In a landmark judgment the Supreme Court has unanimously upheld the right of asylum-seeking children to have their age determined by the court.
In a landmark judgment the Supreme Court has unanimously upheld the right of asylum-seeking children to have their age determined by the court.
In R (A) v Croydon; R (M) v Lambeth [2009] UKSC 8, the court ruled that where there is a dispute about the age of a young person who claims to be a child, the issue must be resolved by the courts not by local authorities.
Hugh Purkiss of Harter and Loveless, solicitor for “A”, says that previously when local authorities have assessed unaccompanied asylum seekers as over 18, thereby avoiding having to provide them with services and support as children, the only recourse available was to bring judicial review proceedings, which frequently led to the High Court quashing the age assessment and remitting the matter back to the local authority for it to carry out another one.
As the local authority would sometimes reach the same decision again, this led to “tens of cases of young persons being trapped in ongoing litigation against local authorities with no resolution to their situation”.
Purkiss says: “When I started to represent these young clients I felt that the age assessment system was unfair and self-serving. Local authorities seemed to be able to avoid their obligations to vulnerable young people.”
The case hinged on a matter of construction of the Children Act 1989. The local authorities contended that their duty was to determine whether a young person was a “child in need”, a composite term which required a professional value judgment.
“A” argued that the question of age was an objective fact that the court must decide.
Giving the lead judgment, Lady Hale said the question of age had a “right or a wrong answer”, and where a dispute arose, “the court will have to determine where the truth lies on the evidence available”.
Purkiss says the judgment has “far-reaching constitutional importance” as it suggests questions of fact must be resolved by the courts and not by decision-makers employed by public authorities.
“Local authorities should now be more cautious about assessing these young people as adults when they know the decision can be taken by the courts,”he adds. To avoid the High Court being flooded with cases Purkiss is asking local authorities to “make better and fairer decisions”.
He is also urging the government to set up a new tribunal within the First Tier Tribunal system to deal with cases where disputes remain.
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