CSN -v- Derby City Council (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Case number: AC-2025-BHM-000231

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

In the matter of an application for judicial review

15 September 2025

Before:

HHJ Tindal
(Sitting as a Judge of the High Court)

Between:

The King
on application of
CSN

-v-

Derby City Council

Order

Notification of the Judge’s decision on the application for permission
After consideration of the documents lodged by the Claimant and Defendant

ORDER by HHJ Tindal (Sitting as a Judge of the High Court)

  1. Pursuant to CPR 39.2(4)) and the Court’s inherent jurisdiction:
    a. No person shall identify the Claimant in connection with these proceedings. The Claimant shall be referred to as CSN.
    b. A non-party may not obtain or inspect a copy of any Statement of Case, or any other document filed with the Court and to which a non-party may have access pursuant to CPR 5.4A-D or otherwise, unless it has been produced or edited so as to comply with para.1 of this Order and/or any subsequent direction made by the Court.
    c. Anyone affected by the terms of this Order shall have permission to apply to vary or set aside any part of it, on 3 working days’ notice.
  2. The need for a Litigation Friend is dispensed with under CPR 21.2(3).
  3. The Claimant’s application for permission for judicial review is refused.
  4. The Claimant’s application for interim relief is refused.
  5. No order for costs save public funding assessment of the Claimant’s costs.

Reasons

  1. This judicial review challenges the Defendant’s age assessment on 7h May 2025 that the Claimant, a Vietnamese national who arrived in the UK in April 2025 and has claimed asylum, was an adult. The Claimant claims to be (now) 17 years old (asserted date of birth 26th August 2008). In his interview, he presented to the Defendant as calm and confident and there is no apparent need for a Litigation Friend. Nevertheless, given the asylum claim, I make an Anonymity Order.
  2. The legal principles are very familiar. I have been referred to numerous cases, but the key ones are R(C) v Merton LBC [2003] EWHC 1689, R(A) v Croydon LBC [2009] UKSC 8, R(FZ) v Croydon LBC [2011] EWCA Civ 59, R(HAM) v Brent LBC [2022] EWHC 1924 (Admin) and all were summarised in R(SB) v KCLBC [2023] EWCA Civ 924. As is now clear, there are two very different bases of public law challenge to age assessments such as this one:

    2.1 Firstly, the Court itself can assess age of a putative child as a question of fact under s.20 Children Act 1989 (‘CA’): R(A)). When considering permission for judicial review, the Court should ask whether the evidence raises a factual case which at its highest, could not succeed in a contested factual hearing. If so, permission should be refused. If not, the case should be transferred to the Upper Tribunal for directions/hearing: R(FZ). However, as the Court of Appeal emphasised at [6], the threshold falls to be assessed on all the material before the Court, not simply a claimant’s bare assertion that he is a child.

    2.2 Secondly, it remains strictly open to a claimant in judicial review proceedings to challenge an age assessment on conventional public law grounds, as in Merton. But as explained in R(HAM), the commonly-made distinction between ‘Merton-compliant’ and ‘short-form’ age assessments is legally irrelevant: what matters is that there is a reasonable investigation and fair process on the facts; and that if an authority is ‘minded to find’ that the applicant’s account is not credible, they should be given an opportunity to address thosey concerns before a final assessment is made. There is no ‘one-size fits all’ approach on the numbers of social workers assessing or appropriate adults being present. In an ‘obvious case’ a ‘reasonable enquiry’ may be brief, but that less obvious cases require fuller investigation. Moreover, as Swift J emphasised in R(HAM) at [32]:

    “[I]f the case is an obvious one what is required by way of reasonable enquiry may be brief. There will be some instances where lawful decisions can be taken on the basis of appearance and demeanour alone.”

    However, as stressed in R(SB), it will rarely be appropriate to ‘hive off’ a public law challenge. An arguable public law lapse might support an application for permission, but if it is granted, the whole case should be transferred to the Upper Tribunal.
  3. As usual, the claim adopts both grounds of challenge. It is convenient to address the judicial review challenge first. The Claimant contends the age assessment was unfair as the Defendant (i) failed to take account of margin for error; (ii) relied on inherently unreliable points they were in any event not expert enough to assess; (iii) failed to have an appropriate adult; (iv) failed to give CSN a proper opportunity to respond to possible adverse conclusions by following the ‘minded to’ process; and (v) took an erroneous approach to CSN’s credibility.
  4. Dealing with the two ‘hard-edged’ points of genuine fairness (iii) and (iv) first, the requirement for an appropriate adult and the ’minded to’ process can be vital safeguards in age assessment cases. But as is made clear in R(SB), they are not mandatory in all circumstances: an assessment can still be ‘fair’ without them. In this case, the Claimant presented as calm and confident and even asked if he could speak to a solicitor after the adverse decision. The absence of an appropriate adult did not arguably disadvantage him, let alone being unfair. Likewise, the Defendant reached its conclusion that the Claimant was an adult on the usual grounds of appearance and demeanour, not because it rejected his account as incredible in some way. The only ‘credibility issue’ was that they did not believe that he was a child – there was no need to give him an opportunity to reopen that decision.
  5. Indeed, the other three points of ‘unfairness’ are no more than factual ways of disagreeing with the age assessment itself. There was no real ‘credibility issue’ as discussed, the Defendant employed expert social workers eminently qualified to assess age who formed their own view rather than simply adopting the Home Office’s view; and they did not consider this a borderline case with any ‘margin for error’.
  6. The real issue is whether the Claimant’s evidence raises a factual case which at its highest, could not succeed in a contested factual hearing: i.e. the first basis of challenge. However, not only is the Defendant’s conclusion plainly sound, the Claimant’s challenge is inherently weak. His asserted age is based on what his grandmother told him when he was six – on his own case over a decade ago, rather than on any objective or testable evidence. I do not consider that it crosses the R(FZ) threshold, but I confess I do not myself see the photographs of the Claimant as much of a ‘smoking gun’ as the Defendant does. Likewise, the criticisms of the Claimant’s statement would not be a reason to refuse permission if the claim was otherwise arguable, but it is not. I therefore refuse permission and the application for interim relief. As the Claimant is legally-aided, the usual order applies.

Signed: HHJ Tindal