The Queen (on the Application of C) v London Borough of Merton [2005] EWHC 1753 Admin

This was a claim to quash the decision of the London Borough of Merton (Merton) in denying a young female asylum seeker (C) support under the Children’s Act 1989(CA). C claimed to be born on 29th November 1987, making her 17 at the time of her request for support.  A birth certificate produced to corroborate this claim but she was turned down by the Home Office, who believed that she was over the age of 18.  Merton also refused her application for support under the Children’s Act Part 3.  C was then referred to the Refugee Council which is standard procedure in such cases.   The Council pursued the matter on her behalf and arranged an interview with a general paediatrician, considered to be an expert in carrying out age assessments of this nature.  He estimated that C was 17 years old plus or minus 2 years.  He was satisfied that there no inconsistencies in explanation that she gave him in relation to her age.

In the light of the paediatrician’s report, a request was made for Merton to re-assess her claim for support.  Following further reports completed by social workers based on an interview with C, they stated that C presented as a ‘vulnerable adult’ and did not ‘physically look’ 17 years old.  They estimated her age to be at least 25 years.  The decision following this assessment report was to again deny her claim for support.  Proceedings were commenced and interim relief was granted by the court.  A further assessment of C was agreed to by Merton and a lengthy interview took place.  It was decided that a second interview would take place following which Merton would make a final decision in relation to C’s claim.  Her claim was denied second time by Merton in a letter, which stated that although it had considered the paediatrician’s report, it did not believe that C was under the age of 18.  The letter also commented that there were inconsistencies between the original application and subsequent interviews and therefore C not entitled to support and services under the CA.  The age assessment was provided to C in a different document, which purported to provide information about how the decision was reached.  Although this document made reference to it, there was no explanation as to why the paediatrician’s report was rejected.  Reference was also made to C’s birth certificate as a matter taken into consideration, but rejected since it could not “seriously be considered as proof of (her) date of birth.”  This was the final decision by Merton and that which was subsequently challenged in judicial review proceedings.

C claimed under 3 main heads:

(1) Merton had failed to carry out a fair and lawful assessment.
(2) It failed to have adequate regard to C’s birth certificate.
(3) It failed to properly assess the paediatrician’s report.

The court found the main substance to C’s claim was in the third ground, and identified that nowhere in any correspondence or document did Merton explain why it did not agree with the paediatrician’s report. It found that an explanation was called for but was not forthcoming as to why C’s claim had been rejected.  The court held that such an explanation could have been given but it was not.  It decided that this ground was made out but rejected the first two.  Ground (2) on the basis that it was without substance and that Merton was entitled to find that the birth certificate was not persuasive evidence.  Ground (1) was rejected since it merely sought to displace Merton’s role as the decision-maker.    The court commented it wished to avoid the “judicialisation” of the decision-making process.  Merton’s decision not to provide support was quashed, despite the decision of the Immigration judge in rejecting C’s claim for asylum

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