The High Court has rejected an application for the permission of both a judicial review and an order for interim relief to provide age appropriate accommodation to a young person (YP), who social workers had previously age assessed to be an adult. This judicial review claim concerned whether the claimant was (and still is) a “child”, for whom the local authority (LA) had (and still has) legal responsibility for because the YP claims he was 17 years and 8 months old.
The claimant arrived in the UK in April 2021, after an arduous one-year journey from Iran. The LA completed a brief enquiry at the initial point of contact and determined that the claimant was over 25 years of age. However, they went ahead and completed a full age assessment, which also concluded the claimant was an adult. The LA subsequently completed an “addendum assessment”, following a request by the claimant’s solicitor due to further evidence and views being provided by the young person’s development worker from an advocate. Following this addendum assessment, the LA adopted an age of 20 for the claimant.
The assessing social workers followed the ADCS guidance ensuring the provision of breaks, adopting a trauma informed approach and taking into account other relevant factors such as culture, trauma and the opinions of third-parties. The judgement highlighted that:
“The assessing social workers recognised that the Claimant struggled to engage in conversations around his family and the deaths of particularly his mother, sister and friend”.
During the interview, the assessing social workers took a holistic approach, allowing appropriate breaks, changing the topic when he was struggling with traumatic events and perhaps most importantly not holding this difficulty in “engaging in conversations” against him.
Similarly, the assessing social workers described that the claimant’s “confusion” and “short responses” were “lacking in detail” but put this down to being “much more likely to be due to [communication] skills being underdeveloped and a lack of worldly experience, rather than due to a younger age”. Therefore, the assessing social workers, in a fair and balanced way, deliberately did not hold these presentations against the claimant.
The case law is clear, the benefit of doubt should always be given to the unaccompanied asylum seeking child since it is recognised that age assessments are not a scientific process and that a “five year margin of error” should be applied. During this interview the assessing social workers not only adhered to this principle but went further, affording the claimant the benefit of doubt when completing the full age assessment, although they concluded in their brief enquiry that they were clearly over 25 years old:
“It is the assessing social workers’ opinion that [the Claimant] is most likely to be closer to 25 years of age [than being under the age of 18 as claimed]. However, in order to give [him the] benefit of the doubt due to his rural largely outdoor living experiences, we conclude that he is assessed to be 20 turning 21 on the 8th July [2021].”
Following the brief enquiry in April 2021, undertaken by two social workers, it was decided that a full age assessment should commence. This was felt to be appropriate, even though in “normal circumstances there would be no need to assess further” an individual that the two social workers stated, “appeared visually likely to be over 25”. The full age assessment was carried out “in order to give [the Claimant] the benefit of the doubt following his difficult journey”. Moreover, the defendant took the position that it was appropriate to “be fair and start from an unbiased [and] uninfluenced stance”, with “two separate social workers to those initially involved”; to complete the full age assessment.
It is important to highlight that the assessing social workers who conducted the brief enquiry were different to the duo who completed the full age assessment, to avoid any bias or influence from the assessing workers. However, the claimant’s solicitor criticised the LA for using one of the same social workers to complete not only the full age assessment but also the addendum assessment. Despite this criticism, the judge found nothing inappropriate and described the action of the LA to be appropriate and fair. This reveals the importance of considering the case holders responsible for completing the assessments. The LA needs to avoid a conflict of interest by using different social workers for the separate assessments, to avoid the potential for challenges by the claimant’s solicitors and to appease the judge.
The assessing social workers deferred the minded to discussion to a later date due to some confusion around different phrases being used by the Iraqi Kurdish Interpreter and the YP. In light of this, the assessing social workers ensured that they provided the correct interpreter who spoke the dialect (Iranian Kurdish) for both the readback session and the minded to discussion. The claimant’s solicitor argued that the assessors should have started the whole assessment over again, with a new interview session employing an Iranian Kurdish Interpreter. In response, the judge summarised that:
“In my judgment, it was conspicuously fair and balanced, and nothing further was necessary than, for the social workers to recognise – as they did – that although the Claimant “continued to say that he understood the [Iraqi Kurdish] interpreter fully”, the assessing social workers felt (as did the appropriate adult in attendance) that the ‘minded to’ meeting should be “continued on another date, when a full read back of the assessment could be undertaken with an Iranian Kurdish interpreter, ensuring that [the Claimant] fully understood the assessment and that any changes could be amended or additional information provided”. By way of an illustration the Age Assessment document records that it was during the deferred ‘minded to’ meeting that “more specific detail” was provided as to age and how the Claimant was saying that “he knew he was below the age of 18”.
The Judge’s summary further highlights the importance of the readback session, something that we emphasise during our training. Although the read back is not a case law requirement, it helps to check the accuracy of the information and to clear up any confusion.
It is essential to ensure that age assessments are as holistic as possible, drawing on third-party opinions where available. However, these opinions need to be balanced, with consideration given to the degree of weighting that should be placed on the other professional’s views, with their expertise in mind and providing evidence to back up their opinions on the age of the separated migrant.
In this case, the assessing social workers highlighted the difference between the trained and experienced social workers to the advocate working directly with the YP. They did not discredit the vital role the advocates play in the life of a vulnerable young person, rather they highlighted the differences in opinion to provide a weighting that was fair, balanced and case law compliant. In summary the Judge stated that:
“So far as [advocates] evidence are concerned, the social worker assessors addressed the features of her letter. They made fair and proper points: including about the training and experience that she was describing in her letter; and including a fair and proper point about the difference between an advocate and trained social workers assessing age. Even if I focus on the fresh and updating witness statement of [the advocate], positing a substantive hearing, and taking it at its highest, in my judgment the factual points made an opinion – expressed by reference to observed demeanour and behaviour – are not ones which could properly succeed, at a contested factual hearing alongside the other factors and circumstances of the case, to displace the conclusion that the Claimant was over the age of 18 in May 2021.”
Therefore, it is important for social workers to have confidence in their own abilities, they are the experts when working with children, a fact that is validated by the judge in his summary. Social workers are typically well trained in gathering information, analysing the merit of each piece of evidence and drawing well balanced conclusions at the end of their reports. They are also trained to work in a child friendly manner using trauma informed approaches, this expertise needs to be recognised and promoted, particularly with regard to making professional judgements.
A full copy of the judgement can be found here
