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By SJM
24/12/2011

When Age is Not Just a Number

Regular readers may have noted that these pages have been quiet on the subject of age assessments and the entitlement to services under the Children Act 1989. The fact-finding hearing in The Queen (KN) v LB Barnet [2011] EWHC 2019 (Admin) was heard as long ago as July 2011 but it is worth underlining here as an example of the way the Administrative Court deals with age assessments in the light of the guidance given by the Supreme Court in A v Croydon.

KN was the victim of sexual abuse in her home country, the Democratic Republic of Congo and she was later smuggled to the UK, where the abuse continued. KN eventually managed to flee her captors and, after a period in foster care, she applied to Barnet for assistance. KN asserted that she was a child with a date of birth of 23/8/1993, a date that had been accepted by the Home Office. Nevertheless, Barnet’s Social Services department took the view that KN appeared significantly more mature than her claimed age and they obtained a Forensic Dental Assessment, which largely corroborated Barnet’s view that she was over 18. Barnet accordingly concluded that KN was over the age of 18 at the relevant time and she was therefore ineligible for s.20 Children Act services. Barnet’s decision resulted in this application to the Court.

HHJ Pearl (sitting as a Deputy High Court Judge) reviewed the various evidence available to determine KN’s age and he was particularly critical of Barnet’s reliance both on the report of an inexperienced social worker and on the Forensic Dental Assessment. The Judge referred to the Home Office Consultation Paper “Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children” (May 2007) and commented that the results of dental X-Rays carried a margin of error of up to 6-7 years. As such, the dental assessment in KN’s case could not be determinative of her age.

The key witness as far as the Judge was concerned was Dr Helen Bamber of the Medical Foundation for the Care of Victims of Torture. Dr Bamber had had numerous consultations with KN and, drawing on her experience of treating women in similar circumstances, she believed that KN was about 17 years of age as at the date of the hearing. This reflected what KN had earlier asserted about her age.

HHJ Pearl accepted Dr Bamber’s assessment and concluded that KN’s date of birth was as stated by the Claimant and that she was entitled to s.20 Children Act services.

Comment: this case is useful not only because it showcases the innovative fact-finding role of the Admin Court but it also demonstrates that on the question of age assessments, there can be no substitute for the evidence of an expert who is well-known to the Claimant. The other point of interest is that the burden of proof will fall on the Claimant to demonstrate that he or she is under 18 only if the Court is unable to reach an assessment on the available evidence. Although the issue did not arise in KN’s case, it is difficult to see how she could have satisfied the Court of her age given that the Court had excused her from giving evidence because of the likely trauma she would suffer from participating at the hearing. There are likely to be other applicants in a position of vulnerability similar to KN so it will be interesting to see how the Courts grapple with the burden of proof point in the future.

 

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.

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