Age assessment practice guidance for Scotland

Appendix 7: List of Relevant Case Law

Please note that the case law referred to in this guidance is intended to illustrate cases that are relevant to age assessments at the time of drafting this guidance. This is a developing area of law, therefore, the case law is subject to change. The cases referred to in this guidance should be used for reference only. Should you encounter a similar legal issue, we would recommend that you seek up to date independent legal advice.

Issue: Approach of Courts

R. (on the application of AI) v West Berkshire Council [2025] EWCA Civ 136

The question of reasoning in age assessment cases is fact and context specific. As such, the circumstances of each case will dictate how much reasoning is required.

The tribunal’s role in age assessments is inquisitorial rather than adversarial, meaning they are not required to adopt one party’s case or another but rather decide based on the facts of the case. Furthermore, as a matter of principle a tribunal may choose a different date of birth than that presented by the parties, but it is not obligated to do so. The tribunal’s decision should be based on the specific circumstances and material issues before it in the case.

Ahmat v Aberdeenshire Council [2025] CSOH 15

The court questioned the reliability of both A’s self-reported evidence and the method used by the defendant’s social workers to assess his age, deeming the assessment inadequate. His evidence was largely self-reported and contained inconsistencies and evasive responses, which weakened the validity of his assertions.

The social workers for the defendant conducted a brief age assessment, primarily based on A’s physical appearance and demeanour. The court found this approach insufficient and not aligned with best practices for age assessments, which typically involve a more thorough process.

Ibrahimi v Glasgow City Council [2025] CSOH 14

As there were no pending applications or decisions relying on the age assessment, the court considered the matter to be academic. Given this point and that the claimant was already 18, the court did not need to rule on further

R. (on the application of LS) v Warrington BC [2024] EWHC 2872 (Admin)

The potential harm to the claimant, especially in terms of mental health and loss of support, outweighed any potential harm to the defendant.

Therefore, interim relief was granted, meaning the claimant should be treated as a child until the final decision on her age is made.

R. (on the application of KRA) v Cheshire East Council [2024] EWHC 575 (Admin)

The evidence raised a factual case which, taken at its highest, could properly succeed in a contested factual hearing. The claim was not weak and there was a very real prospect of success. The reliable test was whether the material before the court raised a case which, taken at its highest, could properly succeed in a contested factual hearing. There was no higher threshold requiring the claimant to have a strong prima facie case. Instead, the court's provisional assessment of the claim's strength or weakness could be a factor which informed the balance of justice. This stage of the test involved balancing (a) the risk of injustice where a claimant continued to be dealt with as an adult, against (b) the risk of injustice to the local authority (including resource implications) if an interim order was made but the local authority was subsequently vindicated.

Abdullah v Aberdeenshire Council [2024] CSOH 8

An individual's petition for judicial review of a non-statutory age assessment was incompetent. An ordinary action for declarator was a competent means by which the court could determine age. It would be undesirable innovation for the Court of Session judicially to review decisions complained of on their merits because, in the case of age assessments for the purposes of the Children Act 1989 s.20 and corresponding s.25 of the 1995 Act, the power to decide a person's age in the event of dispute had clearly been committed to the court rather than to any other body.

JR147's Application to Apply for Judicial Review, Re | Westlaw UK [2023] NIKB 67

The court should be the primary decision-maker where a Convention right was in issue, but the court should be slow to exercise its jurisdiction when the matter could be dealt with by a specialist tribunal that was normally best placed to decide matters of factual dispute. In this case it was correct to intervene and declare the individual’s age as 17.

AU v Glasgow City Council (Opinion of Lord Woolman) [2017] CSOH 122

AU held that individuals seeking to challenge an age assessment in Scotland can do so by Declarator or Judicial Review in its fact-finding sense as set out in R(A) v London Borough of Croydon [2009] UKSC 8.

Held that Declarator is a competent remedy^[25] .

MC v Liverpool City Council [2010] EWHC 2211 (Admin)

When deciding a young person’s age, the court may reach its own conclusion as to the young person’s age, different to the age given by both the young person and the local authority.

R(A) v London Borough of Croydon; R(M) v Lambeth [2009] UKSC 8

The local authority may decide if a young person is taken to be a child for eligibility for support under Children Act 1989.

If the above is disputed, the question of whether someone is a child for the purposes of s.20(1) of the Children Act 1989 is a decision for the court as a matter of established fact

Issue: Approach to Age Assessments

R. (on the application of AM) v Sheffield City Council [2024] EWHC 2670 (Admin)

Again, complaints about the legibility of the form and the way it is filled in must be considered on a case-by-case basis. Here, the court found that the handwritten notes were legible, and did not undermine the fairness of the procedure.

The potential harm to the claimant, especially in terms of mental health and loss of support, outweighed any potential harm to the defendant.

Therefore, interim relief was granted, meaning the claimant should be treated as a child until the final decision on her age is made.

R. (on the application of SH) v Sheffield City Council [2024] EWHC 2669 (Admin)

It was not unfair for the notes on the age assessment to be handwritten – the notes were legible and did not affect the fairness of the procedure. Additionally, the court stressed that, the fairness of the process, not the detailed recording of every issue, is key.

There is no evidence that language or interpreter issues impacted the fairness of the assessment.

Separately, the court continued to emphasise the validity of relying on physical appearance and presentation in age assessments involving obvious cases, finding no irrationality in the approach used by the assessors.

R. (on the application of OAM) v Sheffield City Council [2024] EWHC 2671 (Admin)

It is not irrational for the Defendant to rely on physical appearance and presentation in age assessments, as established by case law.

The court acknowledges that in certain circumstances, physical appearance and presentation can be a valid basis for determining an individual's age.

R. (on the application of MB) v Liverpool City Council [2024] EWHC 3574 (Admin)

The court found no issue with the absence of an appropriate adult, as it did not affect the fairness of the process.

It was also not an irrational decision to fail to undertake a new assessment. Here, there was no independent or documentary evidence to challenge the original conclusions.

R. (on the application of MAA) v Hounslow LBC [2024] EWHC 1894 (Admin)

In cases where it is clear that the person is at one extreme of the age spectrum (either clearly a child or clearly not a child), there is no need for an exhaustive assessment process.

Furthermore, if it is obvious that the individual is significantly beyond the age of a child, a more extensive assessment is unnecessary. Separately, the absence of an appropriate adult does not automatically render the age assessment unfair, as long as it remains procedurally fair.

Here, because the claimant's age was clear and obvious, the absence of an appropriate adult did not affect the fairness of the process.

JR194's Application for Judicial Review, Re JR235's Application for Judicial Review. Re JR256's Application for Judicial Review [2024] NIKB 46

These cases emphasise the importance of collaboration between the parties involved in the age assessment process. In these cases, the Trust and the Respondents should have worked together in the age assessment process and that an adversarial approach should have been avoided. Rather, the parties should have focused on their common obligation of ensuring an accurate age assessment is made.

R. (on the application of SB) v Kensington and Chelsea RLBC | Westlaw UK [2023] EWCA Civ 924

There was no rule requiring a young person to have an appropriate adult in an age assessment interview. The judge significantly understated the force of the social workers' conclusion that S was not a child. In the light of their views, giving S an opportunity to comment on points on which they had formed a negative view of information he had provided was unnecessary. The judge had been wrong to quash the decision.

AB v Kent CC | Westlaw UK [2020] EWHC 109 (Admin)

It was not illegitimate for the Home Office to have a policy of initial assessment; an experienced social worker might be confident that an individual was either an adult or a child and it would therefore be pointless to continue an inquiry process merely to achieve full Merton compliance.

R. (on the application of K) v Milton Keynes Council | Westlaw UK [2019] 4 WLUK 180

As found in Merton, the law does not require a local authority to carry out a full assessment in clear and obvious cases.

AS v London Borough of Croydon [2011] EWHC 2091 (Admin)

Most appropriate age assessment approach is “to use a holistic evaluation, incorporating narrative accounts, physical assessment of puberty and growth, and cognitive and behavioural and emotional assessments” undertaken by social workers with relevant training.

R(FZ) v London Borough Council of Croydon [2011] EWCA Civ 59

Young person should be given a proper opportunity, as part of the interview process, to respond to any points which the interviewers considered adverse to the young person’s case prior to a decision being given.

A young person should have the opportunity to have a responsible adult present at the interview with them^[26].

R(B) v Merton London Borough Council [2003] 4AER 280

Except in clear cases, age should not be determined solely on the basis of physical appearance. Background of the young person should be sought, e.g. family history, education etc.

Local authority should not simply adopt decision of Home Office but may take information obtained by the Home Office into account.

Interpreter should be present at interviews. Detailed note of interviews should be kept. Young person should have inconsistencies or doubts put to her to allow her to respond. Local authority has obligation to give adequate reasons for its decision

Issue: Merton Compliance

R. (on the application of HAM) v Brent LBC | Westlaw UK [2022] EWHC 1924 (Admin)

Confirmed three crucial aspects of Merton compliant assessment:

(a) there was no burden of proof or assumption either way;

(b) the decision had to be based on reasonable enquiry; and

(c) if the local authority provisionally concluded that the asylum seeker was lying about their age, that had to be explained to them, and they had to be given an opportunity to respond.

There was no binding determination that an assessment undertaken by a single social worker could not, for that reason alone, meet the legal standard of fairness. (There is discussion at para.19 around the question of whether two social workers are required. Previous case law has suggested that it is, however, Merton states only that two would be “beneficial” only.)

R. (on the application of M) v Waltham Forest LBC | Westlaw UK [2021] EWHC 2241 (Admin)

An applicant should be given a fair and proper opportunity, at a stage when a possible adverse decision was no more than provisional, to deal with important points adverse to his age case which might weigh against him. This did not happen and so assessment was not Merton compliant.

ZS (Afghanistan) V Secretary of State for the Home Department [2015] EWCA Civ 1137

“Merton compliant” means compliant with the requirements set out by Merton and subsequent case law. However, the law at the time of the assessment applies.

Issue: Re-assessments

R. (on the application of F) v Manchester City Council | Westlaw UK [2019] EWHC 2998 (Admin)

The local authority had not acted irrationally in refusing to re-assess their age as there was uncertainty around the evidence and how it had been obtained.

Issue: Presumption of age

R(S) v London Borough of Croydon [2017] EWHC 265 (Admin)

A local authority is exercising its social services functions towards children not merely when actually providing support to children, but also when carrying out ancillary functions such as determining which individuals are and are not children.

It was arguable that the local authority should treat young people whose age had not yet been determined as children in order to comply with its duties under section 11 of the Children Act 2004 (c.f.s.17 Children (Scotland) Act 1995).

Adult hostel accommodation pending the outcome of the age assessment was unsuitable for the young person in the circumstances.

The local authority had acted unlawfully in refusing to support and accommodate the young person pending age assessment.

Issue: Benefit of the Doubt

R (AS, Francesco Jeff) v Kent County Council [2017] UKUT 00446 (IAC)

The proper application of the ‘benefit of the doubt’ in age assessment cases is that where, having considered the evidence, the decision maker concludes there is doubt as to whether an individual is over 18 or not, the decision-maker should conclude that the applicant is under 18.

When establishing a specific date of birth, the ‘benefit of the doubt’ requires a sympathetic assessment of the evidence.

A v London Borough of Croydon & SSHD; WK v Kent County Council & SSHD [2009] EWHC 939 (Admin)

A young person should receive benefit of the doubt if the LA has doubt about his/ her age.

Unless satisfied that the local authority’s assessment is flawed, the Secretary of State will rely on that assessment.

Local authorities cannot completely disregard medical reports from paediatricians, but they decide how much weight to attach to them and are entitled to prefer the view of the assessor.

Issue: Dental Assessments

R(ZM and SK) v London Borough Of Croydon [2016] UKUT 559 (IAC)

How, and to what extent, the stages of dental development are indicative of age (and the extent to which it can been assessed by a dental examination) is a matter of significant debate.

Dental assessment techniques – Mandibular Maturity Markers (MMMs) – Root Pulp Visibility (RPV) and Periodontal Ligament Visibility (PLV) are unreliable.

The Croydon v Y case should not be read as an absolute prohibition on a person from refusing to undergo a dental examination.

X-rays for the purpose of age assessments are deemed inaccurate and unethical by the British Dental Association, but that information from dental x-rays may provide some assistance in age assessments.

Judges should be prepared to question the basis of opinions in a report and should be wary of accepting age assessments that rely on the reputation of the author rather than the detail, consistency and currency of the data.

London Borough of Croydon v Y [2016] EWCA Civ 398

In order to continue his claim against the LA, claimant would have to agree to an age assessment by means of a dental X-ray.

Accepted that dental x-rays are controversial but it was not for the court to decide whether this was the case or not and this cannot be the reason for refusing an order.

See the following case regarding reliance on medical reports under the heading “Issue: Home Office Reliance:” A v London Borough of Croydon & SSHD; WK v Kent County Council & SSHD [2009] EWHC 939 (Admin)

Issue: Documentary Evidence

R(GB, Francesco Jeff) v Oxfordshire County Council [2015] UKUT 429 (IAC)

It is possible for age to be proved on the basis of documents alone which prima face confirm the individual’s stated age.

Such documents must be considered as evidence and weighed accordingly, even if the manner by which they were obtained seems implausible.

Issue: First-Tier Tribunal Assessments

R(PM) v Hertfordshire Council [2010] EWHC 2056 (Admin)

If the First-Tier Tribunal (Immigration & Asylum Chamber) assess a young person at a different age to the local authority, the local authority is not bound by this assessment.

It is instead for the local authority to conduct a reassessment taking into account the Tribunal’s findings and evidence before it.

Issue: Home Office Reliance (and detention)

Home office v VS [2015] EWCA Civ 1142

Where there is a dispute over the child’s date of birth and there is a local authority age assessment, the Home Office is required to make reasonable inquiries in order to arrive at an informed decision on the issue of the child’s age.

The Home Office is required to obtain the reasons on which the conclusion (of age) was based.

The Home Office unlawfully detained the child and ought not to have relied on a mere superficial explanation of the local authority’s age assessment.

A v London Borough of Croydon & SSHD; WK v Kent County Council & SSHD [2009] EWHC 939 (Admin)

A young person should receive benefit of the doubt if the LA has doubt about his/ her age.

Unless satisfied that the local authority’s assessment is flawed, the Secretary of State will rely on that assessment.

Local authorities cannot completely disregard medical reports from paediatricians, but they decide how much weight to attach to them and are entitled to prefer the view of the assessor.