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Local Authorities Win Age Assessment Litigation

What role if any should paediatric evidence of the sort produced by Dr Michie and/or Dr Birch have in the process of assessing whether a person is a child? Is the local authority trumped whenever confronted with one of their reports? Must it accept the conclusion of the paediatrician? Can it only disagree if it obtains an "expert" of its own? Or can it simply disagree with the conclusion if it thinks the paediatrician is wrong? These questions, which have bedevilled local authorities over recent years and have caused them unimaginable concern and expense, have been answered fully and emphatically in their favour by Collins J in the Croydon and Kent lead cases.

The background is familiar. Local authorities seek to follow the guidance provided in B v Merton: "the determination of the age of the applicant will depend on the history he gives, on his physical appearance and on his behaviour... the determination of the applicant's age is rendered difficult by the absence of any reliable anthropometric test: for someone who is close to the age of 18, there is no reliable medical or other scientific test to determine whether he is or was over the age of 18". Expert evidence was thin on the ground and of little use in any event. "To obtain any reliable medical option, one has to go to one of the few paediatricians who have experience in this area. Even they can be of limited help..."

To disagree with a paediatrician without consulting its own expert has been to invite a perversity challenge. Local authorities have found themselves on the horns of a dilemma. Should they incur the sometimes considerable costs of engaging their own expert? If so, what type of expert should they use, from what discipline? Or should they contend that there is no such thing as a medical expert on age assessment? By the time the matter came before the Administrative Court in march this year there were 76 issued cases in the High Court all taking essentially the same points and waiting on the result.

The key points in the judgment were:

The decision on age is one for the local authority's age assessors.

The evidence from Croydon and Kent and ... Cambridgeshire show that ... those responsible can be trusted to carry out their tasks properly so that the authorities and the Home Office can rely on their conclusions. (21)

Their decision can only be challenged on usual Judicial Review grounds.

The social workers involved in the decision making process who are employed by the local authorities in these cases have had training and do have substantial experience in assessing the age of UASCs. ... That does not of course mean that their decisions are not challengeable, but it does mean that the court should not readily take the view that they are flawed. (9)

Paediatric reports are not trump cards.

No paediatrician other than the very few prepared to produce reports for claimants will agree to become involved and ... a medical view is not likely to be any more reliable or helpful than that formed by a properly trained and experienced social worker. Nor is it the case that opinions obtained from Drs Michie and Birch can be regarded as reliable. (47)

It is for them [LAs & SSHD] to decide how much weight to attach to such a report and it is in a given case open to the decision maker to attach no weight. I would expect that only in rare cases would such a report persuade the decision maker to reach a different view. (34, 45)

Thus Kent and so the Secretary of State are entitled to attach little if any weight to reports which make assessments based to a significant degree on contradictory [to their own] findings (75)

The decision of Stephen Morris QC to that effect in R(A) v Croydon LBC [2008] EWHC 2921 (Admin) last December was wrong.

Reliance on the homelessness case of Shala was wrong. That case concerned the question how a local authority should respond to medical evidence on a medical issue: on the question whether someone was vulnerable by reason of mental illness. But the assessment of age is not a medical matter.

I do not accept that the approach adopted by Mr Morris was correct. (6)

There is no obligation on the authority to obtain medical advice [in order to disagree with a medical report on age] (47)

Paediatricians are no better placed than social workers to assess age

It is Dr Stern's view that a paediatrician is unlikely to be able to reach a conclusion which is superior to that reached by an experienced social worker, provided, of course, that the social worker is properly trained and experienced and conducted the necessary interview in an appropriate fashion. (25)

The evidence of Dr Birch and Dr Michie is unreliable.

The criticisms made by Dr Stern seem to me to be cogent (32); nor is it the case that opinions obtained from Drs Michie and Birch can be regarded as reliable (47); her observations of matters that social workers cannot observe [sexual maturity, body hair & teeth] are not a reliable basis for assessing age (32)

The flawed approach indicated by this [attributing the slight overweight to farm work etc] is all too obvious. It assumes the correctness of the stated age and tries to marry the weight to that. (67)

Kent's concerns about the quality and accuracy of Dr Birch's observations have some materiality (73); Kent are entitled to look with considerable scepticism at her findings which contradict their own. (75)

Her reports cannot be relied on insofar as they contradict the views of properly trained experienced social workers carrying out Merton compliant assessments (80)

Flawed though they [her reports] may be and in my judgment are, they should be considered since there is always a possibility that they may identify something which could and occasionally should lead to a different conclusion. (75)

Dr Michie

his reports are flawed by his failure to retain any notes of his interviews and observations (24)

It seems that those representing claimants have realised that Dr Michie's reports are likely now to be regarded as unimpressive (24)

My conclusions in relation to Dr Birch, if adverse, would apply a fortiori to Dr Michie (24)

Nor is it the case that opinions obtained from Drs Michie and Birch can be regarded as reliable. (47)

Local Authorities can rely upon the evidence of Dr Colin Stern in support of a contention that paediatric evidence does not take matters much further.

I prefer the views of Dr Stern to those of Dr Birch. (33)

Fortunately for the authorities, Dr Stern has given comprehensive evidence which can now be relied on for all cases subject, of course, to circumstances which may be particular to any such case. (47)

That said, they do not generally need to obtain their own report from a paediatric expert.

Collins J agreed with Croydon's position that a person's age could not be determined by medical science.

Permission to appeal was refused, and no stay was granted in any claim other than those of A, M and WK.

Public funding to seek permission to appeal is nonetheless being sought.

All other cases should now proceed.

Collins J made an express order that all age dispute claims should progress on the law as it currently stands (i.e. applying his judgment and the Court of Appeal's judgment in A v Croydon; M v Lambeth [2008] EWCA Civ 1445). Collins J made an order that Claimants in such cases should not be removed from the UK pending the outcome of the House of Lords appeal in A v Croydon; M v Lambeth. He also observed that a similar order or undertaking should be made in relation to the age dispute cases which have been issued.

Anonymity orders were not made in respect of either claimant.

Permission to appeal, sought by each claimant, was refused.

Jon Holbrook appeared as Junior Counsel for Kent. Bryan McGuire and Peggy Etiebet appeared as Counsel for Croydon.

Click here for full text of the judgment