HJ (by her Litigation Friend Ron Brejier) v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | David Lock |
| Judgment Date | 11 February 2020 |
| Neutral Citation | [2020] EWHC 384 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/225/2020 |
[2020] EWHC 384 (Admin)
David Lock QC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Case No: CO/225/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Marisa Cohen (instructed by Scott-Moncrieff & Associates Ltd) for the Claimant
Hilton Harrop-Griffiths (instructed by Croydon legal Team) for the Defendant
Hearing dates: 6 February 2020
Approved Judgment
David Lock QC:
The Claimant is a young woman from Vietnam. She says that she arrived in the United Kingdom on 24 October 2019 having travelled from Vietnam partly by air and partly in the back of lorries. She states that she was born on 17 January 2003 and is presently 17 years old. I have made an anonymity order in this case and direct that the Claimant shall be known as HJ. Those are not her initials.
The primary facts are summarised in HJ's Amended Statement of Facts and Grounds. There was no objection to HJ having permission to amend her original Statement of Facts and Grounds and therefore I give permission for the amendments. This document explains that her case is that she is an unaccompanied asylum seeking child who has an outstanding claim for international protection and further that there are indicators that she is a potential victim of trafficking.
HJ's Grounds set out that her family followed the Hoa Hoa religion, and had encountered persecution as a result from the Vietnamese authorities. She says that her mother was hounded out of Vietnam some years previously, and she understands that her mother was living in the United Kingdom. Part of her motivation in coming to the United Kingdom appears to be that she is hoping to be reunited with her mother, although she does not have an address for her mother.
HJ has given the authorities and her solicitors an account involving a series of accidental meetings with various Vietnamese individuals in the United Kingdom which led her to living at a property in Greenwich under the supervision of a man she was only able to identify by his first name and I will refer to as “CC”. The property where she was staying accommodated various other Vietnamese nationals and her room had a padlock on the outside of the door. Until her arrest, she says she was working in a nailbar, as arranged by CC, but does not appear to have been paid for this work. HJ is represented in these proceedings by a Litigation Friend. Her Litigation Friend has expressed concern that this account may not be entirely accurate, with the implication that she is telling her solicitors what she has been told to say. The Litigation Friend is concerned that she may have been trafficked from Vietnam to the United Kingdom but has not yet had the confidence to tell her full story to her solicitors.
HJ was discovered by police officers on 15 January 2020 who were attending the property in Greenwich where she lived for an unconnected purpose. HJ says that she was extremely frightened when she was arrested and informed the police that she was aged 15 because she hoped that this would mean that they were less likely to beat her.
On the same day as she was arrested, she was also interviewed by two social workers from the Royal Borough of Greenwich (“RBG”) who asked her a series of questions about her background and how she came to be in the United Kingdom. The social workers concluded that there were inconsistencies in her account and reached the view that she was not a child and may well have been in the UK for longer than she claims. Despite the social workers undertaking an age assessment, the papers presently available do not suggest that the purpose of this interview was clearly explained to HJ and she does not appear to have been accompanied by an appropriate adult who was there to look after her interests. Further, it is presently unclear whether any alleged inconsistencies in her account were put to her or whether the social workers explained that they had concluded that she was an adult and asked her for her reaction.
HJ has alleged in her amended Grounds that a series of errors meant that this age assessment was unlawful in that it was not carried out in accordance with guidance provided by the High Court in R (B) v London Borough of Merton [2003] EWHC 1689 (Admin) (“ Merton”). However, the Claimant's solicitors are not seeking a Declaration that RBG acted unlawfully in concluding that she was an adult. Their case is that the Defendant to these proceedings, the London Borough of Croydon (“LBC”) should not rely upon the assessment carried out by RBG social workers because it was legally defective for the reasons set out at paragraph 49 of the Amended Grounds.
Following that assessment, HJ was advised to contact immigration solicitors. She contacted Wimbledon Solicitors who assisted HJ to claim asylum. Wimbledon Solicitors referred HJ to the Refugee Council who, in turn, referred her to LBC. They were erroneously told that HJ had to be referred by immigration services and they were advised to make an application to Lunar House. By that time Lunar House had closed and the Refugee Council took HJ to a police station. They were unable to assist her.
Between 15 and 19 January 2020 HJ states that she returned to reside at the address of the man she previously stayed with in Greenwich. On 20 January 2020 HJ found her way back to the Refugee Council, which is located within the area of LBC and the Refugee Council referred her to her present solicitors. They sent a pre-action letter to the LBC requesting that they assist HJ by conducting an assessment to determine whether she was a child in need. The solicitors asserted that HJ was within their area within the meaning of Part III CA 1989 and thus LBC owed a duty to assess her needs.
HJ also presented in person to LBC with a support worker from the Refugee Council but says that she was told by LBC staff to present to the National Asylum Support Service (“NASS”) or, if she continued to claim that she was a child, she says she was told she should pursue the matter with RBG on the basis that she was residing in Greenwich. HJ's solicitor responded to LBC by asserting that HJ was within LBC's area and that she should not return to Greenwich because the Refugee Council had concerns about the nature of the relationship between HJ and the man at the property in Greenwich. The Refugee Council thus suggested that it would not be desirable for her to return there.
On the evening of 20 January 2020 HJ returned again to the address in Greenwich because, it seems, she had no practical alternative place to stay. On 21 January 2020 HJ returned once more to the offices of the Refugee Council in Croydon and there was further email correspondence with LBC. HJ was given £10 for food as she had no money and she was taken once again to the LBC social services offices.
LBC have continued to maintain that HJ should present to RBG and that LBC owe her no duties under Part III of the Children Act 1989. At this point LBC had reached this view in reliance upon the terms of a voluntary Pan London Protocol for Unaccompanied Asylum Seeking Children. In reliance on that Protocol, LBC staff were insistent that HJ should seek support from RBG and not LBC. LBC no longer appear to suggest that they are entitled to rely on this voluntary Protocol to require her to seek assistance from RBG.
On 21 January 2020 HJ's solicitors commenced these proceedings and made an application for urgent interim relief to the duty judge. By Order dated 21 January 2020 Mrs Justice Steyn granted interim relief and ordered that LBC was to provide HJ with age-appropriate accommodation and support. Mrs Justice Steyn ordered that an oral hearing should take place to consider whether interim relief should continue and if so, for how long and to consider permission.
The legal case advanced by HJ is straightforward. She claims to be a child who is physically present in the area of LBC and who is a “child in need” who looks to LBC to discharge their assessment duties and, if she is found to be a child in need, to provide her with accommodation and support. She relies on the duty imposed on each local authority under section 17 of the Children covered 1989 to safeguard and promote the welfare of children “within their area who are in need”. Her counsel, Ms Cohen has referred me to the observations of Mr Justice Cobb in R (AM) v Havering LBC and another [2015] EWHC 1004 (Admin) at paragraph 33(iii) that:
“Section 17 and Schedule 2, para 1 and para 3 together create a duty on the authority to assess the needs of each child who was found to be in need in their area R (G) v Barnet at [32]/[77]/[110]/[117]; R (VC) v Newcastle.”
I specifically raised the question as to whether LBC disputed that HJ was a person who was “ within the.. area” of LBC. Mr Harrop-Griffiths has confirmed that he does not take any point on behalf of LBC that HJ's presence within the Croydon area is so fleeting as...
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