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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> D, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 958 (Admin) (27 February 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/958.html Cite as: [2006] EWHC 958 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		27th February 2006

1. MR JUSTICE FORBES: In these two applications for judicial review there appear to be two common central issues: (1) the legality of treating a short cursory assessment of physical appearance and/or demeanour made at an initial brief interview by an immigration officer or social worker as conclusively determinative of the age of an asylum applicant for asylum purposes, until the contrary is proved by other evidence and (2) the legality of treating that kind of assessment of age as determinative of whether a claim for asylum can be subject to the fast-track process and detention at an open reception centre or elsewhere.
2. The two cases with which I am concerned are known by initials only, namely D and Z.
3. I turn, first, to the case of D. Circumstances have arisen in this case that have had a significant effect on its further progress and on the further progress of the claim relating to Z. Turning, first, to the outline facts relating to D, they are as follows. D entered the United Kingdom on 1 November 2004. On 8 November 2004 she was interviewed by a screening officer. He concluded that she was 18 plus, on the basis of her physical appearance, demeanour and response to questions. However, D claimed that she was 14 years old and that her date of birth was 5 August 1990. On 9 November 2004 D was detained and transferred to Oakington so that her claim for asylum could be considered within the fast-track procedure. On 17 November 2004 her asylum claim was refused and certified under Section 94 (2) of the Nationality Immigration and Asylum Act 2002.
4. However on 1 December 2004 an age assessment of D was undertaken by Cambridgeshire Social Services. The outcome of that assessment was expressed to be inconclusive. On 10 December 2004 D was granted temporary admission and released from detention. Subsequently, in February 2005, D obtained a report from Dr Michie who concluded that her age was 15 plus or minus two years. On 16 February 2005, Cambridgeshire Social Services concluded that D was probably 16 years old. On 3 March 2005 the Secretary of State wrote to D's legal representatives, explaining that the Secretary of State had decided to treat D as a minor, that a decision had therefore been made to grant D discretionary leave to remain and that certification of her claim under Section 94 (2) of the Nationality Immigration and Asylum Act would be withdrawn. Subsequently, the Secretary of State confirmed that D's asylum claim would be reconsidered by the relevant unit within the Home Office responsible for determining asylum applications for minors. The Secretary of State also confirmed, as requested by D, that material and/or information that had been obtained in her asylum interview would not be considered as part of that process.
5. The Secretary of State has also accepted in open correspondence that the original decision to treat D as an adult had been flawed, because of a failure to take proper account of the documentation that D had produced. D had a copy birth certificate, certified by the Sri Lankan authorities, and a photocopy of half her mother's passport. Had this documentation been properly considered, it is probable that D would have been treated as a minor from the outset. The Secretary of State has indicated his willingness to consent to a declaration to that effect and to a declaration that D's detention was unlawful. The Secretary of State has also made it clear that he is willing to compensate D for that detention. Offers of compensation have been made and a counter offer is being currently considered. In the event that the amount of damages cannot be agreed between the parties, the Secretary of State has proposed that the claim be transferred to the Queen's Bench Division for an assessment of damages, as is the normal practice in such cases. I am satisfied that this would enable directions to be given for the service of any further evidence relevant to the assessment of damages. It would also give an opportunity for any appropriate amendment to be made to the proceedings and it would provide an appropriate forum for the resolution of any factual issues as to the nature and effect of the detention on D.
6. Thus, the position with regard to D's claim is, and has been for some time, as follows: (1) the Secretary of State accepts that she is a minor; (2) the Secretary of State has indicated that he has decided to grant D discretionary leave to remain, although a formal grant has not yet been issued; (3) D's asylum claim has been taken out of the fast-track process; (4) the decision to certify her claim under the 2002 Act has been withdrawn; (5) the rejection of her asylum claim has been withdrawn; (6) her asylum claim will be considered afresh on the basis that she is a minor by the unit charged with determining the asylum claims of minors; (7) any material or information obtained in relation to the asylum claim during the period in which D was being treated as an adult will be disregarded for this purpose; (8) the Secretary of State accepts that the decision to treat D as an adult was unlawful; (9) the Secretary of State accepts that D's detention was unlawful and (10) the Secretary of State is willing to compensate D in respect of her unlawful detention.
7. It is therefore clear that the relief sought in D's amended judicial review claim form has either been offered by the Secretary of State or is no longer required. Thus D had sought a quashing order in respect of various decisions, but those decisions have now been withdrawn. D sought a declaration that her asylum claim be reconsidered in accordance with the relevant rules and/or policy relating to unaccompanied minors and the Secretary of State has now confirmed that this will be done. D sought a declaration that her detention was unlawful and the Secretary of State has now accepted that this is the case. D sought damages and the Secretary of State has confirmed a willingness to pay damages and has proposed a transfer of proceedings to the Queen's Bench Division, in the absence of agreement on the quantum of compensation, for the determination of the appropriate quantum.
8. It is to be noted that there is no pleaded claim in D's case for exemplary damages. In my view this is an important omission for the purposes of the decision that I have to make today. For convenience, I refer to paragraphs 27 to 67 of Clerk and Lindsell which deals briefly with the circumstances relating to exemplary damages:

"It was formerly supposed that exemplary damages could be awarded in almost any case in court if the defendant's conduct had been particularly outrageous. In 1964, however, the House of Lords through the speech of Lord Devlin in Rooks v Barnard laid down that exemplary damages as distinct from aggravated damages should only be awarded in two specific categories of case unless of course they were expressly authorised by statute. These categories comprise first cases of 'oppressive arbitrary or unconstitutional action by the servants of the government' and, secondly, 'cases in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.' In cases falling within one or other of these categories Lord Devlin considered that exemplary damages were justified by authority and that they served a useful purpose in vindicating the strength of the law. In general however his Lordship declared that exemplary damages were anomalous for they confused the civil and criminal functions of the law and laid the defendant open to the possibility of punishment without the safeguard which the criminal law gives to an offender."

It is to be noted that the only applicable category of exemplary damages which could possibly, or arguably, arise in D's case is the first of the categories identified by Lord Devlin, namely that there has been "oppressive, arbitrary or unconstitutional action by the servants of the government". There is nothing in any part of the pleading put forward in D's case which specifies or identifies what is said to be the oppressive, arbitrary or unconstitutional action by the servants of the government. Although the general facts and matters of D's case are plainly pleaded, there is no plea claiming exemplary damages by reference to any particularised oppressive, arbitrary or unconstitutional actions by the servants of the government.

9. In those circumstances it would be difficult during the course of this hearing for there to be any consideration of a claim for exemplary damages without there being an application to amend the pleadings to put the claim in proper form, and in a form in which such a serious allegation can properly be considered and evidence prepared by the Secretary of State, against whose various servants and agents no doubt the allegation would be made if it were to be made at all. In those circumstances, therefore, Miss Harrison's submission that the case of D still retains an element of public interest which justifies the matter being litigated, despite its almost wholly academic nature lacked persuasive force. As Miss Richards pointed out on behalf of the Secretary of State, it is a well established principle that judicial review is concerned with live issues and will not generally lie where the claim is or has become academic (see R (Okturu) v Secretary of State for the Home Department [2001] EWCA Civ 126).
10. On behalf of D, Miss Harrison submitted that there was sufficient public interest in an examination of the claim for the purposes of assessing an entitlement to exemplary damages. In support of that submission she referred to R v Secretary of State for the Home Department ex p Salim [1999] 2 WLR 483. For the purpose of this judgment, it suffices to refer to the headnote of that case which summarises their Lordships' speeches and opinions as follows:

"Held, dismissing the appeal that on an appeal on an issue of public law involving a public authority the House of Lords had a discretion to hear the appeal even if by the time it was due to begin there was no longer a lease to be determined directly affecting the parties' rights and obligations inter se but that the discretion was to exercised with caution and academic appeals should not be heard unless there was a good reason in the public interest for so doing."

In that particular case their Lordships held that there was no such good reason and, accordingly, declined to hear the matter. I have come to a like conclusion in this particular case.

11. Attractive though Miss Harrison's submissions were, they boil down to this: that a claim for exemplary damages existed in D's case and that was sufficient reason in the public interest to pursue what had otherwise become an academic claim. I do not agree. As I have already pointed out, a claim for exemplary damages has not been pleaded by D. Even if it had been pleaded, I consider that it would be insufficient to justify hearing what is now a wholly academic claim. All issues relating to any entitlement to exemplary damages can be fairly and properly dealt with on an assessment of damages and appropriate directions can be given for that purpose if, after reflection, the claimant still considers that it is a claim worth pursuing. As to that, I have carefully avoided giving any indication as to my own views of the merits of such a claim.
12. Accordingly, for those reasons, I have come to the conclusion that the course suggested by Miss Richards should be taken in D's case, namely that the claim for judicial review should be disposed of by an appropriate declaration by consent and that that declaration should embrace the proposition that the decision to treat her as an adult was unlawful and that her detention was unlawful. There should then be a transfer of the proceedings to the Queen's Bench Division for an assessment of her claim for damages with appropriate directions with regard to applications for leave to amend and the filing of any further evidence if appropriate.
13. I turn to the case of Z. The factual situation in relation to Z is somewhat more complicated and there remain some live issues between the parties. The main problem that I have to face today is whether I should accede to Miss Harrison's suggestion that the trial should be split into two stages, dealing today with that part which is capable of being tried and adjourning that part in respect of which further evidence may still be required. The circumstances giving rise to that suggestion will become clearer when I summarise the factual circumstances of this case. However, it is appropriate that I should make clear, at this stage, that I do not accede to Miss Harrison's suggestion; rather I agree with Miss Richards that this is not a case where it is appropriate to split the trial. The issues should all be tried together.
14. I turn to consider the facts relating to Z. Z arrived in the United Kingdom at Heathrow Airport on 23 March 2005, and claimed asylum. At a screening interview he said that he was 15 years old and that his date of birth was 1 May 1989. He also claimed to have no passport or other documentation. His case was referred to a CIO who did not consider that Z was 15, although the CIO did consider that Z might be under the age of 18. Hillingdon Social Services were contacted and a social worker attended. An interview was held with the assistance of an interpreter. The social worker "had no doubt that he was older than 18 years of age" and thought that "his appearance and demeanour suggest that he is a young adult". This view was, as it happens, shared by the immigration officer and the CIO to whom the matter was then referred. A disputed age contention form was completed, and Z was issued with a form IS97N informing him that the Secretary of State did not accept that he was a minor and that he would be treated as an adult. The decision was taken to detain Z so that his claim could be decided quickly using the fast-track procedure. There was also a concern that Z might abscond if granted temporary admission.
15. On 24 March 2005 Z was transferred to Oakington. There he was interviewed for the purpose of his asylum claim on 26 March 2005. On 4 April 2005 Cambridgeshire Social Services conducted a full age assessment of Z. Their conclusion was that his appearance and behaviour strongly suggested that he was older than the 15 years he claimed to be but that he was under 18 years. In the light of the Cambridgeshire assessment, the Secretary of State decided that Z's claim should be taken out of the fast-track procedure. Z was not immediately released from Oakington as alternative arrangements had to be made for his care. Hillingdon Social Services agreed to accept responsibility for him. Arrangements were made for Z to be transferred to Hillingdon's care on 6 April 2005.
16. On 6 April 2005 a copy of the passport on which Z had travelled to the United Kingdom was obtained. It will be noted that, as I indicated earlier, on entry he had claimed that he had no such documentation. The passport did show Z's photograph but it gave a different name and date of birth. The date of birth given resulted in the holder of the passport having an apparent age of 34 years. This was drawn to the attention of Cambridgeshire Social Services who stated that the Secretary of State should liaise with Hillingdon.
17. Hillingdon decided to undertake a further full age assessment of Z on 6 April. Hillingdon's conclusion, following that assessment, was that Z was over the age of 18. The core reasons for this conclusion were that -

"Your level of social interaction indicates that you are older than the age you claim to be. This was observed in various settings. Your responses were cautious, considered and carefully thought out. There was no spontaneity or genuine emotion displayed. You indicated a much higher level of independence than normally would be expected from a 15-year old child. Your social life experiences suggest that you are a young adult, aged over 18 rather than a child aged 15. Your physical appearance very strongly suggests that you are over 18 years of age."

18. In the light of Hillingdon's firm conclusions, the Secretary of State decided that Z would be treated as an adult. He was re-detained and transferred back to Oakington for the decision on his asylum application to be served and for arrangements to be made for the provision of NASS accommodation when released.
19. On 7 April 2005, the Secretary of State contacted Cambridgeshire Social Services to inform them of the position relating to Z. Initially, Cambridgeshire indicated that they would not be challenging Hillingdon's assessment. However subsequently, on 7 April 2005, Cambridgeshire contacted the Secretary of State to explain that they wished to reassess Z and would take Z into their care pending that reassessment which could not be arranged immediately. It was decided therefore to release Z into Cambridge's care. He was released from detention on 7 April 2005. So it was that Cambridgeshire carried out a further full age assessment of Z on 26 April 2005. The conclusion reached by Cambridgeshire was that Z was over 18 years old. As a result, Cambridgeshire no longer considered Z suitable for the minor's accommodation which had been provided for him.
20. On 10 May 2005 these judicial review proceedings were issued. On 31 May 2005 Z's solicitors forwarded to the Secretary of State an age assessment by Dr Colin Michie. Dr Michie estimated Z's age as 16. At the same time Z's solicitors wrote to Cambridgeshire and Hillingdon explaining that consideration was being given to joining them as defendants. On receipt of Dr Michie's report, the Secretary of State decided to ascertain whether social services maintained, in the light of the report, the existing position that Z was an adult. Initially, contact was made with Hampshire Social Services, since Z was at that time living in Aldershot. However Hampshire was not experienced in conducting age assessments and considered that the responsibility for any services for Z would fall to Hillingdon and/or Cambridgeshire. Accordingly, the Secretary of State sought the views of Hillingdon and Cambridgeshire, both of whom confirmed on, respectively, 9 October 2005 and 17 October 2005 that it remained their view that Z is an adult. The Secretary of State then sought further information about Dr Michie's assessment, including copies of his notes taken during his examination of Z.
21. On 25 November 2005, the Secretary of State decided that Z was, and would be treated as, an adult. In reaching that decision, the Secretary of State had regard, inter alia, to the Cambridgeshire and Hillingdon assessments, to the report of Dr Michie and to recently served witness statements from Dr Michie and Kurshi Ming, a social worker/lecturer, which had been served on behalf of Z.
22. On 17 January 2006 Z's legal advisers provided to the Secretary of State a further report from Dr Michie in which he noted an increase in Z's height. The covering letter from Z's solicitors stated that -

"In view of the contents of your client's letter of 25 November 2005, we are considering the service of a further statement from Dr Michie in order to deal with the various issues involved."

A second witness statement from Dr Michie dated 3 February 2006 was then served in early February. On 15 February 2006 Cambridgeshire Social Services filed two separate witness statements from James Grant and Alicia Barton. Subsequently the Secretary of State filed a report from Dr David Vickers, a paediatrician, and a report from Mr John Richie, a forensic dental surgeon. On 22 February 2006 the Secretary of State reaffirmed his decision of 25 November 2005 to treat Z as an adult.

23. On behalf of Z, Miss Harrison understandably felt unable to deal with this most recent body of expert evidence served on behalf of the Secretary of State. She suggested that rather than the hearing being adjourned altogether, the trial should be split and today's hearing should be confined to the circumstances of the case relating to Z's initial assessment. However I take the view that such an approach would be unsatisfactory.
24. As Miss Richards submitted, it is unrealistic to divide the case in this fashion and to treat all the issues as, in some way, separate and unrelated. If the trial were to be split, there would inevitably be considerable duplication and an increase in costs in having to hear it in two stages. It is by no means guaranteed that the same judge would hear both stages. There would also therefore be a risk of - or at least a potential for - some inconsistency in judicial findings. I accept the submission made by Miss Richards, on behalf of the Secretary of State, that this is a case where either the hearing proceeds today, entirely on the basis of the evidence that is currently filed with all issues being considered, or the whole of Z's case should be adjourned to enable his advisers to consider fully and prepare and serve, if so advised, appropriate evidence dealing with this case and in the light of the most recent evidence filed by the Secretary of State. I rather gather from the way that matter has proceeded this morning that if she cannot have a split trial, Miss Harrison's preference would be for the case to be adjourned with appropriate directions with regard to further evidence. I await to hear confirmation that that is so.
25. MISS HARRISON: Certainly it is our position that if we indicate that we do not want the case to go ahead on the basis of the evidence we would have to ask for it to be adjourned, the whole thing to be adjourned.
26. MR JUSTICE FORBES: I rather thought that. When preparing this judgment over the period since then it did occur to me that you might want to have an opportunity to reflect on that, and the opportunity is there. But, equally, if you wish to have the matter adjourned with directions for further evidence, then that is what will happen.
27. MISS HARRISON: Yes, that is what we would hope. I raise a couple of factual matters: one is in respect of D that I should have corrected in my friend's submissions, and it has crept into your Lordship's judgment. It is in terms of the discretionary leave. D has not actually been granted discretionary leave.
28. MR JUSTICE FORBES: Z has not or - - - - - ?
29. MISS HARRISON: D.
30. MR JUSTICE FORBES: D. You are quite right. I relied very heavily on Miss Richards' helpful skeleton argument for the facts.
31. MISS HARRISON: It has been offered. It was said at an earlier stage that she would be granted discretionary leave, but, as a matter of fact, she has not yet been. I apologise for not having corrected that. There was confusion - - - - -
32. MR JUSTICE FORBES: What is the position? It has been offered but not formally accepted?
33. MISS HARRISON: No. It just has not been granted. She is pursuing her asylum claim in any event, but as a matter of fact she has not been granted any leave to remain. She is still - - - - -
34. MR JUSTICE FORBES: That is paragraph 11 (2).
35. MISS HARRISON: Yes.
36. MR JUSTICE FORBES: That is why.
37. MISS RICHARDS: I was not aware that that was the case. I had seen a letter some time ago offering discretionary leave. If it appears that the follow-up process of some formal grant letter has not taken place, I take note of that. I will ask my instructing solicitor to ensure that that is followed up.
38. MR JUSTICE FORBES: Are you content that I should amend the judgment to say that she has been offered?
39. MISS HARRISON: Yes. As a matter of form, what will happen is that if she is refused asylum then I think at that point she will be granted discretionary leave, but as of now she does not have any leave at all. She is an asylum seeker.
40. MR JUSTICE FORBES: Has she been formally granted it? Let me read this. (Pause) Paragraph 7, the Secretary of State wrote to D's representatives. Is that correct, that a decision had been made to grant discretionary leave to remain? Did the letter say that?
41. MISS RICHARDS: I believe so. Certainly there was reference to discretionary leave.
42. MISS HARRISON: I think it is right that it was never actually granted.
43. MR JUSTICE FORBES: I take the point. I just want to make sure.
44. MISS RICHARDS: Yes. The letter says - - - - -
45. MR JUSTICE FORBES: Page?
46. MISS RICHARDS: Page 236 of Vol 1A. It says:

"It has been accepted that your client is a minor and therefore in accordance with published asylum policy in relation to unaccompanied minor asylum seekers a decision has been made to grant discretionary leave to your client."

47. MR JUSTICE FORBES: Yes, the final paragraph, is it not?
48. MISS RICHARDS: Yes.
49. MR JUSTICE FORBES: The actual decision has not - - - - -
50. MISS HARRISON: It has not been - - - - -
51. MR JUSTICE FORBES: - - - - - formal - - - - -
52. MISS HARRISON: There is no formal ground of discretionary - - - - -
53. MR JUSTICE FORBES: No, no formal ground.
54. MISS HARRISON: I do not think - - nothing - - - - -
55. MR JUSTICE FORBES: If I alter the slightly later part of the judgment when I summarise the position in relation to D it would be: the Secretary of State has indicated that he has decided to grant discretionary leave to remain. I could also add: although formal grant has not yet been made.
56. MISS HARRISON: That is right.
57. MR JUSTICE FORBES: Are you content with that? Was there something else?
58. MISS HARRISON: There is nothing in terms of your Lordship's judgment on the facts.
59. MR JUSTICE FORBES: If I ask the shorthand writer - when you get to that part of my judgment in which I say: "Thus the position in relation to D is and has been for some time as follows: (1)" as it was, and (2) should read "the Secretary of State has indicated that he has decided to grant discretionary leave to remain although formal grant has not yet been issued." What was the next matter?
60. MISS HARRISON: There was a draft consent order which, had it been agreed between the parties - - but the reasons were the issues that were in dispute; that is at 454. It is a draft consent order proposed by the Secretary of State.
61. MR JUSTICE FORBES: Is it the consent order in D's case?
62. MISS HARRISON: In D's. It would have the effect that your Lordship indicated in the matters that need to be resolved. I can hand that up to the associate to assist with the drafting of the order.
63. MR JUSTICE FORBES: May I have a look at it?
64. MISS HARRISON: Yes. It does not obviously have anything to do with the amendments to the claim relating to exemplary damages before that issue was raised but it deals with the other matters. (Handed)
65. MR JUSTICE FORBES: As it seems to me, everything there seems satisfactory apart from the need to add in something to cover what I said about directions at the assessment, amendment and so forth. Do you agree, Miss Richards?
66. MISS RICHARDS: There is only one respect in which I do not agree. That is at the end of paragraph 7.
67. MR JUSTICE FORBES: This was only ever a draft, was it?
68. MISS RICHARDS: This was a draft consent order which was never accepted because the defendant plainly wanted to proceed with the challenge. What the Secretary of State is willing to agree to is that the defendant pay the claimant's costs of proceedings up until the middle of December because by that time this order had been sent and the defendant's detailed grounds had been lodged which made all the points that I have made again today, that the claim was academic. But because that was not accepted we have had to incur costs subsequently which we say - - we can deal with that at a later stage.
69. MR JUSTICE FORBES: I had misunderstood this document. I thought this was a draft order which, in principle, had been agreed.
70. MISS HARRISON: It had.
71. MR JUSTICE FORBES: Let us take it in stages. So far as the order itself is concerned, before we get on to costs, in the case of D do you both agree that the claimant's judicial review claim should be allowed?
72. MISS RICHARDS: I am happy with that.
73. MR JUSTICE FORBES: The first part of the order - the claimant's claim for judicial review is allowed. It is declared that the claimant is a minor, born on 5 August 1990. (2) The defendant's decision to treat the claimant as adult was unlawful. (3) In consequence of the above, the defendant's decision to fast-track her asylum claim was unlawful. (4) The claimant's detention at Oakington between 9 November 2004 and 10 December 2004 was unlawful. Then, it is further ordered that the claimant's claim for damages shall be transferred to the Queen's Bench Division for an assessment of damages, if damages are not agreed between the parties, and for all such amendments and further evidence as may be required for the purposes of that assessment.
74. MISS RICHARDS: I did not quite catch what your Lordship said. It is transferred for directions.
75. MR JUSTICE FORBES: Yes. It is using the wording in the draft order and continuing: if damages are not agreed between the parties and for all such amendments and directions for further evidence as may be required for the purposes of this assessment. Then that is - - that just leaves in the case of - - I will come to costs in a moment. In the case of D - - sorry, Z, that is adjourned to a date to be fixed. Have you got a date fixed?
76. MISS HARRISON: The only date that we were given by the associate was 13 and 14 March, which was obviously too soon. We really could not be in a position to deal with that before that. Before we get to the date, can I make one observation about the facts. It is to indicate that, as you said, your recital of the facts comes from my learned friend's skeleton argument. There are a number of factual issues in that chronology that we do not agree with. It is only to make that clear that if any judge looks at that, that is not any findings. It is to make it clear that that is my friend's description of the facts rather than what the facts may turn out to be.
77. MR JUSTICE FORBES: Any in particular?
78. MISS HARRISON: We do say that certainly with regard to the assertion that the CIO and the immigration officer made an assessment after Hillingdon - - in which Hillingdon Social Services attended, that, we have the case note here (the contemporaneous records) and they do not support the fact that there was some independent assessment by a further CIO. That will be a matter that the court will have to make some findings about. But at this stage we do not accept that there was a further assessment, as it were, by an immigration officer of the CIO. If it amounts to rubber-stamping what Hillingdon said, that might be the case, but we do not accept that they themselves carried out any second and further assessment different to the one that the CIO carried out. There is no contemporaneous evidence to show that that did happen. We are concerned, and we do raise questions about whether or not abscond risk was a factor to be taken into account in respect of the detention of Z because - - - - -
79. MR JUSTICE FORBES: Or whether that was even thought of, you mean.
80. MISS HARRISON: - - - - - and not least because it is accepted, and was accepted before the House of Lords in Zardi (?), that cases dealt with at Oakington are precisely those people who do not present an abscond risk. That is why they are fast-tracked. So they may not be the most decisive issues. I only wanted to make it clear to your Lordship.
81. MR JUSTICE FORBES: What I can say if it helps is that in order to set out the general factual circumstances of both cases in the judgment so that the general factual background for the decisions I have made are properly understood, as a matter of convenience, I used the factual material as set out in Miss Richards' skeleton argument where I had it in a very condensed form.
82. MISS HARRISON: I think I appreciate why your Lordship did that.
83. MR JUSTICE FORBES: I am prepared to go on and say that it should not be assumed from that that I have made specific findings of fact that each and every one of those facts is accurate. It was not set out for that reason. I was not making findings of facts; I was giving a factual account. If it helps to have on the transcript me making it clear so that the extent you wish to argue about the factual material at the hearing in relation to Z, then of course you are entirely free to do so.
84. MISS HARRISON: I am grateful.
85. MR JUSTICE FORBES: My recital of the general factual material is not intended to be reasoned findings of fact on my reading of all the evidence.
86. MISS HARRISON: I am grateful.
87. MR JUSTICE FORBES: That, I think, should suffice for your purposes.
88. MISS HARRISON: In terms of a date, I have had an opportunity to discuss with my solicitor how long we need. Given that we are dependent on going back to Dr Michie in the first place, and also considering the possibility of her alternative expert evidence in response to the evidence the Secretary of State put in, we cannot see that we would be in a position to put material before the court within - - well, we think we need six weeks. It may be that we can do it before then. But we would not want to commit ourselves to anything shorter than that because we do not have the same - - - - -
89. MR JUSTICE FORBES: That is probably going to that; it is unlikely it is going to get on this term.
90. MISS HARRISON: Yes. I think that is unlikely. Even if we were to say four weeks, which would be tight, there still needs to be the opportunity for the Secretary of State to come back with a response. He has not shown, in any way shape or form, in this case that he can do it diligently. We may be looking at another situation - - - - -
91. MR JUSTICE FORBES: You would like six weeks for further evidence. Is that right?
92. MISS HARRISON: Yes.
93. MR JUSTICE FORBES: What do you say about that, Miss Richards?
94. MISS RICHARDS: I would have thought it possible to go to Dr Michie rather quicker than that. I understand, of course, that if Miss Harrison wants to go to someone other than Dr Michie, then that might take longer. So I am not sure that I can really oppose it if that is how long she wants. What I would ask is two-fold: the first is that if the claimant decides it is going to proceed with the challenge to the Secretary of State's maintenance of the decision that says he is an adult, we would ask that the judicial review grounds are amended to set out the basis of challenge because they never have been. There was never an amendment to challenge the decision of 25 November. So we would like to know precisely the case we are meeting in that respect. We would ask therefore that is done at the same time as the service of any evidence. Secondly, we would need to consider that evidence because the Secretary of State has an obligation to consider what material is put forward and to review his decision accordingly.
95. MR JUSTICE FORBES: How long would you require?
96. MISS RICHARDS: The difficulty is that I have no idea what Miss Harrison is going to come up with. If she comes up with a further witness statement from Dr Michie it should not take very long at all. But if she comes up with a report from a forensic dental surgeon we might want to go back to Dr Richie, so I am going to suggest four weeks.
97. MR JUSTICE FORBES: Mr Sharland, does any of this concern you?
98. MR SHARLAND: No.
99. MR JUSTICE FORBES: In that case, I think all I can do at this stage is to adjourn the case of Z to a date to be fixed. The claimants are to serve any proposed amendments and any further evidence within six weeks of today. The defendants to serve any evidence in response within four weeks thereafter.
100. MISS HARRISON: What would be helpful in the light of past experience is that if the directions include a date for the Secretary of State, if he is going to make a new decision, to make it because that has caused prolonged delays in the case, from May to November, and then, after further evidence, until 22 February. So if the direction includes a direction for the Secretary of State to make a decision, if he chooses to, a fresh decision, within four weeks as well then that will leave us in a position to be able to amend the pleadings which of course, I accept, need to be amended without running into the problems we have had up against the hearing. So if the direction says "to serve evidence and any further decision letter within four weeks" that would assist.
101. MISS RICHARDS: I am content with that. The amendments to the claim are going to be made before that. That is what I ask.
102. MISS HARRISON: We have a decision dated February 22. We can amend the pleadings to deal with that. It will be in the absence of recourse to experts. It is pointless to amend the pleadings if we are going to end up with a new decision.
103. MR JUSTICE FORBES: You have not amended to specify your basis of challenge to the current state of affairs.
104. MISS HARRISON: We have not done that since 22 February.
105. MISS RICHARDS: Or 25 November.
106. MR JUSTICE FORBES: The directions I gave mean you must make those amendments which are required at the present time within six weeks of today and serve your evidence six weeks from today. You have requested - and I understand Miss Richards to be agreeable to - any further decision letter by the Secretary of State together with any further evidence relied on in response to be served within four weeks thereafter. Is that right?
107. MISS HARRISON: Yes.
108. MR JUSTICE FORBES: I think that covers all the directions in both cases. It leaves only the question of costs. I am not sure if costs are ones that are separate to each or global. Who wants to go first?
109. MISS HARRISON: Obviously there is a substantial degree of overlap in terms of costs. If I can deal with the position in D and explain to your Lordship the chronology with regard to the matters that resulted in the consent order you proposed and that you have seen, it is not right, as my learned friend suggested, that that was the consent order proposed in November. What happened was that there was an earlier letter; you will see a letter. The first proposal to settle the case in respect of the detention was a date of 29 November 2005, in respect of which we responded on 22 December 2005 in a letter in Vol 2, page 444. That was a letter dated 22 November in response to the draft consent order of 29 November. It raised a number of issues and proposed an alternative order which is at 446, which I think became the draft order you have there. The important difference was that up until - - the Secretary of State was not accepting that the claimant's date of birth was as claimed although it was accepted that she was a minor. We did not have a response to that. You will see a follow-up letter of 13 January at 449. And again at 450, on 8 February 2006, there is a further letter referring back to 22 December 2005. We have had no response to that. I do not think - - your Lordship does not have the final letter that the Secretary of State wrote because it is a "without prejudice" letter. I think, from recollection, it was something like 14 February; it was something like that. So it was at that point that there was agreement or potential agreement about the form of the order.
110. The dispute continued to be about the statement of reasons. But the critical thing was that the Secretary of State then confirmed that he was prepared to agree to a consent order that said that D's date of birth was as she said, the 5 August 1990, making her 14. The significance of her age is obviously that that has ramifications as to how she is dealt with in terms of what leave she gets, when she would become entitled to indefinite leave to remain, etc, etc, because they are given a relatively discretionary leave to remain and if you have had four (?) years' leave to remain. In fact, (3) is that you are entitled to apply for damages. It has to be some kind of indications for her status as well as - - you will see that the social services thought she was 16. Her documents give the date of birth as 14. It was of some consequence.
111. So it is not that there has been on the table a consent order since November. Actually it is only very recently, and in the last couple of weeks that that has been agreed. We were prepared to agree the terms of the consent order, as I indicated to your Lordship, on the basis that our fall back position was D should be adjourned in terms of assessment of damages to decide whether or not the policy was unlawful because, as your Lordship is aware, the submissions that were made had relevance to the nature of damages that she should get. That is why I said to your Lordship it was agreed.
112. Also we say that in light of that situation and in light of the fact that we were asking for the Secretary of State in those letters to confirm what he intended to do, but meanwhile having to prepare this case, including the skeleton argument and the documents, that it was really too close up to the date of the hearing to be able to do anything other than fully prepare this case. That is how we came to be arguing before you that the matter should properly be before you and to be fully decided. That is the issue with the situation in D.
113. With regard to Z, we say that it is clear that the crucial material that has been served by the Secretary of State, which is the evidence of Dr Richie which says essentially the dental assessments carried out by Dr Michie are not reliable, that relates to his first report which was as long ago as May 2005. In correspondence the Secretary of State is trying to suggest that that report is in response to the most recent Michie report, which is ludicrous. The most recent report in December was simply - - all that it did was to confirm what had earlier been decided but add the fact that he had grown. We accept that the report from Dr Vickers deals with that matter. But it is quite evident that the wholesale attack on the reliability of Dr Michie's evidence is something that was open to the Secretary of State to do since May 2005, and there is simply no adequate explanation as to why that material should not have been put in a very substantially longer period ago. Unless orders were made in the case in November and the Secretary of State did not choose to put in any material then to challenge Dr Michie's reliability. And on the state of the authorities, in particular a case called Iano (?) where this court decided it was not lawful or rational for the Secretary of State to prefer social services' reports over that of Dr Michie, we were fully entitled to proceed on the basis that unless there was some real substantial basis for doubting his reliability, then we had a strong case. It is only the service of Dr Richie's evidence on 22 February that that is now put in doubt.
114. So we say that the fact that this case has had to be adjourned falls at the responsibility of the Secretary of State. For those reasons he should pay the costs of today and preparation for the hearing today. We say that that should apply in D's case as well. But if your Lordship does not go that far, then it can only go to the date on which the consent order was - - when there was a response to our suggestions which was, I think, on 14 February. It is not a document before your Lordship.
115. MISS RICHARDS: In relation to D, the Secretary of State of course accepts that D should have the costs of the bulk of the proceedings because it has been accepted that the detention was unlawful, that various decisions were unlawful and so on, so this is not a dispute about the whole cost of the proceedings when instructed and information (?). Since November the Secretary of State has made it clear in correspondence that all the decisions under challenge have been withdrawn, that the assurances that were sought in terms of not using material that was obtained whilst he was detained were given, that the detention was accepted to be unlawful and that damages would be paid. In the Secretary of State's detailed grounds served in early December 2005 all the points made in my skeleton argument were made and it was pointed out that the claim was academic. Draft consent orders were proposed. It is the claimant who has persisted with the challenge in D on the basis on which Miss Harrison failed this morning, persisted in because it was said that D was not academic and it should not have been transferred at this stage to the Queen's Bench Division and that the policy issues in D should be ventilated, in part to afford a basis for the claim for exemplary damages. That is the basis on which Miss Harrison failed this morning.
116. Given that the Secretary of State's position is clear as from early December, and ought reasonably to have been accepted at that stage, the costs since then should not fall on the Secretary of State in our submission. Certainly the costs of preparing for this hearing in relation to D should not fall on the Secretary of State because the court has accepted the Secretary of State's argument that the case is academic, and it became academic several months ago.
117. In my submission, trying to do it on a rough and ready basis, an appropriate order would be for the defendant to pay the claimant's costs of the proceedings, say, until middle or late December and there be no order as to costs thereafter. Alternatively there should be a set-off in relation to the Secretary of State's costs of the proceedings which he should have from the claimant. That is the position in relation to D.
118. So far as Z is concerned, the claimant has not acknowledged in the submissions advanced by Miss Harrison the fact that a significant amount of evidence has been served by the claimant relatively recently. So Dr Michie's second report on Z, although dated 20 December, was not served on the Secretary of State until 17 January. A second witness statement from Dr Michie, which essentially for the first time put in issue a number of the points made by the Secretary of State in his decision letter of 25 November, was only served either at the very end of January or beginning of February. The signed version was served 3 February. I think an unsigned version was served a couple of days before then. Until that was served, although in correspondence the claimant's representatives seem to be disputing the Secretary of State's continuing decision, there had been no formal amendment to challenge that decision and there had been no evidence put in by the claimant putting that decision, as it were, in issue. That was done by the claimant at the end of January/beginning February.
119. In those circumstances the claimant should not be criticising the Secretary of State for putting in evidence within a relatively short period of time of receiving Dr Michie's report and Dr Michie's witness statement. Until then there practically was no challenge to be mounted to the Secretary of State's second decision. The second witness statement of Dr Michie makes it clear that even though the grounds have not (?) been amended, the claimant is persisting with the challenge; and the Secretary of State got evidence in the form of reports from Dr Richie and Dr Vickers which dealt further with the reasons why the Secretary of State was not satisfied with the decision that had been taken. This challenge is not solely to be laid at the door of the Secretary of State for putting in evidence at a relatively late stage. He has to look at the earlier chronology of events.
120. In any event, it was made clear in correspondence at the end of last week that whilst the Secretary of State's preference was for the hearing to go ahead on all issues today and tomorrow, the Secretary of State's alternative was to agree to the whole matter being adjourned, which is what you Lordship has ordered today. And in fact had that offer been accepted on Friday then it is quite likely that some of the costs of preparation and attendance would have been avoided. Rather than the Secretary of State paying the costs of this hearing, my submission is that the Secretary of State should have the costs of this hearing because he has effectively succeeded, both in his argument that the case in D was academic and in his argument that the case of Z should not be split.
121. For those reasons I oppose Miss Harrison's application and make an application on behalf of the Secretary of State.
122. MISS HARRISON: Dealing with D, as I have indicated to your Lordship, there was the matter of a declaration relating to D's age that was not resolved between the parties until some time in the middle of February, the claimants having chased the Secretary of State on at least two occasions to come to a response to the letter we wrote on 22 December. That was already at a time when a substantial amount of preparation on her case had been carried out. The difficulty as well with limiting any costs to a date in December obviously precludes the claimant making - - or does not exclude costs in terms of responding and making proposals for negotiated settlement which have been on-going. It could not be the Secretary of State's case that he was simply saying yes, but that would be the end of the matter because there have been negotiations about quantum that have continued until shortly before the hearing. We say that certainly those matters should be the subject of a costs order against the Secretary of State.
123. With regard to Z's costs, again although the Secretary of State asserts that the evidence - we say in particular of Mr Richie - has to be looked at in the chronology of further evidence. It is simply wrong because that evidence does not actually respond to anything that Dr Michie said in his second witness statement which was effectively explaining his decision that he had made and responding to the letter on 25 November. The reason why the pleadings were never amended was because it was evident from that point that we would respond, and, having responded, that there would be a second decision. The fact of the matter is that it took the Secretary of State until 22 February to make that decision, making it obviously impossible for the claimant to be granted leave, and then the pleadings, and come before the court and, again, facing the problem that there is a whole raft of evidence we have not had a chance to deal with. Even if the Secretary of State is right - and we say he is fundamentally wrong in saying that there is anything about Mr Richie's evidence that goes to the relief, goes to the reliability of the first assessment that Dr Michie made in May 2005 - it still does not explain why that evidence was put in two days before the hearing, making it absolutely plain that we could not properly go ahead and resolve that part of the case. The Secretary of State has not explained to your Lordship why it took that length of time, even if it is right that he was responding to evidence he had got on 17 January, to do that, particularly since the local authority had served evidence about that from Dr Richie some time earlier. So it was not a new matter that the Secretary of State was not aware of. It made it inevitable that those costs of preparing the case were going to be wasted unless the court was going to take the course that we proposed which was to deal with matters that we said the court could deal with. That was the way of saving costs unnecessarily thrown away because it is, with respect, ridiculous to suggest to the Secretary of State that on Friday we could have saved the costs of the preparation. A substantial amount of the costs had already been wasted in terms, certainly, of my preparation of this case starting on Monday. It was in an attempt to save those wasted costs that we suggested that at least the substantive part of the case could have been argued today.
124. For those reasons we say that it would be appropriate for an order of costs to be made against the Secretary of State in both cases. If you do not agree with that, then the only appropriate order at this stage would be for costs to be reserved. Unless I can assist you further, those are my submissions.
125. MR JUSTICE FORBES: In case of D the order I make is that the defendant is to pay the claimant's costs up to and including 31 December 2005. Thereafter there is to be no order as to costs.
126. In the case of Z the order I make is that the costs of and occasioned by today's hearing are to be the claimant's costs in the case. Is there anything else?
127. MISS RICHARDS: No, my Lord.
128. MR JUSTICE FORBES: I ask if counsel would provide an order embracing both matters. Is there any reason why that cannot be done?
129. MISS HARRISON: Certainly not. We can provide the associate with an order. There is one final matter: in the light of the submissions my friend has made about the nature of this case and that it is not, as it were, test case litigation and the case will turn on its own merits, as I have indicated to your Lordship, those who instruct me have five other cases that have been stayed pending this case. It seems to us - in the light of submissions made by the Secretary of State and the way in which they intend to argue Z's case, that it does very much turn on its own facts - it does seem that there is no longer any purpose or justification in simply staying those cases and it would assist in terms of resolution of those cases particularly because they do concern minors. All of those cases are persons who, the Secretary of State accepts, are minors; that they should now have those stays lifted.
130. MR JUSTICE FORBES: Are the stays by order of the court or are they just informal stays between the parties?
131. MISS HARRISON: It has been on the basis of consent orders that have been endorsed by the court.
132. MR JUSTICE FORBES: In that case I have no doubt that if it is to be changed that can be done by consent as well.
133. MISS RICHARDS: It cannot be dealt with this afternoon. I do not know anything about these cases. My instructing solicitor is not the solicitor dealing with it.
134. MR JUSTICE FORBES: Certainly I am not prepared to do it without the agreement by consent if there are consent orders in place at the moment. But if there are consent orders staying those other actions in place at the moment and it is now clear - and parties have had an opportunity to consider the matter - once it becomes clear there is no purpose to be served in maintaining those stays, then those stays can be removed by consent. That would seem to be correct.
135. MISS HARRISON: I am grateful.
136. MR JUSTICE FORBES: Is there anything else?
137. MISS HARRISON: No.
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