OUTER HOUSE, COURT OF SESSION [2012] CSOH 134 P1221/10 OPINION OF LORD STEWART in the Petition of ISA Petitioner; for Judicial Review of a decision by Angus Council dated 16 September 2010 that the petitioner ISA is over the age of 16 years and of a decision consequent thereon to transfer the petitioner to Glasgow and Answers for Angus Council Respondents: ________________ Petitioner: Ms Stirling, advocate; Drummond Miller LLP Respondents: A Smith QC; Tods Murray LLP 24 August 2012 [1] This is an application for a fact-finding, age assessment judicial review presented by a young Nigerian male visa-overstayer, petitioner ISA. On or about 9 April 2010 petitioner ISA and another young Nigerian male stated to be his brother, petitioner ALA, also a visa-overstayer, came into the de facto care of the respondents' Social Work Department in circumstances that I shall describe below. At that time petitioner ISA claimed to be 11 years old. He was in possession of a birth certificate bearing to show his date of birth as 6 November 1998. The United Kingdom Border Agency [UKBA] visa application record shows that when the application was made the petitioner held a genuine Nigerian passport giving his date of birth as 6 November 1993. The birth certificate would make him 13 years old at today's date and the passport would make him 18. [2] The respondents are a local government authority with responsibilities for children in need under the Children (Scotland) Act 1995. In terms of the 1995 Act a "child" is "a person under the age of 18". On 16 September 2010 the respondents carried out an age assessment. They assessed petitioner ISA's age at "sixteen years plus". In context the clear meaning of this assessment is that petitioner ISA was accepted by the respondents as being a "child" within the meaning of the Children (Scotland) Act 1995, namely "a person under the age of 18". [3] Petitioner ISA's application seeks (a) declarator that the respondents' age assessment is "wrong as a matter of fact" and that the age assessment was procedurally unfair; (b) reduction of the age assessment; (c) declarator that the petitioner is a child for the purposes of chapter 1 of Part II of the Children (Scotland) Act 1995, being a person under the age of 18 years and that he was born on 6 November 1998, or 5 December 1996 or on 6 November 1996 or (after amendment) on such date after 6 November 1993 as the court thinks fit; (d) declarator that the respondents' decision to transfer the petitioner to the YMCA Glasgow is unlawful; (e) reduction of the decision to transfer the petitioner; and various ancillary orders. Petitioner ALA also seeks judicial review of the respondents' assessment of his age. The applications have been heard together. [4] Having heard proof followed by counsel's submissions culminating on 28 October 2011 I made avizandum. I have now decided to refuse the petition for petitioner ISA. The respondents' decision to transfer the petitioner to Glasgow in the autumn of 2010 has been completely overtaken by events; and Ms Stirling, counsel for the petitioner, made very limited submissions about that matter. The Wednesbury attack on the fairness of the respondents' age assessment process been not insisted on. The respondents' age assessment found petitioner ISA to be a child i.e. to be under 18 years of age. My own view on the information put before me is that petitioner ISA was probably about 151/2 years old at the time of the respondents' assessment which found the petitioner to be "16 +". The difference is not material, so far as the issues raised in these proceedings are concerned, and does not justify declaring the respondents' assessment "wrong as a matter of fact" in a situation where better evidence may yet become available. [5] There is no known technique or combination of techniques for determining age at a particular moment in time [T Smith and L Brownlees, Age Assessment Practices: a Literature Review and Annotated Bibliography, UNICEF Discussion Paper (New York, 2011)]. Margins of at least plus or minus two years are routinely quoted. In 1999, the Royal College of Paediatrics and Child Health (RCPCH) issued the following guidance for paediatricians [Assessment of the Age of Refugee Children (RCPCH, London, 1999)]: "In practice, age determination is extremely difficult to do with certainty and no single approach to this can be relied upon. Moreover for young people aged 15 - 19, it is even less possible to be certain about age. There may also be difficulties in determining whether a young person who might be as old as 23 could, in fact, be under the age of 18. Age determination is an inexact science and the margin of error can sometimes be as much as 5 years either side. Assessments of age measure maturity, not chronological age. However, in making an assessment of age, the following issues should be taken into account..." [6] The guidance just quoted addresses the issues of "spot" assessments at a particular moment in time. Unusually, in the present cases, there have been successive paediatric assessments. The most useful pieces of information available to me are the finding of Dr Birch, paediatrician, about the petitioners' growth over a six month period and the opinion of Professor Cole, medical statistician, as to the petitioners' likely ages derived from the fact and rate of growth. As a rule human males have stopped growing by the age of 18, the age at which they become statutory adults. I am told that, if there is growth, it is likely that the subject is not an adult. It is for consideration whether asylum seekers claiming to be children should have their height measured on arrival or presentation and at six-month intervals thereafter [see also AM, R (on the application of) v Solihull Metropolitan Borough Council (AAJR) (Rev 1) [2012] UKUT 118 (IAC) (14 June 2012), § 17]. [7] The story of the petitioners is worth telling in some detail for the way it illustrates the challenges that can face asylum seekers claiming to be children without reliable age documentation, the challenges that face the public authorities who have to deal with them and the challenges that face judicial decision makers when required to undertake fact- finding age assessment judicial reviews. These challenges are connected with the Secretary of State's policy of granting unaccompanied asylum-seeking children [UASCs] so-called discretionary leave to remain until they are adults. By the time they are adults, or are, should I say, definitively determined to be adults, such claimants may hope to have acquired ECHR Article 8 (family and private life) rights in the United Kingdom which prevent their removal even if their asylum claims have no merit. The other advantage of being found to be a UASC and of being accommodated by a local authority as a child in need is that formerly "looked after" children are entitled to local authority after-care services and support until the age of 25. Age assessment judicial reviews [8] Fact-finding judicial reviews for age assessment purposes are authorised by the decision of the Supreme Court in R(A) v Croydon London Borough Council [2009] 1 WLR 2557. This is a decision on the Children Act 1989, a statute which does not extend to Scotland. In terms of section 20(1) of the 1989 Act, the threshold qualification for obtaining accommodation from a local authority in England & Wales is that the applicant is "a child", meaning "a person under the age of eighteen". As I understand R(A) v Croydon London Borough Council, the question "child or not?" is a pseudo-jurisdictional issue that has to be resolved before the local authority can be seised of the question whether, in relation to the applicant, it is bound to exercise its power to provide accommodation. If the local authority's assessment of age is disputed, the question whether the applicant is a child is an issue of fact to be determined by the court. Baroness Hale of Richmond JSC said, at paragraph 46: "... if live issues remain about the age of a person seeking accommodation under section 20(1) of the 1989 Act, then the court will have to determine where the truth lies on the evidence available." Lord Hope of Craighead DPSC said, at paragraph 51: "It seems to me that the question whether or not a person is a child for the purposes of section 20 of the 1989 Act is a question of fact which must ultimately be decided by the court." The Supreme Court ruled that the remedy should be sought by way of judicial review in the Administrative Court, the review procedure being adapted to determine disputed questions of fact [Lady Hale at § 33 with whom the other Justices agreed]. [9] How does this work in practice? The Court of Appeal of England & Wales has reacted to the Supreme Court's ruling first by indicating that applications ought to be transferred from Administrative Court to the tribunal system and then by ruling that: "No court should in future decide a case on the basis of evidence from Dr Birch." Dr Diana Birch - whom in a previous opinion I mistakenly called Dr "Ruth" Birch - is the paediatrician without whose expert report the application of A would probably never have got to the Supreme Court and who is currently the paediatric expert of choice for age assessment claimants [A v London Borough of Croydon [2009] EWHC 939 (Admin) (08 May 2009); R (FZ) v London Borough of Croydon [2011] EWCA Civ 59 at §§ 4, 16 and 31; R (FM) v Secretary of State for the Home Department and Anr, Court of Appeal, Civil Division, C4/2011/1274, per Sir Richard Buxton (9 August 2011); L v Angus Council 2012 SLT 304 at § 133]. [10] It has emerged that there is a question mark over the jurisdictional competence of the Upper Tribunal to resolve all the issues which can arise [R (on the application of JS) and R (on the application of YK) v Birmingham City Council (AAJR) [2011] UKUT 505 (IAC) (08 February 2012) at §§ 7-14]. One of the reasons why the Court of Appeal thought it appropriate to transfer age assessment reviews to the tribunal system was "because the judges there have experience of assessing the ages of children from abroad in the context of disputed asylum claims". Now it appears that the judicial review jurisdiction to make age assessments exercised by the Upper Tribunal involves different principles from the asylum jurisdiction to make age determinations, different principles as to the burden of proof and the standard of proof [Rawofi (age assessment - standard of proof) Afghanistan [2012] UKUT 197 (IAC) (18 June 2012) at §§ 9-14]. The Upper Tribunal has observed that not only is there no effective filter and a minimal hurdle for claimants to overcome at the permission stage, there is, in light of the Court of Appeal's ruling on burden of proof, no hurdle at all for claimants at the substantive hearing. "The implications for the resources of local authorities remain to be explored" [R (on the application of CJ) v Cardiff City Council [2011] EWCA Civ 1590 (20 December 2011); AM, R (on the application of) v Solihull Metropolitan Borough Council (AAJR) (Rev 1) [2012] UKUT 118 (IAC) (14 June 2012), §§ 9-13]. Competency of this application for judicial review [11] The decision of the Supreme Court is a decision on the meaning and effect of the Children Act 1989: the decision is not binding as to the construction of the Children (Scotland) Act 1995; and there have to be reservations, with respect, as to whether the reasoning of the Supreme Court is persuasive in relation to the differently-worded Scots statute. The application in Scotland of R(A) v Croydon London Borough Council is discussed in my Opinion in L v Angus Council 2012 SLT 304 at §§ 115-164. I incline to the view that the question whether an individual without reliable birth documentation is a child at a particular moment in time is a question of judgment rather than a question of fact; that this is recognised in the wording of the Children (Scotland) Act 1995; and that Scottish local authority age assessments are amenable to judicial review only on traditional Wednesbury grounds. Wednesbury review was the only remedy in England & Wales until the decision of the Supreme Court in R(A) v Croydon London Borough Council. [12] Questions raised at the First Hearing in the L v Angus Council case included whether the Court of Session has power in the exercise of its supervisory jurisdiction to conduct fact- finding reviews and whether it is competent to pronounce a declarator of status or age in judicial review proceedings as opposed to in an ordinary action of declarator. During the adjournment between the first and second parts of the proof in the present proceedings, Mr Smith QC, senior counsel for the respondents in the present proceedings, sat in court to hear the submissions in L v Angus Council, although he did not learn the result before making his closing submissions in the present proceedings [L v Angus Council 2012 SLT 304 at §§ 25, 29, 58-71]. [13] The respondents' closing submissions in the present proceedings raise the issue of competency. The matter is introduced as follows in Mr Smith's written submissions [§ 1.2]: "... the petitions [of this petitioner and his co-petitioner] are incompetent. They do not seek to invoke the supervisory jurisdiction of the court, and the more appropriate method of determination of the issue is by an action of declarator. It is acknowledged that the pleadings as presented by the respondents do not in fact raise and issue of competency and, indeed, invite the court to determine the issue of age. However, it is submitted that, notwithstanding the position adopted in the pleadings, the court should rule that the application is incompetent." As Mr Smith's Written Submissions acknowledge, the respondents' pleadings positively invite the court to determine the issue of age. Proof on the issue of age was allowed by the interlocutor of the Outer House administrative judge dated 18 March 2011. The interlocutor, as I understand matters, represents the wishes of both parties. [14] Parties have agreed to join issue on the basis that fact-finding judicial review is competent; I have heard eight days of evidence and submissions with reference to volumes of documents including 28 affidavits; and the respondents have no plea to the competency of the procedure. The competency issue, as now formulated by Mr Smith QC for the respondents, is about the form of the proceedings. Mr Smith QC does not contest the power of the court, properly invoked, to pronounce declarators as to status or age. He submits that the proper vehicle is an ordinary action of declarator. The issue of competency is linked to the question whether the declarator sought is intended to be in rem. That is something I discuss below. It is sufficient at this juncture to say that Ms Stirling for the petitioner does not contend that the declarator sought in the present proceedings should be good against the whole world. In these circumstances, I judge that it would be wrong to supersede the allowance of proof and to decide the matter as one of competency. I am unwilling to entertain the competency issue at this late stage. [15] For completeness I have to mention that although the written submissions for the respondents bear to give notice of a motion to amend the answers to the petition by inserting a plea to the competency, Mr Smith QC did not actually make a motion to amend. Relevancy of this application for judicial review [16] Making the assumption, then, without deciding, that the remedy sought is not one beyond the power of the court to grant in judicial review proceedings, the next question is whether the petitioner presents the kind of case that justifies the remedy. Accepting for the sake of argument that the Supreme Court decision should be followed in construing the Children (Scotland) Act 1995, which is Ms Stirling's submission, I think - without necessarily concluding that the application should fail on this basis - that the petition falls short in two respects. Both of these matters shade in to the question of competency. The first issue is about the petitioner's age as assessed by the respondents. The dicta of Lady Hale and Lord Hope quoted above make it plain, I would have thought, that the ratio of R (A) v Croydon London Borough Council applies where an applicant for accommodation under the relevant section is assessed by the local authority to be an adult rather than a child, that is where he or she is assessed to be eighteen years of age or more. [17] In the present case the respondents assessed the petitioner to be a child of "16 +". What the petitioner now seeks is to have it declared that he is a younger child, ideally from his point of view, a child of "11+" rather than "16+" (at the date of the assessment). Not only does the ratio of R (A) v Croydon London Borough Council not apply, the situation in the present case gives further cause, with respect, to be sceptical about the solution offered by the