R (FZ) v LB Croydon [2011] EWCA Civ 59
-or-
Not In My Admin Court
We have written before about age assessments for those who might be under 18 – see most recently our post on R (CJ) v Cardiff CC and, prior to that, our post on the Supreme Court decision in R (A) v Croydon (which remains our only post to take its title from a Rolf Harris chart topper).
The long and short of Croydon is that an assessment that a young person is over 18 may be challenged by JR in the Admin Court.
In FZ the applicant sought to do exactly that, but was refused permission for JR by a deputy High Court Judge.
Permission to appeal to the Court of Appeal was granted, partly to give it an opportunity to consider some problematic aspects of age assessment cases following the Supreme Court’s decision. The Court of Appeal (Sir Anthony May (President of the Queen’s Bench Division), Smith & Aikens LJJ )was therefore asked to address three issues:
- Whether a local authority is obliged to give the person whose age they are assessing an opportunity to respond to provisional adverse findings which they are inclined to make;
- Whether the local authority should in fairness offer the young person the opportunity to have an appropriate adult present at any age assessment interview;
- How the court should address the question whether the factual issue of the young person’s age is arguable. Should it start by assessing the person’s positive claim, or should it first examine the apparent integrity of the local authority’s assessment?
Sir Anthony May (President of the Queen’s Bench Division) gave the judgment of the Court.
On the first issue, the CA held that an applicant should be given a fair and proper opportunity, at a stage when an adverse decision against him is no more than provisional, to deal with important points that may weigh against him [21]. The Court of Appeal was not prepared to be prescriptive of the way in which this might be done and expressly did not require a formal “minded to” letter to be sent in every case.
In FZ’s case fairness could have been achieved by the interviewing social workers withdrawing from the interview room at the end of the initial interview to discuss their provisional conclusions. These could be recorded, with brief reasons, in writing, which could then be put to the applicant to allow him the opportunity to deal with them. The Court of Appeal emphasised that this was not the only way in which fairness might be achieved [21].
On the second issue, the CA considered a variety of situations where a child is to be interviewed where they should be given the opportunity of having an appropriate adult present [23]. For example, in R (NA (Afghanistan)) v LB Croydon [2009] EWHC 2357 (Admin), Blake J held that the applicant should have been given such an opportunity. In the instant case, FZ had claimed to be a child and at the time it was agreed that he was. He was also known to have mental health problems. The Court of Appeal considered that he should have had the opportunity to have an appropriate adult present [23]-[25].
On the third issue, the test for permission, the CA said that at the permission stage in an age assessment case, the Administrative Court should ask whether the material before it raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. If so, permission should be refused. If not, permission should normally be granted, subject to other discretionary factors, such as delay [9]. In FZ’s case, the court did “not consider that the appellant’s factual case taken at its highest could not properly succeed in a contested factual hearing” [29].
Permission to bring judicial review proceedings was granted and, significantly, the claim was transferred to the Upper Tribunal [30]-[32].
Why is that last part significant? Well, in our note of the earlier Croydon case it was suggested that the Admin Court was going to be left with some difficult decisions. In the comments to the Cardiff case, S pointed out that it took up three days of the court’s time and that the Admin Court was not the place for these kinds of hearings. In a somewhat different context, Collins J referred to the “problem” of the Supreme Court’s decision (see [46]-[48] of the post-judgment argument). Now the Court of Appeal has weighed in with what may be perceived to be rather thinly veiled criticism of the Supreme Court’s approach.
[4]. … [T]he court hearing the judicial review claim will often have to determine the fact of a claimant’s age by hearing and adjudicating upon oral evidence. This may be an extensive and time consuming process. The Supreme Court does not seem to have been concerned with the administrative consequences for the court of this. The judgments of Baroness Hale of Richmond JSC and Lord Hope of Craighead DPSC are expressed in terms which appear sanguine about this – see for example Baroness Hale at paragraph 33 and Lord Hope at paragraph 54. The Administrative Court does not habitually decide in orthodox judicial review proceedings questions of fact upon oral evidence, although it has power to do so in appropriate individual cases. It stretches the court’s resources to have to do so more than occasionally. Yet there were, on 12th January 2011, 64 age assessment cases in the Administrative Court’s list at various stages of progress.
Accordingly, the Court of Appeal has given further guidance on the procedure to be followed in age assessment judicial review claims. If an age assessment judicial review claim is started in the Administrative Court, that court will normally decide whether permission should be granted before considering whether to transfer the claim to the Upper Tribunal [31]. The expectation appears to be that these claims will now normally be dealt with in the Upper Tribunal, unless some jurisdictional reason prevents such a transfer [32].
Before the end of November the Court of Appeal couldn’t have shifted this off to the Tribunal. However, the law was – conveniently for high court judges – changed by an amendment to an SI, which now requires the transfer (unless a declaration of incompatibility is being sought).
Makes sense though, especially if they allowed for a lay person (a social worker or paediatrician) to sit on the tribunal to assist with questions with the expert evidence.