Expert evidence in age assessment cases

01 Jan 2018

Health and Social Care, Housing

R (R) v London Borough of Croydon [2011] EWHC 1473 (Admin): judgment of Kenneth Parker J.

Since the Supreme Court held in R (A) v LB Croydon [2009] UKSC 8 that the determination of the age of a person claiming to be a child in need is ultimately a matter for the Courts rather that local authorities, the Judges of the Administrative Court have had to tackle the very difficult question of assessing the age of an unaccompanied asylum seeking child.

What could almost be described as a cottage industry has arisen in the last few years with paediatricians purporting to be able to assess the age of a child by various methods. One expert in particular, Dr Diana Birch, has been extensively used by Claimants over the last few years. Although her evidential methods were heavily criticised by Collins J in R (A) and (WK) v LB Croydon and Kent CC [2009] EWHC 939 (Admin), this was the first time she gave live evidence.

Dr Birch’s statistical assessment of the Claimant’s age was heavily criticised by Kenneth Parker J. He accepted Dr Stern’s evidence and agreed that maturity is not the same as age. He said:

[51] “In summary, I accept Dr Stern’s basic criticisms of Dr Birch’s statistical methods. In the absence of the blinded studies, based upon appropriate statistical methods supported by the assistance of a qualified bio-statistician these statistical calculations cannot, in my judgment, safely be relied upon.

[52] I do not doubt, nor did Dr Stern, that Dr Birch has very great experience in working with children and, in particular, with adolescents and therefore has accumulated over a number of years very considerable experience and expertise that would bear upon her credibility as an assessor of the age of such young persons. If Dr Birch had employed what I might call conventional techniques for assessing age, her evidence would have carried very great weight. However my concern is that Dr Birch, on the basis of the evidence that she gave to the Court, has in my judgement an erroneous confidence in the accuracy and reliability of the statistical methods that she has employed. That misplaced confidence undermines the other evidence that she has given. It appears to me that that confidence leads her to rely primarily upon her statistical methods. Therefore she is very likely to be biased in her assessment of age by reason of that misplaced confidence. Therefore it seems to be that I must approach with very great caution the conclusions that she has reached. In short, I do not believe that Dr Birch’s assessment of the age of the Claimant is any more reliable than that of a social worker. Indeed, her assessment, in my judgment, is likely to be less reliable because she places such considerable confidence in her statistical methods that I conclude, on the basis of Dr Stern’s essentially unchallenged evidence, to be not scientifically established and unreliable.”

Following this decision, it will be hard for any Claimant to rely on Dr Birch’s evidence as being a reliable indication of age. Her statistical methods have been discredited and her reliability as a witness as a whole undermined.

Catherine Rowlands, instructed by DMH Stallard, appeared for the Defendant, Croydon LBC.

Click here for full text of the judgment