Presentation on theme: "Is it for the Local Authority to assess age? Bryan McGuire."— Presentation transcript:
Is it for the Local Authority to assess age? Bryan McGuire
Man or Boy? That is the question … R(A) v London Borough of Croydon; R(M) v London Borough of Lambeth  EWCA Civ 1445. Two unaccompanied asylum seekers claim to be under 18. Social workers employed by LAs assess them to be over 18. Applicants challenge. CA judgment in favour of LAs on 18 December 2008. Appeal to House of Lords to be heard end of July. Others lined up in the Administrative Court.
Issues in the Court of Appeal 1. Precedent Fact / Construction The question: did Parliament entrust age assessment to the LA or the courts? The answer: LA to age assess. Read into s.20: “Every LA shall provide accommodation for any person whom the LA have reasonable grounds for believing to be a child in need…”.
Precedent fact / Construction (cont.) The reasoning: (a)The subjectivity argument: “Child in need” subjective judgment for LA. (b)The good administration argument: If courts to determine age, prejudicial to good administration: cost and delay. (c)The scheme of the Act argument: Pts 2 and 4 for the courts, Pt 3 for the LA.
Issues in the Court of Appeal 2. Article 6 Is LA age assessment A6 compliant? The questions: (a)Is there a right to accommodation? Yes. (b)Is it a civil right? No. (c)Has there been a determination? Yes.
Article 6 (cont.) (a)Were social workers independent and impartial? No.  (b)Does JR constitute sufficient compliance? Yes: (i)“Trained decision-makers should not be treated as inferior being intellectually unable to approach the task with an open mind. The fair- minded and informed observer would have that in mind.”  (ii)Age assessment only “a staging post” in s.20. (iii)If contract out age assessment, LA pays, so still no independence. (iv)The good administration argument (again).
Summary – of the story so far 1.Parliament intended LAs to age assess 2.LA age assessment is Art. 6 compliant. 3.Themes: (a)Social work for social workers. (b)Good administration. (c)Scheme of the Act.
Epilogue: Appellant’s Arguments in the House of Lords Construction: contrary to wording of Act. Art. 6: (a)S.20 is a civil right: public/private distinction out of date. (b)Social worker lacks apparent impartiality. (c)JR not sufficient remedy given nature of decision. (d)Tribunals for pecuniary benefits. Why not for age assessment? (e)Tsfayo v UK  48 EHRR 18
Appendix: Navigating s.20 Ward LJ’s roadmap of s.20 (adopted by Baroness Hale in R(G) v Southwark  UKHL 26) 
1.The decision on age is one for Local Authorities age assessors.
2.The decision can only be challenged on usual Judicial Review grounds.
3.Local Authorities should therefore continue to take into account all evidence submitted to it including paediatric reports:
4.Local Authorities still needs to read the paediatric report:
5.Local Authorities are entitled generally to place little or no weight on a paediatric report: