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A grown-up approach to age assessments

The Court of Appeal has ordered that a young asylum seeker's challenge to Croydon's age assessment will be struck out or stayed unless he consents to an x-ray examination of his teeth.

The Nigerian asylum seeker, "Y", claimed to be 16 but when Croydon's social workers assessed him, on the basis of his physical appearance, they concluded he was an adult. Y judicially reviewed Croydon's age assessment and after he obtained permission to proceed Croydon sought to instruct Graham Roberts, Visiting Professor at King's College London Dental Institute, to x-ray Y's teeth and give an expert opinion on his age. When Y refused to undergo the assessment Croydon applied unsuccessfully to have his claim struck out unless he consented to the dental age assessment.

However, the Court of Appeal allowed Croydon's appeal on the grounds that 'the fundamental common law right of a defendant to defend itself in litigation ... applies in any litigation', including public law proceedings where the court needs to make determinations of fact (§17). This principle was most fully expressed by Scarman LJ in Starr v NCB [1977] 1 WLR 63 and it applies to any case where 'expert testimony is significant' (§11).

In the instant case the Master of the Rolls reiterated the Starr principle that the right of a defendant to instruct an expert must recognise:

'the defendant's right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses'. (§11)

The Master of the Rolls also reiterated what had been said in Starr that:

'defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who, they are advised, would be the best doctor in the circumstances to carry out that examination.' (§12)

Y had also refused to be (a) re-assessed by Croydon's social workers and (b) seen by a consultant psychiatrist of Croydon's choosing. Psychiatric evidence became relevant after Y obtained permission to rely on two medical experts who had diagnosed Y as suffering from complex PTSD, a diagnosis Croydon had reason to dispute.

The Court of Appeal ordered that Y's claim would be struck out or stayed unless he co-operated fully with Croydon in the obtaining of assessments undertaken by an odontologist (Professor Roberts), its social workers and a psychiatrist.

Jon Holbrook acted for Croydon LBC. Click here for the judgment.

Jon has previously acted in other age assessment cases for other local authorities in successfully arguing that evidence obtained by young asylum seekers was not reliable:

R(WK) v Kent CC [2009] EWHC 939 (Admin) in which the High Court concluded that opinions obtained from Drs Michie and Birch (who at the time were frequently instructed by young asylum seekers) could not be regarded as reliable (§47).

R(AM) v Solihull MBC [2012] UKUT 00118 in which the Upper Tribunal concluded that evidence from three independent social workers (Simon Shreeve, Carey Baff & Elaine Fehrman) instructed by the young asylum seeker were not reliable.