A LOCAL AUTHORITY v THE MOTHER & Anor

This judgment concerns a fact finding hearing to determine the age of X. The parents are both Afghan citizens, their English is limited, and they have been assisted through a 5-day fact find by interpreters. For this reason, I will give my conclusion now without the reasons so that the parents can understand the conclusion and then the reasons can be interpreted for them later.

My conclusion is that, on the balance on probabilities, I find that X is 10 years old. Largely but not wholly on the basis of the Father’s immigration history and X’s dental records. I will now move to the full judgment.

X is an Afghan citizen who came to the attention of the Local Authority and police on 10 January 2022 after she had approached a park liaison officer. She said that she was 16 years old and had been assaulted by her father and her brother. She was taken into police protection but subsequently withdrew these allegations and said that she was in fact, at that stage, a 9-year-old.

The current position is that both she and her parents claim that she is now 10 years old, it being some 10 months later. I held a 5 day fact finding hearing to determine X’s true age.

On 10 January 2022, X approached a park liaison officer in a distressed state. She said in broken English, “help me, police.” During that conversation she said that she was 16 years old, but her parents had told her to lie about her age. They had told her, she said then, to say that she was 10 years in order that she could go into a lower class at school. The same evening X spoke to police and made allegations of assault against her father and her brother. She repeated that she was 16. Although the police interview started in English, an Urdu interpreter then attended on the telephone. I have watched body cam footage of that interview.

X signed a statement saying that she did not wish to pursue an allegation against her parents. She repeated to Sergeant Nasheen at about 8:30pm that she was 16. She said that her parents had told her to lie because her father wanted her to get an education in England and did not want either X or her parents to be placed under pressure for her to be married at 16 in Turkey, where she and most of the family had been living. She was adamant in her account and said that she feared for her safety and was in danger.

Rebecca West, the duty social worker who attended the police station and transported X to her placement that evening, spoke to X. Ms West only had limited conversation with X, but X asked in the car whether she could change the date of birth on her passport and that she did not want to be regarded as an 11 or 12 year old. Ms West also recorded that X asked about whether she would be given sanitary products at the placement during the same conversation.

I note at this point that X is a native Pashtu speaker. She speaks some Urdu and not very much English. Sergeant Nasheen is an Urdu speaker. There is therefore some scope for misunderstanding in what X was saying at that stage, although the gist of what X was saying, namely that she was 16 and her parents had told her to say that she was much younger, is clear. I also note, having watched the bodycam footage, that it appears to me that X did understand quite a lot of English. She was clearly responding to questions posed to her in English in a way that strongly indicated she understood the questions.

By the 12 January 2022, X was saying that she had been lying and that she was “crazy.” On that day there is a report from the placement about X’s behaviour. They said that she was very unsettled and kept coming into the room to ask for the wi-fi password and was extremely anxious. The log from the placement makes it clear that X had at least spoken to her older sister, I, before she changed what she was saying, and it may be that she had spoken to other family members.

An application for a care order was made on the same day and the Interim Care Order was made on 13 January 2022. On that day, X attended a child protection medical with her parents present and her parents claimed she was 9 years old. Dr Williams, who was the paediatrician, said in his report that he thought this was very unlikely.

X has been in the placement since the 10 January 2022. As set out above, she has maintained that she was born in 2012 and that her initial story was untrue. The placement logs recalled a number of matters which the Local Authority say support their case that X is much older than 9 or 10. Examples include when she was taken shopping, that she was immediately interested in buying make up; that she watches films that are suitable for a much older child; and that her general interests seem to be those of an older child.

All parties agree that it is critical to determine X’s true age before any decisions are made about what happens next. Therefore, a fact finding hearing was ordered to determine this matter before the making of any welfare orders.

The chronology of the family, as stated by the parents and as at some points supported by the documentary evidence, is as follows. The Father was born in 1970 and Mother in 1978. They were married in 1994 in Pakistan. Their eldest child, I, was born in 1996. She now lives in Turkey and has two children. Her husband lives in the UK and it appears they cannot live together for immigration reasons. G, a boy, was born in 1998 and he sadly died in Pakistan in 2015/16. N, a boy, was born in 2000, he is married and lives in Turkey.

The Mother says in her UK entry form that she and the family moved to Pakistan from Afghanistan in January 2001. In March 2002, the father travelled to Afghanistan for a funeral. At this time the Mother was pregnant with twins. The Father did not return to Pakistan and Mother says that she did not know what had happened to him for a prolonged period. The Father’s evidence was that his father was a senior person in a group in Afghanistan that was in conflict with the Northern Alliance. That led him to having to leave Afghanistan in considerable danger and later to the fear that the family, both when they lived in Pakistan and subsequently in Turkey, were themselves in danger from factions in the Afghani community. The detail of this conflict is not relevant to the court determination, but it does set the context to the family history.

On or just before 12 July 2002, the father arrived in the UK as an unlawful entrant. He claimed asylum and was fingerprinted. His application was refused and there was then a subsequent appeal which was itself refused. He became appeal rights exhausted on 23 January 2003. His case is that he remained in the UK for the following 8 years.

In around December 2002, the Mother was told that the Father was alive and living in the UK. On 20 December 2002 the twins, T and K, were born.

On 6 January 2009, the Father made further submissions to the Home Office. These were rejected with no right of appeal. The Father said in evidence that throughout his time in the UK, i.e., from 2002 until now, he has lived in this same area. He says that up to 2011, he never left the UK because he would not have been able to re-enter. On 29 July 2011, the Father was issued discretionary leave to remain in the UK until 2014. This meant that he could leave the country and re-enter lawfully. On 16 August 2011, the Father was issued with an Afghan passport. Soon after, he travelled to Pakistan with an entry date of the 30 August 2011. There is a passport stamp which confirms that date. On the 17 November 2011, the Father returned to the UK. The parents say that it was during this period that X was conceived.

On 10 May 2012, the parents say X was born in Peshawar, Pakistan, in a refugee camp where the family had been living. This is the date of birth entered on X’s Afghan passport and on her Turkish Residence Permit. There is a certificate issued by the hospital in Peshawar, where she was born, that confirms her name, the names of her parents and the date of birth. An expert report was commissioned in these proceedings that says to the best of the investigator’s belief, this certificate is genuine and is based on the records in the hospital. I do not question the good faith of the investigator, but the veracity of the certificate is impossible to establish, and I put limited weight on this particular piece of evidence.

On the 18 March 2015, the Father was granted discretionary leave until March 2018. In 2018, the Father was granted indefinite leave to remain in the UK. The Father can therefore now come and go from the UK as he pleases.

I, the oldest sister, was married in Pakistan in 2014. The parents told me in evidence that the whole family attended the wedding, including X. However, there are no photographs of the wedding, with or without X, produced before the court.

In 2016, G, the oldest boy in the family, was killed in Peshawar when aged 16. The evidence given by the Father is that this was part of the violence that related back to the Father’s position in Afghanistan. This event was naturally deeply traumatic for the family. It is somewhat unclear the degree to which X knew what was happening; on the parent’s case she would have been a four year old, or if she saw G’s body. However, the death of her brother may be one factor in the behaviour she has subsequently exhibited.

Shortly after G’s death, the Mother and the children moved to Turkey because of their fear of further violence in Pakistan. The Father travelled regularly to Turkey to visit the family and I have seen various photographs of the Father with family members in Turkey.

On 22 April 2021, X, her mother and T and K were granted entry clearance into the UK as dependents of the Father. On 13 July 2021, the family travelled to the UK to live with the Father. In September 2021, X started school. A statement has been given from the school in which they state that X attended regularly (90% attendance) and that she appeared to be doing alright, although she needed extra help in Maths and English.

On 10 January 2022, X came to the attention of the Local Authority as set out above. The Interim Care Order has been continued since 13 January 2022. Paternity testing has been carried out which shows to a very high level of probability that the Mother and Father are X’s parents. Her Honour Judge Harris ordered that a Merton Compliant Age Assessment be carried out, I will refer to that below. On 27 June 2022, the matter was reallocated to me as the Family Division Liaison Judge for the Midlands.

On 1 August 2022, I ordered that X should give evidence remotely via video, with questions asked by Ms Clifford on behalf of the Guardian.

The age assessment was carried out by two qualified and experienced social workers in this field, Ms Opie-Greer and Ms Seymour. Both said in the report that they had carried out a large number of assessments. The age assessment was dated 29 April 2022 and the assessors met with X for about 2 hours. They also had a large number of documents, including the parent’s statements, which exhibited the Father’s paperwork from the Home Office. They also had the original dental report although not the most recent dental table which has been produced. The conclusion of the age assessment was that X was an older child, approximately 16 years old.

The factors which led to this conclusion, which are set out in section 7 of the report, are that X sat still during interview and did not fidget; her use of language appeared more sophisticated than that of a 9 year old; she spoke to the assessors for long periods of time fluently and in-depth whilst apparently understanding the questions; she did not appear to have shared interests with other younger children at the placement; and her interests were more in line with that of a teenager, such as having her nails painted, being interested in make up, Bollywood films and watching TikTok.

Both assessors stressed that age assessment is a holistic process, considering a wide range of matters. There are no single determinative ways of deciding age. In this regard, their assessment is consistent, both with the guidance of the courts and professional bodies, on how to undertake age assessments. There is no one single factor. Care is needed in respect of both appearance and demeanour, both because those factors are subject to enormous individual difference, but also because culture, ethnicity and personal experience can have major impacts on how a child or young person presents.

Both assessors accepted that they had not properly taken into consideration the dental report. The age assessment says that the assessor’s observation was that X had all of her adult teeth. However, the dental records are in fact clear that at the time of the visit, X has mixed dentition with a number of her baby teeth. Dr Patsiamanidis, the dentist, said that it was normally the case that baby teeth were lost between the ages of 6 and 13.

The age assessment proceeded on the basis that X had had her first period and entered menarche because of what she was reported to have said to the social worker on 10 January 2022. However, the log from the placement, which has been produced before this court, referred to X being very upset on 7 May 2022 when she was having her period and had told the workers at the placement that this was her first period and that she had no idea what was happening.

Ms Opie-Greer accepted that she had not considered the material from the Home Office, that the Father had entered the UK in 2002 and had only obtained discretionary leave in 2011, when he then says that he left the UK and travelled to Pakistan, where X was conceived. Ms Seymour said that she had been aware of those dates but then said she could not make any assumptions about whether the Father had travelled unlawfully.

When Ms Opie-Greer was taken to this material, she accepted that she would have to consider the evidence carefully and discuss it with Ms Seymour and consider whether their conclusions would change. Ms Seymour took a much more adamant approach that she did not consider that any of this material would lead her to change her conclusions.

I am sure that both assessors were trying to do their best with the material that they had. I note that Ms Opie-Greer was somewhat distracted when giving her evidence, but she did come across as a careful and considered witness. However, I was surprised that Ms Seymour was very reluctant to accept that the dental records and the evidence as to X only starting her first period in May 2022 did not require further careful consideration. Although neither of these matters are determinative, they are plainly relevant to the age assessment and justify a reconsideration of the holistic exercise in that assessment.

Dr Shenoy, a paediatrician, produced a report and gave brief oral evidence. He accepted that the Royal College of Paediatrics advised against paediatricians making an age assessment given the well recorded difficulties. However, he did say that the record of X’s body habitus was more in keeping with a 16-year-old than a younger child.

Dr Williams, who was the paediatrician who carried out the initial examination on the 13 January and who was not called to give evidence, recorded that X’s height and weight would be on the 99th percentile for a 9-year-old and were more commensurate with an older child.

I heard oral evidence from the Father and Mother. I have no doubt that both parents deeply love X and their other children, and absolutely want to do what is best for them. My sense is that the Father in particular wants the children to benefit from living in England, and for them to take advantage of the opportunities, both in terms of relative safety and education that living in this country offers. I did not find the Father or Mother easy witnesses to assess. There were aspects of their evidence which I found very difficult to accept, and where I do not think, unfortunately, they were being honest with the court.

They both started their evidence by saying that X’s conduct on 10 January 2022, in refusing to go to school, hitting her face and pulling her hair were something that had not happened before. They both said that this behaviour came out of the blue on the 10 January 2022, and they could offer no explanation for why she had become so upset that day and ultimately ran away and run to the police. However, this account from the parents was plainly not true, and certainly was not the whole truth. The evidence is that X had only gone to school in Turkey for some three months, and the parents accepted after some cross examination by Ms Lakin, that X had become very upset when going to school in Turkey and effectively the parents capitulated and allowed her to stay at home. Then the Covid-19 pandemic had intervened and X remained at home and had not gone to school. The Mother had said to the police when interviewed on around 11 January 2022, that it was “not unusual” for X to behave as she had done on the morning of 10 January 2022. However, the Mother told the court that nothing similar had happened before, save for one occasion when X had become upset in Turkey over an incident with an iPad. I do not think the parents were telling me the truth about what had happened on 10 January 2022. However, that does not mean they were lying about X’s age. There may be a whole gamut of reasons for why the parents were very reluctant to be honest about X’s behaviour.

The parents’ evidence was consistent about the chronology between when the Father left Pakistan in 2002, and when he first saw the family in 2011. There are various pieces of documentary evidence relied on by the parents. The Home Office records, and the Father’s Afghan passport support the Father’s evidence that he entered the UK in 2002 and did not return to Pakistan until 2011. The dates he gives, and the Home Office records, entirely accord with X being conceived whilst he was in Pakistan in 2011, and X being born the following year.

The Father produced a number of photographs to the Home Office to establish his case for visas for his wife and children to enter. Those photographs largely support the parents’ chronology, although the Father was oddly evasive about some of the dates and ages, but that might be due to a poor memory and some in exactitude about ages.

There is a photograph of X with family members, including T, which appears to support the relative ages between the children being advanced. However, that does entirely depend on the child in the photo being X, which is difficult to be confident about. There is also a photo of X in her Afghan passport said to be taken in 2019, when she is said to be 7 years old. This is a surprising photo as it very much looks like she is wearing make up and she looks considerably older than 7. I do, however, bear in mind the difficulties of placing too much weight on photographs.

There was a notable absence of other photographs which would help to establish X’s age. I was surprised there were no photos of X at I’s wedding or with her father when he went back to Pakistan shortly after her birth. The Mother said that she lost many records when trying to enter Europe unlawfully in 2019. The Father says he lost two mobile phones which he said he had reported to the police. However, there was no explanation as to why they had not asked I or other relatives to send photographs which would help to establish X’s age.

On 6 October 2022, X gave evidence in a session with myself and with Ms Clifford asking questions. I had determined at a hearing on 22 September 2022 that X should give evidence which would be videoed and shown to the parties before the fact finding hearing commenced. I set out here the recital to that order dated 22 September 2022, at recital e:

That decision was set out in the order dated 22 September 2022 and was not appealed. However, the day before the video evidence was to be given, Ms Ancliffe KC, on behalf of the Father, emailed the court objecting to the process, in particular to the fact that the parents were not to be shown the questions in advance. I note that no counsel had objected to this proposed course at the hearing on 22 September 2022 or, as I say, appealed. No questions had been submitted on behalf of the Father or Mother.

When the hearing began on 10 October 2022, Ms Ancliffe KC and Ms Grocott KC again objected to the process that had been adopted. The evidence of X had been taped and the parents and their counsel had seen those tapes on the morning of 10 October 2022. Ms Ancliffe and Ms Grocott suggested that X should not have either given evidence or that the process was not fair to the parents. Ms Ancliffe suggested that Ms Clifford and I had “muddled up” evidence giving and X’s views on her wishes and feelings.

I do not accept these criticisms. Most importantly, this was a case management decision and if it was to be challenged, that should have been done within the timescales set out by the Family Procedure Rules. It is highly undesirable for fresh counsel instructed late in the process to advance arguments which, if they were going to be raised by the parties, should have been done so at an early stage within the timescales set out by the Rules. The instruction of leading counsel very late in the process is not in itself an excuse for raising new points which could lead to a trial being adjourned. This appears to be a not uncommon scenario in the Family Court cases, and it can cause late adjournments and the consequential delays, which is highly detrimental to the interest of the children. Of course I acknowledge that leading counsel have a duty to their clients to advance arguments on their behalf. But the Court has to be careful to ensure that further delay does not do harm to the children.

All parties should do their utmost to avoid this scenario arising. I would urge the Legal Aid Agency to consider this issue and do their utmost to ensure that decisions about Legal Aid being granted for leading counsel is dealt with expeditiously. I will ask the solicitor for the child to bring this judgment, and this paragraph in particular, to the attention of the Legal Aid Agency.

Further, and in any event, the court’s decision to call X was made after a case management hearing in which the matter was fully considered. It is open to the court to hear evidence from a child, even if the Children’s Guardian is opposed to that course, as she was in this case. That is a decision for the court, not for the Children’s Guardian. In my view, that is particularly appropriate in a fact finding hearing where the child has direct evidence which may be highly material.

However, I and, in fairness to Ms Ancliffe and Ms Grocott, all parties were extremely concerned at the start of this hearing, that the matter did not have to be adjourned. It was plain when I met X that she was desperate to go home and was finding both living in the placement and the litigation extremely stressful. Therefore, it was of the utmost importance not to derail the fact find and adjourn the case. Given that X’s evidence was, in my judgement, of little, if any, forensic benefit, I agreed at the start of this hearing to entirely discount it and placed no weight upon the evidence she gave me on 6 October 2022. I therefore say no more about it.

The Local Authority submitted that the evidence points to X being around 15 or 16 years old. They particularly rely on the story that X initially told on 10 January 2022 and her consistent presentation to professionals, and the judgements of those professionals. The parents both say that X is 10 years old, and I have largely set out their evidence and position above.

The Children’s Guardian, although acknowledging that she is not trained in age assessment, did say in her report that X appeared older than 10 and that she thinks that her presentation, both cognitive and physical, seems to be that of approximately 13 years old. In closing, Ms Clifford, very fairly, simply put before the court the material on either side of the argument.

The parties have agreed a statement of the law which I will largely rely upon. Ms Ancliffe produced a later supplemental document, which is also not contested.

Whether or not a person is a child is a question of objective and jurisdictional fact, which must be ultimately decided by the court. The court will come to its own conclusions on the balance of probabilities in the light of the evidence before it. These propositions are set out by the Supreme Court in R (A) v London Borough of Croydon [2009] UKSC 8, [2009] 1 WLR 2557.

The approach to age assessment was summarised by Thornton J in R (AB) v Kent County Council [2020] EWHC 109 (Admin), [2020] 4 All ER 235 at [21], and I gratefully adopt the points she made. I do note that the vast majority of age assessment cases arise in the immigration context where the fundamental issue is whether the person was under or over the age of 18 when they entered the UK. Usually the age range, although it may be as large as in this case, relates to significantly older children or older people, so some of the principles are a little different here.

Firstly, in reaching the determination of a person’s age, there is no concept of a burden of proof. In other words, there is no burden of proof on the applicant to prove his or her age.

Secondly, the court acts in an inquisitorial role and determines age on the balance of probabilities.

Thirdly, there should be no predisposition divorced from the information and evidence available to the Local Authority to assume the person is an adult, or conversely a child.

Fourthly, the benefit of any doubt should be given to the individual person since it is recognised that the age assessment is not a scientific process.

Fifthly, age cannot be determined solely on the basis of appearance, except in very clear cases. Physical appearance is a notoriously unreliable basis for an assessment of chronological age.

Sixthly, demeanour is also a notoriously unreliable tool and by itself only constitutes somewhat fragile material.

Seventhly, as with physical appearance, little weight can be attached to photographs as they are not three-dimensional and can be affected by light, exposure etc.

Eighthly, the applicant should be given an opportunity to explain any inconsistencies in his or her account or anything which is likely to result in adverse credibility findings.

Ninthly, the court is not obliged to nail its colours to the mast on a firm date of birth but can assess what is the most likely range of dates proffered.

Tenthly, the process of determining the age is one of assessment in the absence of any reliable anthropometric test and involves the application of judgement on the basis of a number of factors.

Eleventhly, paediatricians’ views can be taken into account, but are not likely to be more reliable or helpful than those of experienced social workers.

The additional legal points that Ms Ancliffe draws attention to are ones that the Family Courts in fact finding cases are very familiar with. First of all, the various statements about the need to be careful about placing undue reliance on demeanour, as set out by Leggatt LJ (as he then was) in R (SS (Sri Lanka)) v Secretary of State for the Home Department [2018] EWCA Civ 1391 at [41] and reinforced by Peter Jackson LJ in Re B-M (Children: Findings of Fact) [2021] EWCA Civ 1371 at [26].

Secondly, there is a need for caution in respect of lies as set out in R v Lucas [1981] QB 720 and reinforced by McFarlane LJ (as he then was) in Re H-C (Children) [2016] 4 WLR 85, in particular a lie is not a direct proof of guilt and that people can lie for all sorts of different reasons, and the fact they have told lies about one thing does not mean they tell lies on something else.

The need for caution in respect of photographic evidence has already been referred to.

There is a need to consider documentary evidence together with other evidence, and not in isolation. One has to consider the weight to be given to particular documents.

There is also a need for evidence to not be evaluated in separate compartments, but instead to take a holistic view of the totality of the evidence: see Re T (Children) (Abuse: Standard of Proof) [2004] 2 FLR 838 at [33] per Dame Elizabeth Butler-Sloss P.

I have found this to be a very difficult case to decide. Although there is no burden of proof on either party in an age assessment, the burden is on the Local Authority in Children Act 1989 proceedings to establish the threshold, and therefore in practice it is upon the Local Authority to show that X is not 10 but is closer to 16.

There are strong reasons to believe X is 16 or much closer to that age than 10. X was adamant this was the case when she spoke to the park liaison officer, Sergeant Nasheera, the Police and Ms West on 10 January 2022. It is an unlikely story for a 9-year-old, as she would then have been, to make up. She might have said initially that she was 16 because she was angry with her parents and because being older would have allowed her more freedom. However, to maintain that position with a number of people and make up the story about her father wanting her to have an education and not feel pressurised into having her married, is a very sophisticated story for a 9-year-old.

Further, the age assessors and others who have been with X, feel that her behaviour is much more in keeping with that of a 15 to 16 year old, than a 9 to 10 year old. Her conduct in the age assessment interview, both in terms of sitting still and her language; her interests including Bollywood films and TikTok; her immediately wanting to buy make up when she went out shopping with placement workers; her apparent lack of interest in younger children’s toys; or children who are younger are all factors indicating an older child.

I treat the age assessment itself with some caution because of the matters which were not properly taken into account, such as the dentition, the evidence as to X’s first period and the Father’s immigration history.

However, balanced against the factors pointing to her being an older child, I am very conscious that X’s life experiences are far from those of a normal British child. She has had the highly traumatic experiences of her brother being killed, her parents living apart, growing up in a refugee camp, travelling from Pakistan to Turkey with the family being in considerable fear, a failed attempt to get into Europe in 2018 which must itself, on the Mother’s evidence, been very frightening, and very importantly virtually never having gone to school until she came to the UK and therefore having very limited contact with her peers. These are all factors which could make her appear older than her years.

The dental records point strongly to her being younger. Dental records are generally unhelpful in an age assessment, but that is because the normal case is trying to establish whether a person is over or under the age of 18 and the dental evidence is that of third molars which are subject to very wide disparity. In this case, the key issue is that X has a number of baby teeth, which would be very unusual in a 15 to 16 year old. This is not determinative as there will always be outliers, but it is a weighty piece of evidence.

There is also the evidence in respect of her periods. The age assessors had assumed that X had started her first period because she asked about sanitary towels in the car on the way to the placement. I have to say, this does seem extremely odd if she hadn’t had her first period. However, the log from her placement is strong evidence that X had her first period in May 2022. She would have had to be a very good actor to have persuaded the placement that this was her first period when it was not. Whereas it would be relatively common for a 10 year old to enter into menarche, it would be unusual for this not to happen until the girl was very nearly 16. Again, this is not impossible, but is a strong indicator of a younger child.

The strongest evidence in favour of X being younger, is the Father’s immigration history. He illegally entered the UK in 2002, and did not lawfully leave until 2011, which accords with the dates the parents say X was conceived. As Ms Lakin says, it is not impossible that the Father left the UK in the interim, perhaps on a false passport, but there is no evidence to support that suggestion. It would be very unusual for someone who had unlawfully entered, presumably at considerable risk and expense, to then leave the UK in order to re-enter unlawfully, again presumably at considerable risk and expense.

Pulling all those factors together, I have concluded that it is more likely, on the balance of probabilities, that X is 10 rather than 16, the primary evidence for this being the dentition and the Father’s immigration history.

Those are my findings.