Hot on the heels of the KN v Barnet report is the Court of Appeal judgement in R (CJ) v Cardiff CC [2011] EWCA Civ 1590 (judgement handed down on 20/12/2011). The High Court proceedings were reported here.
The important aspect of this appeal is the way the Court deals with the difficult issue of burden of proof. The approach approved at first instance and in KN was that the burden fell on the Claimant to prove his age, if the Court was unable to make an assessment. The Court of Appeal has now established that there is no burden and it reached this conclusion (para 23):
“In the present case there was a range of powers and duties exercisable by public authorities dependent upon the single issue of age. Where the issue is whether the claimant is a child for the purposes of the Children Act it seems to me that the application of a legal burden is not the correct approach. There is no hurdle which the claimant must overcome. The court will decide whether, on a balance of probability, the claimant was or was not at the material time a child. The court will not ask whether the local authority has established on a balance of probabilities that the claimant was an adult; nor will it ask whether the claimant has established on a balance of probabilities that he is a child.”
In the light of the concerns we raised in the KN report, this conclusion is reassuring.