Upper Tribunal Judge Rintoul’s elegant, succinct summary of the law on age assessment, with which he opens the determination in R (AS) v Kent County Council (age assessment; dental evidence) [2017] UKUT 446, reminds us that pinpointing the age of a young person claiming asylum, other than where there is documentary proof, is an art, not a science. It is a question of fact for decision by the court or tribunal itself, as the Supreme Court explained in R (A) v London Borough of Croydon [2009] UKSC 8.

When the decision-maker is left in doubt as to whether a person is over 18 or not, the child is given the benefit of the doubt. But, the tribunal held, the benefit of the doubt principle does not assist in determining that the person was born on a specific date, or is a specific age. If a child is determined to be between 15 and 17, the benefit of the doubt does not mean that they should be determined to be 15.

What the tribunal did not say, and arguably should have said, is that where a person says that they are 15 and it is determined that they are between 15 and 17, they should be treated, unless there is good reason not to do so, as being the age they say they are.

It may be that the reason that the determination does not yield that clear statement is that it would not have assisted in resolving the case.  The Upper Tribunal found the majority of the witnesses before it: Professor Graham Roberts, who has long championed dental x-rays; AS, the claimant; and various social workers, to be at best unreliable. In the end it was the last men (and they are men) left standing as reliable witnesses, a social worker and a social work assistant, whose evidence carried the day.

Both Professor Roberts and Professor Tim Cole, the medical statistician who has long been pitted against Professor Roberts, gave evidence in the case. Both are considered expert witnesses and “not to lack the requisite impartiality”. In an interesting aside, Judge Rintoul observed that

The rules of evidence applicable in the Upper Tribunal do not prohibit the giving of opinion evidence (other than by an expert), albeit that little weight could be given to opinion evidence not coming from an expert.

There is a detailed exposition of the evidence of both Professor Cole and Professor Roberts in the determination, which repays study by practitioners who have struggled to understand the disputes between them. Of Professor Cole, little more is said. Not so Professor Roberts. After a comment about his evidence being “not what we would expect from an expert witness” [paragraph 113], the Tribunal concludes:

118. .. there is here a pattern in Professor Roberts’ conduct. There is a strong tendency to overstate the value of research he has undertaken and his methodology. This extends to overstating the weight of the validation of his work…

119. Further, and of greater concern, is the significant evidence of him giving assurances about future conduct when faced with the flaws in his methodology yet failing to put them into practice.

120. We regret to say that we did not on this occasion find Professor Roberts to be a reliable witness. Nor do we find that [Mandibular Maturity Markers] are of any use in assessing age.

One of Kent’s social workers comes off little better, with doubt cast on her “professionalism and reliability as a witness” [paragraph 219] and a conclusion that she was neither a reliable nor an objective witness [220]. Objectivity and professionalism are not expected of AS, but he is found not to be reliable or credible [245].

“Inaccurate, inappropriate and unethical”

Age is disputed seemingly as a matter of course by many local authorities and by the Home Office. It is often asserted by the former that their child protection responsibilities require it.

This is dubious: no child protection policy worth its salt takes as its starting point chronological age. There are 15 year olds who pose a risk to other 15 year olds, and there is a world of difference between a 20 year old and a 40 year old hanging around a bunch of teenagers.

Doubts about age can poison all judgements on the “credibility” of a child or young person. The effect on that child or young person can be devastating. A teenager wrongly accused, for example of lying about their whereabouts, is angry, indignant and often frightened. How much more so when that teenager is already isolated and without support networks, in need of being believed to access protection? The benefit of the doubt requires that children are believed unless there is good reason not to do so.

This determination would have been improved by a clear statement that exposing a child to ionising radiation for no therapeutic purpose is unethical and that those who do so, in some cases at the instigation of the child’s legal representatives, fail to respect the notion of informed consent, freely given. But perhaps the determination will achieve the same end, by putting an end to reliance on such evidence. Remember the statement last year :

We do not use dental x-rays to confirm the ages of those seeking asylum in the UK. The British Dental Association has described them as inaccurate, inappropriate and unethical.

Those are the words of a Home Office spokesperson. Local authorities need to line up with the Home Office and the professions in rejecting this evidence.