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E (by her litigation friend) v London Borough of X [2005] EWHC 2811 (Fam)

Section 100 of the Children Act 1989 did not prevent the Court from exercising its inherent jurisdiction to assess the age of a ward of court for the purposes of local authority provision.

E (by her litigation friend) v London Borough of X [2005] EWHC 2811 (Fam)

High Court (Family Division): The President

6 December 2005

Summary
Section 100 of the Children Act 1989 did not prevent the Court from exercising its inherent jurisdiction to assess the age of a ward of court for the purposes of local authority provision.

Background
E was raised in Ghana but moved to the UK to live with her mother and her elder sister. In 2004 E fell out with her mother and her subsequent behaviour was notified to the local authority. She was placed with foster carers the local authority removed her after she refused to return to Ghana.

Now homeless, E contacted solicitors who instigated wardship proceedings. An order was made by Munby J in August 2004 who also directed that the local authority prepare a s 37(1) report. That report concluded that there were no grounds to apply for a care or supervision order. E then made an emergency application before Cox J to review the LA's decision; he ordered that the LA find suitable accommodation.

Then in December 2004, the mother claimed that E was in fact six years older than stated on her birth certificate. A further hearing was listed for January 2005, which was adjourned again to 10 March, with the LA directed to provide an Age Assessment report by 28 February. That report concluded that E was between 20 - 22 years old. Accordingly the LA applied to be discharged from the proceedings as it had no duty towards E. Bracewell J refused and directed that E's age be determined by the court for the purpose of the wardship proceedings. On 14 March 2005 the LA terminated E's foster placement though she eventually found shelter with her former teacher.

Issues and Judgment
Counsel for the LA argued that the wardship proceedings were being misused to reverse the Age Assessment and that the Court was being asked to (1) perform an appellate function that ought to be achieved through judicial review and (2) interfere with the LA's discretion on whether to supply services under the Children Act 1989. The President noted that the Court recognises that it will not interfere with powers granted to an authority unless the statute granting those powers expressly permits it to do so and on examining s100 of the Act, he concluded that determining E's age would not be a breach. Further, he concluded that as the original Age Assessment was not a statutory procedure, he was not being asked to review the findings but conduct an original inquiry. Finally, the wardship proceedings were not being misused as the issue of E's age was raised in the course of the proceedings and a judicial determination of her age was necessary for her welfare.

Reviewing the oral evidence of E, her sister, teachers and youth workers, and the documentary evidence of three birth certificates from Ghana that all stated E's birth date as 20 September 1988, he concluded that E is 17. The court would therefore oversee the remaining 10 months of her minority.

Read the full text of the judgment here