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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 15
A53/24
OPINION OF LADY CARMICHAEL
In the cause
ABDRAMAN ALI AHMAT (AP) (FE)
Pursuer
against
ABERDEENSHIRE COUNCIL
Defender
Pursuer: Halliday; Drummond Miller LLP
Defender: Blockley; DWF LLP
7 February 2025
[1]
In this ordinary action the pursuer seeks declarator that his date of birth is
10 November 2006. In July 2023 the respondent's social workers carried out a brief age
assessment and concluded that he was clearly over the age of 18 at that time. That meant
that the respondent had no duty to accommodate him as a child.
Procedure
[2]
These proceedings began as a petition for judicial review. The Lord Ordinary
intimated that he was minded to refuse permission because the petition was incompetent,
following the approach in Abdullah v Aberdeenshire Council [2024] CSOH 8. Rather than
2
proceeding to a hearing on permission, the Lord Ordinary put the case out by order for
the purpose of ascertaining parties' views on whether the power of transfer in RCS 58.16
should be exercised. On the opposed motion of the petitioner, he appointed the proceedings
to proceed as an ordinary action.
[3]
The pursuer averred that if the defender accommodated him as a child before his
18th birthday, he would be entitled to remain in that accommodation until the age of 21 years
by virtue of section 26A(3) of the Children (Scotland) Act 1995 ("the 1995 Act") and article 2
of the Continuing Care (Scotland) Order 2015. He amended to include a conclusion for
interim declarator, but never moved a motion for an interim remedy.
Is the action academic?
[4]
The case came to proof on 26 November 2024. By that time the pursuer was, on his
own averments, already aged 18. I raised with parties the question of whether the summons
raised only an academic issue. The defender had no plea to that effect.
[5]
Counsel for the pursuer referred to R (GE (Eritrea)) v Secretary of State for the Home
Department [2015] 1 WLR 4123. In that case, like this, the claimant had on her own account
turned 18 by the time of the proceedings. The deputy High Court judge dismissed the
proceedings on the basis that the claimant had never been a "relevant child" for the purpose
of section 23A of the Children Act 1989, and so could not be regarded as a "former relevant
child" for the purposes of section 23C, even if it were later determined that she had been of
an age such that she should have been looked after by the local authority. That being so the
local authority could have no continuing obligations to her. The Court of Appeal agreed
with that analysis, but found that the deputy judge had nonetheless erred in dismissing the
proceedings, rather than proceeding to make an assessment of the claimant's age.
3
[6]
The Court of Appeal accepted that the local authority had discretionary powers to
make good any unlawfulness that it had committed in the past by dint of not having treated
someone as a child who ought to have been treated as a child: paragraphs 54, 55, 70 and 73.
The claimant had not made any application to the local authority for it to exercise such a
discretion in her favour. In those circumstances the court accepted that the question of
the claimant's age was not academic, allowed the appeal and remitted the case to the
Administrative Court for the age of the claimant to be determined.
[7]
Counsel for the pursuer referred to section 25(3) of the 1995 Act which provides:
"A local authority may provide accommodation for any person within their area
who is at least eighteen years of age, but not yet twenty-one, if they consider that
to do so would safeguard or promote his welfare."
If I were to find that the pursuer turned 18 on 10 November 2024, that would open the door
to the exercise of their discretion under that provision. The decision in GE (Eritrea) indicated
that there was also a non-statutory discretion to seek to make good any earlier unlawful
treatment of the pursuer. Counsel for the defender submitted that the only discretion
available to the defender was that under section 25(3). There was only a remote possibility
that the pursuer would ask the defender to exercise that discretion in circumstances where
he had taken no steps to seek an interim remedy in these proceedings. His failure to seek
an interim remedy suggested that it was unlikely that any exercise of discretion would be
required in order to safeguard or promote his welfare.
[8]
I concluded that the question of the pursuer's age was a matter that continued to be
in dispute between him and the defender, and which was relevant to the future exercise of
the power conferred by section 25(3). Following the approach in GE (Eritrea) I proceeded
to hear evidence directed to assessment of the pursuer's age.
4
Agreed facts
[9]
The pursuer is a national of Chad. He entered the United Kingdom by boat on
12 June 2023. He was detained by Home Office officials on arrival.
[10]
On 13 June 2023 two Chief Immigration Officers, Grady Parkhill-Flemming and
Luke Enness interviewed the pursuer. A social worker, Lovemore Dambanjera, was also
present. An Arabic interpreter was provided over the phone. The interview took place
at a processing unit called "Western Jet Foil" in Dover. During the interview, the pursuer
provided a document to the officers.
[11]
On 17 May 2024 this court granted commission and diligence for the recovery of that
document. On 11 July 2024 Hannah O'Connor, from the Home Office's Illegal Migration
Intake Unit, signed a certificate confirming that the Home Office were no longer in
possession of the document the pursuer avers is his birth certificate. Ms O'Connor stated
within this certificate that the document was last seen by Grady Parkhill-Flemming on or
about 13 June 2023 at Western Jet Foil, Dover when it was "sealed in an evidence bag". The
document has since been lost. The Home Office do not possess a digital or paper copy of
the document.
[12]
Shortly after his arrival in the UK, the pursuer claimed asylum. The screening
interview in relation to that claim took place on 15 June 2023.
[13]
The Home Office provided the pursuer with accommodation in the Hampton by
Hilton hotel in Westhill, Aberdeenshire. The pursuer notified the manager of the hotel
that the date of birth assigned to him by the Home Office was incorrect. In July 2023, the
defender's social workers attended the hotel to interview the pursuer. The interview took
place in the hotel reception. The social workers in attendance were: Natasha McDuma,
Lee Waddell, and Meiyuk Hung. An Arabic interpreter was provided by telephone.
5
[14]
On 21 July 2023 the defender sent the pursuer a letter informing him that the
defender's social workers had concluded that he was significantly over 18 years of age.
Ms Waddell prepared a brief enquiry report outlining the reasons for the conclusion reached
in relation to the pursuer's age.
[15]
The Scottish Government has issued guidance (6/3) which outlines good practice to
support social workers in undertaking age assessments.
Evidence
[16]
The pursuer gave evidence himself, and led evidence from Mr Luke Enness. The
defender led evidence from Ms Natasha McDuma and Ms Lee Waddell.
The pursuer's case
The pursuer
[17]
The pursuer said that his date of birth was 10 November 2006. The calendar used in
Chad was the Gregorian calendar. When he arrived in the United Kingdom he was "sixteen
and something", but had not turned 17. He left Chad in October 2022. His father was killed
when he went to North Chad in 2017. There were rebels in that part of the country. He
was 11 when his father died. His mother died as a result of ill-health in 2016. He was 10
when she died. He went to his maternal uncle and then stayed with his grandma. He had
no siblings. He had never celebrated his birthday as a child. He is of the Muslim faith, and
gave evidence that such celebrations were regarded as haram, or sinful.
[18]
The pursuer's evidence was that he had not attended a state school, but a khalwa,
attached to a mosque, at which he studied the Quran. His father took him there when he
was 8 years old. Before that he had not been aware of his age, but at that time his father had
6
told him he was old enough to start attending and learning. When he first attended the
khalwa he did not have a birth certificate, but the institution requested one. His father
obtained a birth certificate in 2016 and provided it to the khalwa, where the information
from it was noted. It was returned to his father.
[19]
When he arrived in the United Kingdom, the pursuer gave his birth certificate to
the officers who were interviewing him. They had asked him if he had any information
that proved he was the age he claimed to be. He had had it folded up and stored between
his phone and the phone cover. He said he had it wrapped in plastic so that it would not
get wet. It was a small, long piece of paper with the name of his father, mother and two
witnesses on it. He initially said that it was entirely handwritten, and then said that he was
not sure about that, and had not checked it properly. It was written in French. It contained
information other than the identity of his father and mother, but he could not remember
what that was.
[20]
The birth certificate was kept in his father's closet. When the pursuer went to stay
with his grandmother, they took all his father's documents. His grandmother kept it in a
large bag under her bed. When the pursuer left Chad, he travelled with his paternal uncle,
who kept the document with him. Some months before the hearing, the pursuer learned
that the Home Office had lost the document.
[21]
The pursuer said that he had left Chad because he had a relationship with a girl
called Aisha, and her family wanted him dead. Aisha studied at a school near the khalwa.
Her family was the "governing family". Her brothers saw them meeting and after that the
pursuer had problems with them. There was a physical altercation involving the pursuer
and Aisha's brother. The pursuer was taken to the police station and was detained there for
a period and then released.
7
[22]
After leaving Chad the pursuer spent a month in Libya, then travelling by boat
to Italy, where he spent 2 months before crossing the border into France. The pursuer
spent 4 or 5 months before crossing to the United Kingdom. His first attempt at crossing
was from Calais, but the vessel was intercepted and turned back. The pursuer then went
by train to Boulogne where he and others slept in the forest before making a further attempt
at crossing. He described the vessel on which he travelled as a plastic boat with an engine,
which I infer to have been a rigid inflatable boat. The boat left France at dawn and arrived
at the United Kingdom around noon. The journey was frightening. The French authorities
chased the vessel but ultimately gave up the chase. They met another French boat which
tried, unsuccessfully, to turn them back towards France. There was water coming into the
boat, and the pursuer thought he was going to die. People were throwing their bags into
the water.
[23]
When the pursuer arrived the authorities gave him clothes and let him rest for the
night, then interviewed him early the following morning. He was nervous. The interview
related only to his age. He thought those interviewing him were two men and one woman.
He understood the Arabic interpreter. The record of the interview suggested that he had
initially said he was born in 2003, before saying that he was born in 2006. The pursuer
denied ever having said that he was born in 2003. It suggested also that the pursuer had
said, variously, that his father had told him his date of birth 5 years earlier, and 5 months
earlier. The pursuer initially said that he could not remember whether he had said that his
father told him his date of birth. He had not said that his father told him his date of birth
either 5 years or 5 months earlier. He went on to say that his father had told him his date
of birth in 2016, and he had told the immigration officers that. The officers had concluded
8
that his date of birth was 10 November 1996, and he had told them that that was not his age.
That response was recorded in the record of the interview.
[24]
In his second interview he had confirmed that the 1996 date of birth was correct
because he had been told that the Home Office had to go by the date of birth allocated to
him in the first interview. To end the interview he had to agree that that was his date of
birth.
[25]
The interview with the defender's social workers took place in the hotel reception.
There were people sitting near them, but they had a space to sit in. Other people could hear
what was being said because the interpreter joined by phone and the pursuer had to raise
his voice so that the interpreter could hear it. The interview should have taken place in a
private room, but there was no other solution. He was not offered a supporter for the
interview. The social worker explained that the purpose of the interview as an age
assessment. He felt that he was listened to.
[26]
The pursuer met the social workers on a second occasion, when they gave him a
letter and said that they had concluded that his claimed age was not his real age. He was
not asked to comment on their reasons for reaching that conclusion. He denied having told
the social workers that it was his mother who had told him his date of birth, although that
was the response noted by the social workers in a document headed "Brief Enquiry [As to
Age]". He thought he had said that it was dad who had told him.
[27]
The pursuer said that he had asked his maternal uncle, who resided in Chad, about
obtaining another birth certificate. His uncle said that that it would be very difficult. The
pursuer would have to speak to immigration, and they might ask about his whereabouts,
say that he was "wanted", and might "deport [him] again". The reference to "immigration"
was to the authorities in Chad. He had also asked his uncle to obtain a letter from the
9
khalwa confirming his attendance there. Every time the pursuer asked him, his uncle said
that he was busy, so that the pursuer got "fed up" and did not pursue the matter with him.
[28]
In cross-examination, the pursuer said that he attended the khalwa from when he
was 8 years old until 2022. When asked how old he was in 2022 he did not immediately
answer, but said that he had never cared about how old he was until he came to the United
Kingdom. It was something he had never previously regarded as important.
[29]
During the journey from Chad to France the pursuer's uncle kept the pursuer's birth
certificate. He had a small bag in which he kept it, and gave the document to the pursuer
in France. When the pursuer first arrived in Italy he was taken to a camp, then transferred
to another camp before becoming homeless. He was fingerprinted in Italy. His uncle had
showed the document to the Italian authorities when the asked for identification. They took
the details from it and then handed it back to the pursuer's uncle. The pursuer's uncle gave
him the document just before he boarded the boat to come to the United Kingdom on the
first occasion he attempted the crossing. On his return to France on that occasion, the
authorities had not taken any details or fingerprinted him. The authorities let him and
others go and they went to the forest. The document remained with the pursuer. A charity
had provided a waterproof bag which was intended to keep phones and documents dry.
The document itself was a "long paper" which he had folded down so that it would fit
between his phone and the phone cover. The report of the age assessment by immigration
officers said that the document recorded his date of birth as 23 November 2006, but that was
definitely not correct. The date on it was 10 November 2006.
[30]
The maternal uncle in Chad to whom the pursuer had referred in examination
in chief was called Mohammed. The paternal uncle with whom he had travelled was
Abu Bakir. Referred to a record of his interview with Home Office officials on 15 June 2023,
10
the pursuer said he had been doing his best to tell the truth. He accepted that his uncle,
Abu Bakir, had provided money for the people smugglers in France to the extent of 400,
and that the pursuer himself had paid them a further 200 to bring the pursuer to the United
Kingdom by boat. Abu Bakir now lived in France. It would have been difficult for him to
assist, from France, with obtaining a replacement birth certificate. In relation to making
contact with the khalwa, that would be easier for his uncle Mohammed to do, but he had
never done so, despite understanding the pursuer's situation in the United Kingdom.
Luke Enness
[31]
Mr Enness is a Chief Immigration Officer. He was attached to the Western Jet Foil
Unit in Kent in June 2023. On most days he would carry out initial age assessments. The
purpose of such assessments was to choose the correct path for a person seeking to enter
the United Kingdom. There were different processes for adults and for minors. He had a
"vague" recollection of interviewing the pursuer for that purpose. During the interview
the pursuer had been alert and seemed calm. Mr Enness believed that the pursuer gave his
date of birth as 10 November 2006. He did not recall the pursuer mentioning 2003 as the
year of his birth. He did not recall whether the pursuer had said that his father had told
him his date of birth either 5 months or 5 years previously.
[32]
The report of the age assessment recorded an observation that the pursuer had
evidence of shaving which was "not a feature with Sudanese children under the age of 18."
Counsel questioned why that observation appeared, as the pursuer was from Chad.
Mr Enness said that had been an observation offered by the social worker, Mr Dambanjera.
Evidence that the pursuer was shaving would have been a factor in Mr Enness' assessment.
11
[33]
Mr Enness could not recall with "great accuracy" the document proffered by the
pursuer. He did not believe that it looked like a birth certificate. If it had looked like a birth
certificate he would have given it more weight in assessing the pursuer's age. The record of
the assessment narrated that the document was obtained in 2016. That information would
either have come from the pursuer, or from the document itself. The record read, "It was
obtained in 2016 but looked freshly new with new ink for a handwritten document 8 years
[sic]". Without seeing the document, Mr Enness could not say how he had gone about
assessing the age of the document or the writing on it.
[34]
Under the heading, "Summary and decision" the report narrated,
"Abdelrahman provided slip he said was a birth certificate but nothing on it
to suggest that it was an official document from Chad. The document looked
to [sic] fresh to have been obtained 8 years ago."
Mr Enness' evidence was that he did not believe that the document presented was any sort
of official document or birth certificate. He had seen many birth certificates from Chad, and
it did not resemble a birth certificate from Chad. Mr Enness had sealed the document in an
evidence bag and attached it to form IS91 (a form authorising detention). He handed it to
the office of the bronze commander of the small boat operation command, a department
also located at the western jetfoil. He did not remember which individual he handed it to.
The document should have been uploaded to the record management system and case
progression system. That was a different process form the one described in the Home
Office's policy on the retention of valuable documents. He had, however, expected that the
document would eventually be retained in the valuable document bank in accordance with
that policy.
[35]
In cross-examination, Mr Enness explained that it was his colleague
Mr Parkhill-Flemming who completed the form recording the assessment of age.
12
Mr Parkhill-Flemming was the assessing officer in the case. A box had been checked beside
the statement:
"Two officers (one of at least chief immigration officer (CIO), higher executive
officer (HEO) or higher officer (HO) grade) have separately determined that their
physical appearance/demeanour very strongly suggests that they are significantly
over 18 years of age and no other credible evidence exists to the contrary."
Throughout the interview Mr Enness had the opportunity to correct any statements that
he disagreed with. He did not believe that he had disagreed with any of the statements
recorded by his colleague, and he was content that the report was accurate. Had there
been a disagreement between him and Mr Parkhill-Fleming as to whether the pursuer
was a minor, he would have been treated as a minor. He had not double checked the
report - particularly with regard to what was recorded as to the date of birth on the slip
of paper - before it was finalised. The date "23 November 2006" would have been recorded
by his colleague. If Mr Enness had seen it and disagreed, he and his colleague would have
"returned to the document". He could not recall if that had happened in this case. If he had
seen a discrepancy he would "potentially" have raised it.
[36]
Mr Enness had no recollection as to whether the document provided by the pursuer
showed any signs of water damage, or of folding, or whether it had been stored by the
pursuer in a waterproof bag. He might have recorded tears or marks of folding, but would
not necessarily have done so. Asked whether he would have described the document as
seeming to be new if it had shown such signs, he said, "That is very dependent."
[37]
Referred to the observations about the pursuer's appearance recorded in the report,
which included observations that he had crows-feet in the corners of his eyes when he
spoke, and visible nasolabial lines, Mr Enness said that the physical observations were
"presented" by Mr Dambanjera. Had Mr Dambanjera's opinion as to the pursuer's age
13
differed from that of the immigration officers, it was the view of the immigration officers
that would have prevailed.
The defender's case
Natasha McDuma
[38]
Ms McDuma is a social worker employed by the defender. She received a BA in
social work in South Africa in 1994 or 1995. She practised as a social worker in South
Africa for 4 years. She has been registered with the Scottish Social Services Council
since about 2003 and has acquired a number of qualifications in the United Kingdom.
Ms McDuma has worked for the defender since 2008. She has worked with unaccompanied
young asylum seekers in the context of children's services since February 2022. In
March 2022 she undertook 2 or 3 days of online training relating to age assessment.
JustRight Scotland provided the training. By the time of the proof she had conducted 25
or 30 age assessments. When she met the pursuer in 2023, she had carried out between three
and five age assessments.
[39]
In July 2023 Ms McDuma received a referral from Mears Housing who were
providing the pursuer's accommodation, because the pursuer had said that he was a minor.
She arranged to meet him, along with her colleagues Lee Waddell and Meiyuk Hung. An
Arabic interpreter assisted by telephone. That was normal practice, as it was more cost
effective than having an interpreter present. The questions for interview were planned
in accordance with a format about which Ms McDuma had learned at the training she
attended. She could not recall who had taken the lead with questions. If an answer
required clarification, any of she or her colleagues could ask a follow-up question.
14
[40]
The interview took place in the reception area of the hotel. Ms McDuma had
requested a private room, but none was available. She did not regard that as satisfactory.
The hotel had only recently been allocated as accommodation for asylum seekers, and there
was no system in place to provide an interview room. Her team had subsequently had to
"fight" to obtain that facility. She had not wished to delay the interview, because of the risk
involved in leaving someone who might be a child in unsuitable accommodation. She had
made sure that the area was clear of other people. It was a space to the rear of the reception
area. There were people in the reception area, but there were no other people in the part of
it where they conducted the interview. The pursuer did not appear to be distressed by the
lack of a private room. He spoke quietly, tried to hide his face and did not make eye contact.
The social workers had to ask some questions a few times to get an answer. The pursuer
looked worried and very thin. His skin looked very dry. He had receding hair, and had
creases or lines around his eyes and his mouth. Handwritten notes were taken and a report
prepared from them. The meeting took between 45 minutes and 1 hour. The pursuer was
not provided with an appropriate adult.
[41]
After the interview, the social workers conducted a meeting, either in person or
using Teams; Ms McDuma could not remember which. All three agreed that the pursuer
was more than 18 years old. If there had been any disagreement the pursuer would in the
first instance have been accommodated as a child, and the social workers would have gone
on to carry out a full Merton age assessment; that is an assessment complying with the
Ms Waddell, who drafted the report, had signed it. Through oversight
Ms McDuma had not done so, but she agreed with its content.
15
[42]
The report (7/1) was headed "Brief Enquiry [As To Age]" and contained guidance
on making a provisional decision as to age. It included the following:
"This guidance should be considered where assessors are determining whether
a decision can be made about a person's age based on their presentation and a
brief enquiry or whether a full age assessment is required."
[43]
Ms McDuma met the pursuer again on 21 July 2023 to explain the outcome of the
assessment to him. She could not remember whether he said anything during that meeting.
He appeared annoyed and sad.
[44]
In cross-examination Ms McDuma said that she had no specialist knowledge or
expertise in the assessment of young men from central Africa. She was familiar with the
Scottish Government publication "Age Assessment Practice Guidance for Scotland" (6/3).
The recommendation that two interviews be carried out several days apart did not apply
where after a brief enquiry age assessment social workers agreed that the individual was
more than 18 years. Ms McDuma said that the interview included questions that afforded
the pursuer an opportunity to give an account of his life, including questions about school
attendance, and about his parents and any siblings. By the time of the second meeting the
decision was final, and the second meeting was not intended as an opportunity for the
pursuer to make further representations which might alter the decision.
[45]
Ms McDuma accepted that the 1996 date of birth referred to in 7/1 was a date
assigned by the Home Office, rather than one offered by the pursuer. She accepted also
that a shy child might avoid eye contact, and that a teenager might have a defined jawline
and facial hair.
[46]
In re-examination Ms McDuma explained that during her time working in South
Africa she had encountered men from central Africa. At the time she assessed the pursuer's
age she was working with young men from central Africa, although from Sudan, rather
16
than Chad. The defender was looking after boys from Sudan at that time. It had not
been necessary to proceed to a Merton assessment because the social workers were all in
agreement following a brief enquiry assessment. She would not normally expect someone
aged 16 to have a receding hairline or skin that appeared to be aged. She had observed
those features when she met the pursuer.
Lee Waddell
[47]
Ms Waddell is a social worker employed by the defender, and works with a
team dealing with unaccompanied child migrants. She has worked with that team since
April 2023. She obtained a degree in social work in 2017. In May 2023 she undertook the
course on age assessment described in Ms McDuma's evidence. Before meeting the pursuer,
she had been involved in two age assessments, and by the time of the proof in more
than ten.
[48]
A brief enquiry would be the first step taken when the defender was made aware
that a person who was being treated as an adult might be a child. The brief enquiry would
result in a decision as to whether a full age assessment was required.
[49]
Ms Waddell's evidence in chief about the arrangements to interview the pursuer
was consistent with that of Ms McDuma. She too stressed the need for expedition to avoid
the risk of a child being accommodated in an adult facility. She did not recall the pursuer
having to raise his voice during the interview. Ms Waddell recollected that the pursuer had
a distinctive receding hairline, and strong features. His skin was coarse with "crows feet"
wrinkles. He had a prominent Adam's apple, and was quite slimly built. He appeared to
be quite guarded. He was very matter of fact in answering questions and at times appeared
not to want to provide further information. He did not present as anxious or overwhelmed
17
as one would typically see with a young person. She accepted that he might have been
guarded because of where the meeting was being held, although she could not recall
whether that was something she had thought about at the time. Based on her observations
of his physical appearance and demeanour, she formed the view that he was over the age
of 18.
[50]
Ms McDuma had agreed with and approved Ms Waddell's report. Ms Waddell
did not recall the pursuer saying anything at the second meeting, but she was satisfied that
he understood the outcome of the assessment. She found the Scottish Government practice
guidance helpful in her practice. Counsel asked Ms Waddell about a passage at page 9 of
the document, headed "Whether to undertake an age assessment":
"The key task at this stage is to decide whether an age assessment is required,
as quickly as possible, to enable the individual to be transferred to the most
appropriate accommodation and care arrangements based on their likely status
as an adult or child.
The decision as to whether it is necessary to undertake an age assessment is a
professional judgement based on the individual's presentation and circumstances,
physical appearance and demeanour. In making this decision, social workers
should be alert to any unconscious bias (how our experiences of family, society
and culture etc. have shaped our views) and ensure that decision making is
reasoned and robust.
Normally there will be no need for a prolonged inquiry into a person's age, if it
is very obvious that the person is over the age of eighteen years. As such, if the
physical appearance or demeanour of that person strongly suggests that they are
significantly over the age of eighteen years, under this guidance, it is suggested
that no prolonged inquiry in to the person's age is necessary. If the person is
obviously a child, normally, no inquiry at all is called for."
Ms Waddell explained that based on how the service user presented during the assessment,
she would use her expertise and training to come to a judgement.
[51]
In cross-examination Ms Waddell said she had no specialist knowledge or experience
so far as young men from central Africa were concerned. The brief enquiry was itself a form
18
of age assessment, but there was no need for an extended assessment if it was clearly
evident that a person was over the age of 18 years.
[52]
Ms Waddell did not recall discussion of the pursuer's life in Chad during the
interview, and she could not recall whether he was given the opportunity to give an account
of family life and education there. It was not until 2024 that private interview rooms had
become available at the hotel where the pursuer was accommodated. Ms Waddell accepted
that the 1996 date of birth was one assigned by the Home Office, rather than volunteered by
the pursuer.
Submissions
Pursuer
[53]
Although counsel for the pursuer had advanced an objection in the course of
evidence to the social workers' expressing any opinion as to the age of the pursuer, he did
not maintain that objection in submissions. Rather, he submitted that little weight should be
attached to what the social workers said because they were not independent of the defender:
Kennedy v Cordia Services LLP [2016] UKSC 6, paragraph 44(iii). It was difficult to separate
their evidence of fact from their evidence of opinion.
[54]
Counsel for the pursuer submitted that I should grant declarator as concluded for.
In principle, assessments by Home Office officials and social workers might be persuasive
and form an appropriate starting point for consideration of the pursuer's age: Abdullah,
paragraph 55. In this case, however, the assessments were not persuasive, because they
did not follow best practice. There was no legally relevant distinction between a full
Merton-compliant age assessment and a short-form age assessment: R (HAM) v Brent London
19
would tend to be more persuasive than a short-form assessment or brief enquiry.
[55]
The defender's brief enquiry had not been consistent with the Scottish Government
guidance ("the SG guidance") in a number of respects. Best practice involved a blend of
knowledge and experience, comprehensive information gathering and reasoned, evidenced
judgment, safeguarded within a procedure which was transparent and met the requirements
of existing law: SG guidance, page 6. A trauma informed approach was required: SG
guidance, pages 14-15. The social workers in the present case had not appreciated that the
pursuer might have mistrusted them, and had failed to interpret his lack of eye contact with
that in mind. The pursuer had not been given a written statement of the purpose of the
interview: SG guidance page 23. Neither of the defender's witnesses had much experience
in age assessment at the relevant time, and although it was not unlawful for them to have
undertaken the assessment, their lack of experience went to the weight to be given to their
assessment. No appropriate adult had been provided: SG guidance page 20. The pursuer
had not been interviewed on two occasions: SG guidance, page 21. The interview was not
in a comfortable and private space: SG guidance, page 22. It was not clear that the social
workers had tried to elicit as full an account as possible of the background and circumstances
of the pursuer; Ms Waddell could not recall discussion of his life in Chad, and the report did
not record any discussion of that sort. The pursuer had not had an opportunity to comment
on the assessment findings before the assessment was concluded: SG guidance page 32.
[56]
The defender's assessment had been based on the appearance and the demeanour
of the pursuer. That was an unreliable basis for assessment: R (AB) v Kent County
20
Defender
[57]
Counsel for the defender submitted that the pursuer's evidence was not credible and
reliable. He could not explain why the date of birth on the document he tendered had been
recorded by the immigration officers as 23 November 2006, or why it had been recorded as
looking as if it were new. The pursuer had not adduced evidence from either of the uncles
he had mentioned in his evidence. Counsel submitted that the pursuer's evidence indicated
that he had not been treated as a child by the Italian authorities.
[58]
The evidence of Mr Enness had been straightforward. He and his colleagues had
reached the view that the pursuer was aged 26 when they met him. He did not think that
the document tendered looked like a birth certificate from Chad. Ms McDuma was a very
experienced social worker. Her observations cumulatively caused her to conclude that
the pursuer was significantly above the age of 18 in 2023. Both she and Ms Waddell were
credible and reliable witnesses. Counsel submitted that while individually the observations
of these witnesses about the pursuer's physical appearance would not have excluded his
being a child when they met him, those observations, looked at together, indicated that he
was indeed over the age of 18 at the time.
[59]
There had been no need for an extensive inquiry, because it had been clear that the
pursuer was over the age of 18.
Supplementary submissions
[60]
While preparing this opinion, I became aware of R (CJ) v Cardiff City Council
there is no formal burden of proof in proceedings where a court or tribunal is determining
a question of precedent fact as to the age of an individual. During the proof both counsel
21
had proceeded on the basis that there was an onus on the pursuer to prove that his date of
birth was the one specified in his conclusion for declarator. Parties provided supplementary
submissions in writing.
[61]
The pursuer submitted that the position in CJ was consistent with passages in AB
at paragraph 21, and in Merton at paragraph 38. I should follow the approach in CJ. The
correct question for the court was not whether the pursuer had established, on the balance
of probabilities, that his date of birth was 10 November 2006, but whether, on the balance of
probabilities the pursuer was or was not born on 10 November 2006.
[62]
The defender's submission was to similar effect. Counsel referred to A at
paragraphs 45 and 51. The role of the court was to decide where the truth lay, rather than
deciding between two competing positions. The defender did not accept that the role of
the court was inquisitorial: see CJ at paragraph 22. The system remained an adversarial
one and the role of the court was to decide where the truth lay on the evidence available.
Decision
The jurisdiction of the court
[63]
Some discussion took place in the course of submissions as to the procedure adopted
in this case. Counsel requested that I reflect the discussion in this opinion.
[64]
An application of this sort, on the basis that it was brought initially, falls, in my
opinion, within the supervisory jurisdiction of this court. Section 25(1) of the 1995 Act
imposes a duty on a local authority to provide accommodation for any child who, residing
or having been found within their area, appears to them to require such provision for certain
specified reasons. Section 25(2) gives the local authority a power to provide accommodation
for any child in their area if they consider that to do so would safeguard or promote his
22
welfare. In deciding whether to offer accommodation the local authority is exercising a
decision-making function that has been entrusted to it by the legislature. The manner of that
decision-making is subject to control by the court. That produces a tri-partite relationship of
the sort described by the Lord President (Hope) in West v Secretary of State for Scotland 1992
SC 385 at page 400; see also pages 412-3.
[65]
The exercise of the jurisdiction conferred by section 25 of the 1995 Act requires that
the person who may benefit from the accommodation be a child. Whether he is a child is
question of precedent fact: R (A) v Croydon London Burgh Council [2009] UKSC 8,
[2009] 1 WLR 2557, paragraphs 30-33; 53. Where the exercise of executive power depends on the
precedent establishment of an objective fact, the courts will decide whether the requirement
has been satisfied: see, for example, R v Secretary of State for the Home Department,
ex p Khawaja [1984] AC 74. That does not, however, destroy the tri-partite character of the
relationship. The determination of the precedent fact is a necessary part of the court's
discharge of its supervisory jurisdiction in ensuring that the local authority operates within
the law. It follows that I do not agree with the reasoning in Abdullah at paragraphs 64
and 65. There is not a standalone or "original" jurisdiction conferred on the court to
determine the age of an individual. It is a jurisdiction to determine a precedent fact in the
context of its supervisory jurisdiction.
[66]
For the same reason, I do not agree with the reasoning of the Lord Ordinary in L v
the determination of the precedent fact of age was something other than an exercise of
the court's supervisory jurisdiction: paragraphs 55 and following. For the avoidance
of doubt, I am not suggesting that it would be competent to transfer a judicial review
of a decision taken by a local authority under the 1995 Act to the Upper Tribunal: see
23
section 20(4) of the Tribunals, Courts and Enforcement Act 2007. It follows also that I do
not share the reservation expressed by the Lord Ordinary in U v Glasgow City Council
[2017] CSOH 122, 2017 SLT 1109, in the first sentence of paragraph 24.
[67]
By the time this matter came to proof, there was no live question of a failure
to accommodate the petitioner as a child. I was satisfied that there was more than a
remote prospect that the petitioner would seek to rely on his age in a future question
with the local authority, for the reasons already discussed.
[68]
The pursuer's conclusion does not raise an issue that is merely academic. On
one view that is because his age is a fact precedent to the future exercise of public law
powers - exercises of a jurisdiction - by the local authority. The potential legal relationship
between the pursuer and the defender, to which the age of the pursuer is the precedent
fact, remains one arising because of a power conferred on the defender by the Children
(Scotland) Act 1995. There is no decision regarding the exercise of such powers currently
under challenge - for example a decision not to accommodate him as a person aged
between 18 and 21. I prefer the view that the dispute between the pursuer and the local
authority about his age remains one properly within the scope of the supervisory
jurisdiction.
[69]
If I am wrong about that, absent the context of the exercise (or contemplated exercise)
of a power conferred by legislation or other instrument, an action for declarator as to an
individual's age would be competent. That would mean, in this context of this case, that
it was rightly raised as a petition for judicial review, but has, coincidentally, come to rest
in the "correct" procedure, the pursuer now having, on his own averments, turned 18.
[70]
Whether age assessment decisions will continue to be challenged by way of judicial
review may depend on whether section 54 of the Nationality and Borders Act 2022 is
24
brought into force. It provides for appeals to the First-tier Tribunal against age assessments
of persons subject to immigration control, including age assessments by local authorities
in connection with their responsibilities under the Children Act 1989 and corresponding
legislation in Wales, Scotland and Northern Ireland.
The role of the court in age assessment
[71]
It is clear from A that it is for the court to determine the precedent fact. As this
matter is proceeding by way of action, there was no question of my being asked to review
the decision of the defender on conventional judicial review grounds, or to reduce it. Had
the matter proceeded by way of petition for judicial review, the position would probably
have been the same. It is difficult to see what practical benefit there would be in reviewing
the process of decision-making where the factual decision is one that will be taken of new
by the court.
[72]
I heard some submissions about practice in the courts in England and Wales. It is
apparent from cases such as HAM and AB that in some cases the High Court has adjudicated
as to whether the local authority decision has been made lawfully, with the Upper Tribunal
ruling on the issue of precedent fact in relation to the age of the individual. In HAM Swift J
was dealing with a case in which it was contended both that the age assessment was
substantively wrong, and that the council carried out the assessment unfairly. It was agreed
that the substantive matter should be transferred to the Upper Tribunal: paragraph 37.
Swift J was dealing only with questions about the fairness of the process, and ultimately
found that one of the complaints about the fairness of the process was made out:
paragraph 51. He made a declaration to that effect, and transferred the substantive matter
to the Upper Tribunal. In AB the Court of Appeal granted relief requiring the council to
25
conduct a full Merton-compliant assessment, but did not quash the existing assessment, on
the basis that it provided material on which the defendant might build: paragraph 58. The
matter was also to be transferred to the Upper Tribunal for fact-finding: paragraph 58.
[73]
The courts of England and Wales have also, however, recognised that if a claimant
succeeds in establishing that the determination of his age is substantively wrong, orthodox
judicial review challenges are likely to be subsumed by the court's factual finding as to the
claimant's age, and the orthodox judicial review challenges will fall away as unnecessary:
noted that to "hive off" to the Administrative Court a challenge on conventional judicial
review grounds might add to costs and delay in the litigation. It noted also that once
permission to proceed had been granted, challenges to the procedure undertaken by the
local authority would be unlikely to play a significant part in the court's decision, based
on all the evidence, about the claimant's actual age. Once permission had been granted
the norm should be that the whole case be transferred to the Upper Tribunal.
Burden of proof
[74]
The reasoning of the Court of Appeal in CJ appears at paragraphs 22 and 23 of the
judgment:
"22. [...] I am persuaded that the nature of the inquiry in which the court is
engaged is itself a strong reason for departure from the common law rule
which applies a burden to one or other of the parties. I gratefully adopt Laws LJ's
analysis that the High Court is exercising its supervisory jurisdiction and in so
doing is applying the rule of law. Neither party is required to prove the precedent
fact. The court, in its inquisitorial role, must ask whether the precedent fact existed
on a balance of probability. I make it plain that I am not proposing that the burden
of proof should not be applied in any case in which an individual is claiming a
benefit under a qualifying statutory provision. Whether a burden of proof should
26
be applied at all and, if so, where it should rest, will depend upon the terms of the
statute conferring the power to act: see the judgments of Baroness Hale JSC and
Lord Hope DPSC in R (A) v Croydon London Borough Council (Secretary of State for the
Home Department intervening) [2010] PTSR 106 (at para 2 above). In the Court of
Appeal of Northern Ireland Lord Carswell CJ held in Kerr v Department for Social
Development [2002] NICA 32 using ordinary principles of construction of the
qualifying statute, that the claimant bore the burden of establishing his entitlement
to a payment in respect of his brother's funeral expenses, but the department bore
the burden of establishing any of the regulatory exceptions to that entitlement. I
would confine my conclusion as to the absence of a burden of proof to the particular
decision under the Children Act 1989 which faced Ouseley J on this occasion.
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 1989 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."
[75]
Parties were at one in their supplementary submissions in saying that I should adopt
a similar approach to that described by the Court of Appeal, and I have done so when
considering the evidence. These proceedings were conducted as adversarial proceedings.
They were not inquisitorial in the sense that the court was itself conducting or leading the
inquiry. The exercise in this case is one of assessing the evidence provided by the parties to
the proceedings and deciding where the balance of probabilities lies.
The age assessment jurisprudence of the Upper Tribunal
[76]
I have become aware that the Upper Tribunal, in the exercise of its judicial review
jurisdiction, has developed an extensive body of jurisprudence bearing on the matters that
it regards as potentially relevant evidence in cases of this sort, and associated directions for
case management. The duty of candour in judicial review proceedings - which requires the
disclosure of information that may be adverse to the case of a party - applies to both parties:
27
see, for example R (BG) v London Borough of Hackney [2022] UKUT 00388 (IAC). I was not
addressed on that case, and did not seek submissions about it, as I did not intend to rely
on it. I have not approached my assessment of the evidence on the basis that the pursuer
was under a duty of candour of the sort that applies in judicial review proceedings. A
ruling was made at an earlier stage that these proceedings did not engage the supervisory
jurisdiction and parties proceeded on that basis. If this court is to be asked in the future
to make factual assessments about the age of a person in the context of its supervisory
jurisdiction, parties should be prepared to address the relevance or otherwise of the
caselaw of the Upper Tribunal in this area. Case management hearings and orders may be
desirable.
Assessment of the evidence
[77]
The pursuer's evidence is the only evidence that points positively to his being a
child at the time he arrived in the United Kingdom, and to his date of birth being the one in
relation to which he seeks declarator. I have no reason to, and do not, doubt the pursuer's
account that birthdays were not celebrated during his childhood, or that the practice of
doing so was regarded as haram. In other respects, however, the evidence he gave about
his age was not credible and reliable. A notable feature of his evidence was the vague and
unsatisfactory nature of the answers he gave in relation to some of the matters that bore
most closely on his age.
(a)
He did not provide a direct answer when his counsel asked him how old
he had been in 2022, instead saying that it was something that he had never
thought about before coming to the United Kingdom.
28
(b)
His explanation as to why he had not made efforts to obtain a replacement
birth certificate was unsatisfactory. It is not clear why that would involve
him in speaking to the immigration authorities in Chad.
(c)
His explanation as to why he had not pursued matters further with his
maternal uncle regarding confirmation from the khalwa of his attendance
there was also unsatisfactory. The pursuer said that he had just got "fed up"
because his uncle said he was busy. That is surprising in circumstances where
the pursuer has sought to challenge the assessment of his age.
I am cautious about placing too much weight on the pursuer's demeanour in court. I do not
know how he usually presents, and there may be cultural factors relating to the presentation
of young men from central Africa about which I am not aware. There was, however, a
contrast between his vague and evasive answers and demeanour when he was being asked
about the matters that I have listed above and his answers and demeanour relating to some
other matters. He presented as engaged and confident when speaking about his attempts
to cross the English channel, and gave a fairly detailed and vivid account of those events.
I have taken into account the differences I observed in his demeanour in assessing his
credibility.
[78]
There was very little in the pursuer's evidence by way of detail about his life in
Chad, or the activities that he engaged in there, or at what dates. In relation to his
attendance at religious education at the khalwa he said that he had attended from the
age of 8, but did not mention the year when he first attended. He said nothing about his
life in the United Kingdom, or any difficulties he might have experienced while being
accommodated with adult asylum seekers.
29
[79]
I have taken into account the absence of evidence from the pursuer's paternal uncle.
I have no reason to doubt that he travelled with the pursuer as far as France, that he now
resides on France, or that he had custody during much of the pursuer's journey of the
document that the pursuer surrendered to Home Office officials shortly after he arrived in
the United Kingdom. There is no obvious reason why evidence from him was not provided
in these proceedings. There was no explanation as to why evidence from him could not be
made available. On the pursuer's evidence his uncle had provided most of the funding to
the people traffickers who transported the pursuer from France to the United Kingdom,
and had been willing to assist him to that extent in the past. The unexplained absence of
that evidence is relevant notwithstanding the absence of an onus of proof on the pursuer.
[80]
It is not the fault of the pursuer that he cannot produce the document that he gave
to the Home Office officials. The Home Office has lost it. It is not available for production
or scrutiny in these proceedings. Counsel for the pursuer submitted that the efforts to
recover the document by commission and diligence reflected positively on the pursuer's
credibility: he would not have sought to recover a document that he did not think was
genuine and of assistance to his case. I do not draw that inference. The attempt to recover
the document is neutral so far as the credibility of the pursuer is concerned. It was a
document of some potential importance in the case and given that the Home Office is not
a party in this case, it is readily understandable that the pursuer should have sought to
recover it from the Home Office.
[81]
I accept that it was Mr Enness's genuine belief that the document he saw was not a
birth certificate from Chad, and accept his evidence that he had seen birth certificates from
Chad. I attach no significant weight to that evidence, however, in circumstances where the
document is not available for production and scrutiny in this process. Mr Enness had little
30
recollection of his meeting with the pursuer, and his evidence went no further than to
indicate that he had no reason to think that what was recorded in the Assessing Officer's
Report by Mr Parkhill-Fleming was incorrect. At one point in his evidence he said that
he would have "returned to the document" tendered by the pursuer, "had he seen it and
disagreed with" the record made by his colleague. I was not confident, on the basis of
that evidence, that he had in fact scrutinised his colleague's draft report in any great detail.
So far as the date of birth on the document - recorded in 7/2 as 23 November 2006 - is
concerned, the accuracy of the report cannot be tested, because the document has been lost.
[82]
There is no positive evidence from Mr Enness, Ms McDuma or Ms Waddell to
support the proposition that the pursuer's date of birth is 10 November 2006. I am not
deciding in these proceedings whether it was lawful for the defenders to reach a conclusion
on the basis of a brief enquiry, rather than a more extensive assessment. I require to
consider the evidence the witnesses provided in court and whether, and to what extent, it
assists me in assessing where the balance of probabilities lies.
[83]
The law since Merton, and published guidance, including the SG guidance, has
proceeded on the basis that assessment should be carried out by experienced social workers.
It is reasonable to think that social workers who have experience of working with young
people will have some resulting advantage in assessing the behaviour, speech and other
characteristics of people who say they are under 18 years of age. Both Ms McDuma and
Ms Waddell were social workers with a number of years of experience. They were generally
credible and reliable witnesses as to fact. I had the clear sense that both felt a significant
responsibility to try to identify people who were or might be children and who were being
provided with accommodation as adults. Both worked in children's services. Both had
received training in relation to the assessment of age. I consider that they can be regarded
31
as having some experience and training relevant to the assessment of age. All that said,
however, I have not relied on the view that they formed about the pursuer's age, or afforded
it any weight.
[84]
Both witnesses disclaimed, at least initially, any particular expertise so far as young
men from central Africa were concerned, although Ms McDuma went on to refer to her
experience working in South Africa with men of central African origin, and also to working
in Scotland with children from Sudan. They did not spend a great deal of time in the
company of the pursuer. Their conclusion, which was that he was aged more than 18 when
they met him in 2023, was based primarily on his physical appearance and demeanour. I
accept that, generally, physical appearance and demeanour require to be approached with
caution in this context. Little else about their encounter with him is recorded in their report.
I accept that they may well have asked him about his life in Chad, but his responses to any
such questions are not recorded, and I did not hear evidence about what those questions
or answers were. There is little in the evidence from Ms McDuma and Ms Waddell that
assists me in assessing the age of the pursuer. The assessment they carried out was of a
limited character, and not accompanied by the features and safeguards described in AB
at paragraph 21. An assessment with those features is likely, in general, to yield more
information, and more reliable information.
[85]
I accept the evidence of the witnesses as to the observations that they described
regarding the physical appearance of the pursuer at the time that they met him. At that
time, on his own account, he would not yet have turned 17. As they acknowledged, at least
some of their observations about his personal appearance were not necessarily inconsistent
with his claimed age - for example the presence of facial hair on his upper lip and his having
a strongly defined jaw line. None of the physical features that the social workers observed
32
points positively to the pursuer's having been a child when they met him. As well as the
characteristics just mentioned, they noted that he had a protruding Adam's apple, that his
hands were veiny, that his skin appeared aged, with visible crow's feet round his eyes. They
noted also that he had "distinct receding hairlines".
[86]
Both counsel submitted that it was open to me to take account of my own
observations of the pursuer in court. So far as his physical appearance is concerned I have
not done so. His position in the witness box did not permit me to make any detailed
observations as to the appearance of his face or his hands. I did not observe anything
notable about his hairline, but I do not know how his hair was styled when social workers
observed him, and note that their observations regarding a receding hairline coincide with
the observations noted by Mr Parkhill-Fleming. I would in any event have been reluctant
myself to embark on assessment of his age placing much weight on appearance alone. That
approach has been deprecated in the caselaw.
[87]
The Home Office Assessing Officer's Report recorded that the pursuer initially said
he was born in 2003 and gave accounts that his father told him his date of birth variously
5 months and 5 years earlier. Counsel for the defender did not place any emphasis on these
passages in submissions. I have not placed any weight on them in assessing the credibility
of the evidence that the pursuer provided in court. Mr Enness had very little recollection of
the interview. I would in any event have been cautious about placing too much weight on
responses given on arrival in the aftermath of a journey of the sort described by the pursuer.
The defender's brief enquiry report recorded that the pursuer said that it was his mother
who had told him his date of birth. I am satisfied that the pursuer did provide that answer
to the social workers. It is inconsistent with what he said in court, and I have taken it into
account in assessing his credibility and reliability.
33
Conclusion
[88]
Having assessed all of the evidence available, I am unable to find on the balance
of probabilities that the pursuer's date of birth is 10 November 2006. The evidence that
supports that proposition comes only from the pursuer, and I do not accept the material
parts of his evidence as credible and reliable. No other evidence supports that proposition.
It is highly unlikely that his date of birth is later than 10 November 2006. If it were later than
10 November 2006, I would expect that to have been his case. It is more likely than not that
his date of birth is earlier than 10 November 2006. There is nothing in the evidence to enable
me to make a positive finding as to what the pursuer's age is, or what his date of birth is.
[89]
I therefore sustain the defender's second plea-in-law and grant decree of absolvitor.
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