F, R (on the application of) v London Borough of Southwark

Factual and Procedural Background

This opinion arises from five cases concerning the assessment of age for individuals claiming to be children, following the Supreme Court judgment on 26 November 2009 in the cases of A v London Borough of Croydon and M v London Borough of Lambeth. The cases before the court involve different local authorities and are referred to as the Southwark, Manchester, Croydon, Lewisham, and Greenwich cases. These cases have been awaiting directions or case management hearings subsequent to the Supreme Court's decision. The court conducted a combined directions hearing to manage these cases, issuing directions tailored to each case but with considerable overlap. The court acknowledged the potential for a large volume of similar cases pending or prospective, highlighting the significant demands on court resources. The context involves disputes over the age of unaccompanied individuals claiming to be children, with implications for duties under the Children Act 1989 and related immigration matters.

Legal Issues Presented

1. What is the precise issue for determination in judicial review proceedings challenging age assessments—whether the individual was a child on the relevant date, or also the actual age or date of birth?
2. What is the appropriate approach to the grant of permission to proceed with judicial review in disputed age cases?
3. What are the burden and standard of proof applicable in these cases?
4. What is the role and admissibility of medical evidence in age assessment disputes?
5. What procedural directions should govern the conduct of fact-finding hearings, including witness attendance and claimant participation?
6. Which category or type of judge should hear these cases?
7. What are appropriate estimates and preparations for final hearings, including bundle management and interpreter provision?

Arguments of the Parties

Local Authorities' Arguments

• The only issue ruled upon by the Supreme Court is whether the person is or was a child; the judicial review should not extend to determining actual age or date of birth.
• Once the court determines the claimant was or was not a child on the relevant date, it is for the local authority to decide the actual age and duration of duty to provide services.
• The burden of proof should always lie with the claimant throughout the proceedings.
• Social workers’ written assessments should suffice without requiring their attendance for cross-examination.

Claimants' Arguments

• If the court finds that the claimant was a child on the relevant date, it must also determine the actual age or date of birth to establish the duration of duties under the Children Act 1989.
• Special measures should be available for claimants during hearings, including hearings in chambers, private evidence, or video links.
• Social workers who provide assessments should be subject to cross-examination if relied upon.
• In some cases, the claimant should not be involved in the forensic process unless they wish to be.
• Permission to adduce medical evidence should be granted, especially where medical evidence already exists.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by contextualising the volume and nature of cases pending following the Supreme Court decision, emphasizing the overriding objective of the Civil Procedure Rules to manage resources proportionately. The court rejected the local authorities’ submission that judicial review should only determine whether the claimant was a child, holding instead that the court must also determine the actual age or date of birth on a balance of probabilities if the claimant is found to be a child. This conclusion was supported by direct quotations from the Supreme Court judgments, which clearly referred to “age” rather than a mere binary child/adult distinction.

Regarding permission to proceed, the court stressed the importance of permission as a filtering mechanism, warning against the practice of “rolled up hearings” that combine permission and substantive hearings, which undermines this safeguard. The court outlined two factual scenarios for permission: where the local authority assessed the claimant as over 18, and where the local authority assessed the claimant as under 18 but older than claimed. The test for permission in both cases is whether there is a realistic prospect that the court will find the claimant is younger than assessed.

The standard of proof was confirmed as the civil standard of the balance of probabilities. The court noted uncertainty over the evidential burden but held that it is a matter for the judge at final hearing, not for advance directions.

On medical evidence, the court reviewed the judgment of Collins J, who had given detailed consideration to the reliability and role of paediatric reports, particularly those by Dr Birch. Collins J found such reports admissible and potentially helpful but generally gave greater weight to Merton-compliant social work assessments unless the medical evidence identified something significant. The court directed that existing medical evidence could be admitted and relied upon, with provision for updating and for expert evidence in answer if local authorities wished. However, it refused permission for new medical evidence in the Lewisham case at this stage, deferring consideration until after fact-finding hearings in other cases.

The court addressed procedural issues including the necessity of social workers’ attendance for cross-examination if their assessments are relied upon, rejecting the local authorities’ position that written assessments alone should suffice. The court emphasized the claimant’s involvement in hearings, acknowledging submissions for special measures but ultimately leaving the extent and manner of claimant participation to the judge’s discretion at final hearing. In particular, the court made directions regarding claimant attendance near the court and the possibility of video link evidence.

The court declined to specify the category of judge who should hear the cases, leaving that to court administration and noting resource implications.

Finally, the court stressed the importance of realistic estimates for hearing length, including time for judgment delivery, and ordered the preparation of fresh, well-organized bundles focused solely on relevant issues, with agreed chronologies and case summaries. The court also directed that interpreters be arranged where required.

Holding and Implications

Holding: The court ruled that in judicial review proceedings challenging age assessments, the court must determine both whether the claimant was a child on the relevant date and, if so, the claimant’s actual age or date of birth on a balance of probabilities. Permission to proceed requires a realistic prospect that the court will find the claimant younger than the local authority’s assessment. Medical evidence, including paediatric reports, is admissible and must be considered but does not automatically outweigh compliant social work assessments. Social workers must be made available for cross-examination if their assessments are relied upon. The claimant’s participation in hearings is subject to the judge’s discretion, with special measures potentially available.

Implications: This decision clarifies the court’s role in age dispute cases as engaging in primary fact-finding on actual age, not merely on child/adult status. It reinforces the importance of permission as a filter and establishes procedural directions to ensure fairness and efficiency. The ruling anticipates a significant volume of similar cases and seeks to manage court resources accordingly. No new binding precedent beyond the interpretation of the Supreme Court judgment and procedural directions is established, but the judgment provides practical guidance for future cases of this nature.