ASY -v- London Borough of Hackney (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Case number: CO/1296/2023

In the High Court of Justice
King’s Bench Division
Administrative Court

7 August 2023

Before:

Mr David Lock KC, sitting as a Deputy Judge of the High Court

Between:

The King on the application of
ASY

-v-

London Borough of Hackney

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimant and the Acknowledgement of service filed by the Defendant.
ORDER by Mr David Lock KC, sitting as a Deputy Judge of the High Court:

  1. Pursuant to CPR r. 39.2(4) the Claimant is granted anonymity and is to be referred to as “ASY”. The identity of the Claimant shall not be disclosed outside of these proceedings. There shall not be disclosed in any report of the proceedings the name or address of the Claimant or any details leading to the identification of the Claimant.
  2. Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may not obtain a copy of a statement of case, judgment or order from the court records unless permission has been granted for that person on an application made on notice to all parties.
  3. This application shall be known and listed only as ‘ASY v London Borough of Hackney’.
  4. Pursuant to CPR rule 21.2(3) of the Civil Procedure Rules, the Claimant has permission to conduct these proceedings without the appointment of a litigation friend.
  5. To the extent that is needed, time is extended to allow the Claimant to bring these proceedings.
  6. The application for permission to apply for judicial review is granted.
  7. The application shall be transferred to the Upper Tribunal (Immigration and Asylum Chamber) for an age assessment of the Claimant to be undertaken.
  8. Until the date when the Claimant’s age at the date that he first presented himself to the Defendant seeking support shall be determined by the Upper Tribunal, the Defendant shall treat the Claimant as if he was a child at the material date and provide such support to him as is required to discharge the Defendant’s statutory duties to a child under the Children Act 1989 until 9 August 2023 and thereafter shall treat him as a care leaver who has been accommodated the Defendant for more than 13 weeks.
  9. Costs reserved.

Observations

  1. The dispute in this case is about whether, at the date that the Claimant presented himself to the Defendant seeking accommodation and support and thereafter, the Defendant has made a lawful decision that the Claimant was not a child at the material date but was aged between 22 and 24. The Claimant claims that he was a child and remains a child until 9 August 2023 and that the Defendant has acted in breach of its duties to him under the Children Act 1989 in failing to provide him with accommodation and support as a child in need.
  2. It does not appear to be in dispute that, if the Claimant was a child, he was a child in need and should have been accommodated and provided with support by the Defendant.
  3. It is common ground that the question as to whether the Claimant is a child or not is a matter of precedent fact: see R (A) v Croydon London Borough Council [2009] UKSC 8; [2009] 1 WLR 2557. The Court of Appeal has recently emphasised that separate litigation about the fairness or otherwise of the decision-making process undertaken by a local authority is unlikely to be a good use of the Court’s time: see R (SB) v Kensington and Chelsea LBC [2023] EWCA Civ 924. A local authority will act lawfully if it refuses to treat a person as a child if the person is not a child, even if that decision was reached after a short form assessment process. Equally, however good a decision-making process the local authority has followed, it will act unlawfully in refusing to treat a person as a child if the person was, in fact, a child on the material date.
  4. It follows that the real issue for me is whether the material produced by the Defendant is so compelling that there is no reasonable prospect that the Upper Tribunal would consider that the Claimant was not a child on the date when the Claimant presented himself to the Defendant seeking support and at material times thereafter.
  5. A fully compliant Merton assessment may support such a case but that is not the position here. A short-form assessment, such as the one undertaken here, is less likely to do so. In making the decision as to whether there is an issue to be tried, I do not accept that there is no difference between a Merton compliant assessment and a short form assessment following R(HAM) v LB Brent [2022] EWHC 1924 Admin. Following R (SB) v Kensington and Chelsea LBC, the primary focus should be on whether the Claimant was actually a child at the material date, and not only in the fairness of the decisions making process. The case should thus be transferred to the Upper Tribunal for determination unless the material shows conclusively that the person claiming to be a child was not a child, in which case there is no case for the Upper Tribunal to consider.
  6. In this case I do not consider that the “Shortened age assessment questions” document completed by the social workers means that there is no reasonable prospect of the Claimant establishing that it is more likely than not that he was under 18 at the material time. Even if it were, the additional material provided from Ms Angeli of the Red Cross may well support the case that, as a matter of fact the Claimant was a child at the material time. I reject the claim made by the Council in correspondence that the observations from the Red Cross worker were “biased” because the Red Cross tends to support asylum seekers. There is no basis for that claim just as there would have been no basis for saying that the Defendant’s social workers were biased because they were employed by the Defendant and thus would be seeking to minimise the obligations that the Defendant was taking on. There is nothing in the papers to suggest that any of these professionals were doing anything apart from giving their best views based on their own observations. The question is which professional was right and it does not assist the Defendant to claim that a Red Cross worker was biased.
  7. The social workers conclusions appear to lack a degree of conviction because they are, at best, tentative. Hence, for example, there is a measure of uncertainty where the social workers say “Because you have said you don’t know a lot. It makes us wonder if you are telling us the truth about your age”. That is not a strong conclusion. Equally, the social workers say “You do also look older than someone who would have turned 17 today. This is because of all the things I have been through”. That appears to raise doubts about the extent to which the social workers relied on the Claimant’s appearance. I also bear in mind, as Thornton J said in R (AB) v Kent CC [2020] PTSR 746 that “Physical appearance is a notoriously unreliable basis for assessment of chronological age”.
  8. Hence this is a case where I cannot be confident that the Upper Tribunal will come down one way or another. I therefore grant permission and transfer the case to the Upper Tribunal for determination of the Claimant’s age at the material date.
  9. The Defendant raises the issue of “time” but, in the context of someone who claims not to be yet 18, that is a sterile issue. If the Defendant acted wrongfully in refusing to accept that the Claimant was 18 and the Claimant remains under the age of 18, the breach would have been continuing at the date of issue.
  10. If the Claimant is right about his age, he will turn 18 on 9 August 2023, namely 2 days after this order is made. However, if he proves his case, the Defendant will have acted unlawfully in failing to provide him with accommodation and support from August 2022. If that accommodation and support had been provided, the Defendant would be obliged to treat him as a care leaver who was previously provided with accommodation by the Defendant under the Children Act 1989.
  11. The balance of convenience favours granting the Claimant interim relief because (a) if he is right, the Defendant’s duty to him as a previously accommodated care leaver will continue until he is at least 21 years old and (b) he appears to be suffering in the adult NASS accommodation which may well be due to his immaturity. I accept that this support will come at a cost to the Defendant but that does not tilt the balance in the Defendant’s favour. However, the Defendant cannot be made to treat the Claimant as a child when, on his own case, he has reached the age of 18. Hence, the Defendant can only be required to treat the Claimant as a previously accommodated care leaver after 9 August 2023.

Case Management Directions

The case shall be transferred to the Upper Tribunal who will then make directions about the determination of the Claimant’s age at the material time.