Claimant must show age if asserting council owes duty, rules judge

The onus is on claimants to show they were under 18 at the time they assert a duty was owed to them as a child by a local authority, particularly where there is a large gap in the disputed age, a High Court judge has ruled.

The case of CJ, R (on the application of) v Cardiff County Council [2011] EWHC 23 centred on whether the claimant, an Afghan national born in Iran, was “a minor, aged 17, or an adult now probably 20 plus, who was at least 18 on arrival in the UK in August 2008”.

Reviewing the evidence, Mr Justice Ouseley said he had come to the conclusion that he should accept the appraisal by the social worker who had most dealings with the claimant. This suggested that CJ was now 20 plus. The claimant had given his age as 15 at his initial screening interview on 28 August 2008.

The judge said reliance on the social worker’s appraisal was supported by the general impressions of foster carers and hospital staff, “and for what little it is worth” the brief assessment carried out by the London Borough of Croydon on the same day as the screening interview (suggesting the boy was over 18).

“He could be between 18 and 22, but I found just 17 impossible to accept and untruthfully alleged,” Mr Justice Ouseley said, adding that he had doubts about documentary evidence produced by the claimant to support his claim.

Expert evidence failed to persuade the judge that documents sourced by CJ could be given the necessary credence. “I am not satisfied as to their authenticity, having heard all the evidence,” he found.

Ruling in favour of the council, Mr Justice Ouseley said he had intended not to decide the case by “what could be an unsatisfactory resort” to the burden of proof.

“But it has been quite a close decision, principally because the speed with which the three documents were sought and obtained by CJ from Iran, supports their authenticity, which in turn helps CJ's credibility and could overcome my strong reservations about him,” he said. “And I am aware of the fragility of the basis for the age assessment decisions.”

He added: “In reality, if I ask: has the council shown the claimant to be an adult aged over 18 now and on arrival, I would answer nearly but not quite. If I ask: has the claimant shown himself to be under 21 now, the answer is no and he is some way short of doing so.

The judge concluded that he had to decide who bore the burden of proof. “In my view it is for the claimant to show that he is or was under 18 at the time that he asserts a duty was owed to him as a child,” he ruled.

This was for two reasons:

• In judicial review proceedings it is for the claimant to show that the public authority has erred in its duties
• “Second, but obviously related,” it is the claimant who is asserting that the duty is owed; the authority is not asserting a power to do something. “It is not crucial but supportive nonetheless that the readier means of knowledge lies with the claimant on this issue.”

The judge said he appreciated the point made for counsel for the claimant that there may be instances under the Children Act – such as a disputed age for the purpose of preventing a parent removing a child from section 20 accommodation – where an authority might have to prove age.

“But that is consistent with the obligation being on the person who is exercising power to show his entitlement to do,” Mr Justice Ouseley said, adding that this was the basis of his decision in R (Becket) v SSHD [2008] EWHC 2002 Admin para 2. In that case, the judge ruled that the Home Secretary bore the burden of establishing that the claimant had obtained leave to remain by deception (the Khawaja issue [1984] AC 74.)

“It is not for the authority to disprove the jurisdictional fact asserted by a claimant as the basis for the duty alleged,” Mr Justice Ouseley said. “It is for the authority to prove the jurisdictional fact which it needs to assert against a disputing claimant in order to give it the power it exercises.”

The judge added that the case before him was not one where there was a grey middle range of 17-19 with the crucial age falling in the middle. “Giving the benefit of the doubt to such a claimant wisely reflects the uncertain nature of age assessment,” he said. “But that is not the issue here: it is which side of the large gap was this claimant, essentially as a matter of credibility.”