Tessa Buchanan appeared for the applicant, AS. She was led by Ian Wise QC of Monckton Chambers and was instructed by Edward Taylor of Osbornes Law.
The Upper Tribunal has handed down judgment in AS v Kent County Council, a case which raised “specific issues of wider importance” to age assessments generally (paragraph 2).
The Tribunal noted that the case raised three issues of wider significance. The first of these concerned the reliability of dental age assessments, which Kent sought to adduce as evidence that AS was aged around 24. The Tribunal concluded firstly that there was no reason to depart from the conclusion reached in the previous case of R (ZM & SK) v London Borough of Croydon [2016] UKUT 559 (IAC) in which Upper Tribunal Judge Ockelton had found that the fact that all teeth had reached the final stage of development was not a reliable indicator as to whether the individual was over or under 18. They then considered the utility of mandibular maturity markers and decided that these too were of no use in assessing age. They also criticised the expert relied on by Kent who they found was not, on this occasion, a reliable witness.
The second issue was about the use by Kent of a booklet of photographs of so-called “typical” young people of various ages. The Tribunal found that these were of “no evidential weight whatsoever” (paragraph 211).
Finally, the Tribunal considered the proper application of the benefit of the doubt. They held that it was “an acknowledgement that age assessment cannot be concluded with 100% accuracy, absent definitive documentary evidence”. Where there was a doubt as to whether an individual was over 18 or not, then the benefit of the doubt mandated the conclusion that the applicant was under 18. It was not of use where a specific age had to be determined “except insofar as it requires a sympathetic assessment of the evidence” (paragraph 21).
The Tribunal concluded that AS was 19. Importantly for him, this meant that he was still a child – and remained so for a year - when taken into care by Kent.
Tessa Buchanan is a barrister at Garden Court Chambers. She is a member of the Court of Protection Team.
