting the opposite (or same) sex with the hope (often unfulfilled) of nookie. Oh the joys of youth. At a certain point though, we tend to start going the other way and suggesting that we are in fact younger than we actually are. With the ever increasing amounts of gray appearing in my hair, this is a feeling with which I can sympathise.
But, on a more serious note, ascertaining the age of persons applying for assistance to a local social services authority is an important issue. As Chief has previously explained, being under 18 (and, hence, a child) opens the door to the grotto of goodies that is the Children Act 1989. Being over 18 leads to the doom and despair of adult social services. In many, if not most cases, it shouldn’t be difficult to find out the age of a person. The difficult cases tend to be those involving unaccompanied asylum seeking “children.”
In R (A) v Croydon the Supreme Court held that whether someone was over or under 18 was a fact capable of objective determination by the court; so, if the authority determined you were 21 and you disagreed, you were entitled to issue proceedings in the Admin Ct to have this point resolved by a Judge, after hearing any relevant evidence. What A left open was who would bear the burden of proof?
In R (CJ) v Cardiff County Council [2011] EWHC 23 (Admin), Mr Justice Ouseley had to resolve this question. The facts aren’t that important – basically, the issue is whether CJ was 15, 21, or some other age at the relevant time – what matters is how the Judge approached the question of burden of proof.
The evidence was finely balanced and neither side had established their primary cases (CJ couldn’t prove he was 15 and Cardiff couldn’t prove he was 21). Given that it was CJ who was seeking to establish that the authority were acting unlawfully by not supporting him under the 1989 Act, the burden fell on him to establish this. That, in turn, meant that the burden of proof as to the age of CJ rested with him.
As Ousley J recognised, this is unlikely to be a major issue in many cases; since in many cases it will be enough to establish that the claimant is in a particular age band (say, 17-19), at which stage he is likely to be given the benefit of the doubt. But, for those borderline cases, it comes back to “he who asserts must prove”.
It is interesting because Langstaff J in MC v Liverpool said that the court wasn’t concerned with who had the burden of proof, rather it was an assessment where neither side had the burden. I’m not sure I fully understand how he distinguishes MC; appears to me that he just doesn’t agree with Langstaff and is being polite.
I think another interesting thing about this case is that Ouseley J – who sits on SIAC – appears quite comfortable dealing with the question of an immigrants credibility and the assessment of their age.
I wonder if other High Court judges will be as thorough and comfortable. I very much doubt it. I can’t see them being lumbered with age assessments for too much longer (this was a three day hearing after all! What a waste of court time and money).
I think you can square MC v Liverpool and CJ v Cardiff in that:
(a) both make clear that the court isn’t bound to accept either argument (i.e. it isn’t that the claimant is either 15 or 21) but is able to make its own decision as to age – so, in reality, the burden of proof is unlikely to come into play in many cases;
(b) but, in the exceptional case (as in CJ) where neither party can prove their case and the court doesn’t feel able to make a decision of its own, then the “tie break” is to apply the burden of proof.
Having had a think about it I see the logic of your interpretation of the judgment. However, the problem I still have is that this was plainly not that case. It was far from close. O
r, to put it another way, if the court can’t be sure of a person’s age in this case then it will never be sure, which does render what Langstaff said in MC irrelevant.
It goes back to my point that the Admin Court is clearly not the place for these hearings.