In a latest determination, Mohammed Ismael Suliman Abdullah for judicial assessment [2024] ScotCS CSOH_8, the Court docket of Session clarified that when a teenager is looking for for a courtroom to make a discovering in relation to their age in Scotland, the motion needs to be raised as a declarator of age (asking the courtroom to determine age as a matter of truth) as judicial assessment isn’t the suitable treatment in these instances.
Earlier than studying this, it is likely to be helpful to look again at this piece, the place we explored problem an age evaluation.
Background
The petitioner on this case was a Sudanese younger asylum seeker who entered the UK in 2021, stating he was 17 years previous on the time. His acknowledged date of delivery was accepted by the native authority and he was taken into care.
In August 2021, he was charged with a critical offence and remanded to a Younger Offenders’ Establishment. At that time, the legal courtroom queried his age and two social staff from the Residence Workplace carried out a full age evaluation on behalf of the native authority, discovering him to be at the least 22 years previous. The petitioner’s solicitors challenged the evaluation and instructed a report from an impartial social employee, supporting his acknowledged age. In 2023, the petitioner was sentenced to 7 years’ detention.
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On this case, the petitioner was looking for a discount of the evaluation carried by the Residence Workplace on behalf of the native authority however he additionally requested the courtroom to find out his age, looking for a declarator (declaration) to that impact.
Age: who has jurisdiction?
The decide on this case requested each events to make submissions as as to whether the courtroom had jurisdiction to find out the petitioner’s age. The choice ended up specializing in this procedural difficulty, over the substance of the evaluation that was being challenged.
The courtroom referred to the case of R (on the applying of A) v London Borough of Croydon [2009] UKSC 8 the place the Supreme Court docket discovered that, while it’s for social staff to hold out age assessments within the first occasion, it’s finally for the courts to find out a teenager’s age as a matter of truth, within the case of a dispute. At paragraphs 52-54, Lord Hope discovered that:
The query is whether or not the particular person is, or isn’t, below the age of eighteen. Nonetheless tough it could be to resolve the problem, it admits of just one reply. As it’s a query of truth, finally this should be a matter for the courtroom. [..] As for the sensible penalties, the method begins with the finishing up of an evaluation of the particular person’s age by the social employee. Resort to the courtroom will solely be essential within the occasion of a problem to that evaluation.
The courtroom then thought of that, as a result of related constructions of the related provisions of the Kids Act and the Kids (Scotland) Act, this precept should subsequently apply in these instances in Scotland. On this level, the courtroom departed from the earlier case of L v Angus [2011] CSOH 196 and finally discovered it’s the courts, not the native authorities, which have authentic jurisdiction in these instances in Scotland.
Judicial assessment not an applicable treatment
Having established that courts have authentic jurisdiction, the query that the courtroom was left with was how this needs to be exercised. The courtroom famous that in R (on the applying of A) v London Borough of Croydon, the Supreme Court docket needed to train some creativity and located that judicial assessment was nonetheless an applicable treatment in these instances, regardless of the dedication of age being a matter of truth.
That is the place the decide determined to depart from the Supreme Court docket judgment. Contemplating the follow of Scots legislation and the completely different courts, the Choose finally discovered that an abnormal motion for declarator could be essentially the most applicable treatment the place a teenager is asking a courtroom to find out their age. He notes that , in an motion for declarator, the courtroom would be capable of hear proof from a teenager and to think about some other proof and make an evaluation of details concerning a teenager’s age.
Nonetheless, the decide went even additional and, departing from the earlier case of U v Glasgow Metropolis Council [2017] CSOH 122, discovered that judicial assessment would usually not be a competent treatment in these instances for 2 causes.
Firstly, he famous that judicial assessment is a mechanism that ought to solely be used as a remaining resort, as soon as all different treatments have been exhausted. He famous that, in these instances, an abnormal motion for declarator shall be all the time accessible as a treatment first.
Secondly, he famous that judicial assessment is barely competent in instances the place a public physique has authentic jurisdiction to decide and stated determination is being challenged. As, within the courtroom’s view, native authorities don’t maintain authentic jurisdiction in these instances, judicial assessment can’t be a reliable treatment.
The place can we go from right here?
This determination constitutes a major change for practitioners working with age disputed younger individuals in Scotland. Previous to this, the place was that age evaluation choices could possibly be challenged on the Court docket of Session by the use of judicial assessment and, when applicable, petitioners might additionally request a declarator of age, asking the Court docket of Session to hold out a truth discovering train (as set out in R (on the applying of A) v London Borough of Croydon & U v Glasgow Metropolis Council [2017] CSOH 122).
This determination makes it clear that that judicial assessment isn’t the process to resolve an age dispute, however that an motion for declarator needs to be raised as an alternative. This seems to be the case because the Choose makes it clear that native authorities don’t maintain authentic jurisdiction and, subsequently, the Court docket of Session doesn’t maintain supervisory jurisdiction over these choices.
With this interpretation, it could comply with the one manner for a teenager to problem an area authority evaluation going ahead could be to boost an abnormal motion for declarator, which means that each one age assessments courtroom actions will turn out to be truth discovering.
This raises plenty of issues by way of anticipating younger individuals to present proof in courtroom in each case but in addition on the burden the courtroom will place on age evaluation stories and witness proof in addition to how outfitted courts are to listen to these instances within the first place.
Because the decide means that these instances needs to be raised as abnormal actions, the expectation in follow could be for these to be raised on the Sherrif Court docket within the first occasion, which has by no means been the follow in Scotland. As such, sensible difficulties may also come up round fund these instances and to what lengthen authorized support shall be made accessible.
Conclusion
In my follow, I’ve witnessed a pointy improve in age assessments being carried out by native authorities in Scotland during the last yr. It’s onerous to pinpoint precisely what’s behind this however definitely the stress and narrative coming from the Residence Workplace and UK authorities doesn’t help. Because the variety of age assessments goes up, this inevitably ends in extra detrimental choices that younger individuals search to problem.
This determination could be very vital as it can give courts wider powers to find out younger individuals’s age which is kind of regarding for the sensible causes explored above. This may even improve the workload and stress on practitioners working on this space who shall be anticipated to run full proofs on the Sherrif Court docket to get a teenager’s age decided in each case. This may even improve pressures on the authorized support system, which is already in disaster.
It will likely be very fascinating to see if this determination and its implications shall be overturned in litigation within the close to future but in addition whether or not courts in England would possibly have a look at this difficulty once more.
