R HBTN (by her litigation friend, Francesco Jeff of the Refugee Council) v Sunderland City Council

Hearing dates: 13 November 2019

Approved Judgment

Dan SquiresQC sitting as a Deputy High Court Judge:

Introduction

The Claimant is a Vietnamese national. She claims she is a child. She was subject to an age assessment by a local authority in the north east of England earlier this year but is not sure which authority conducted the assessment and did not retain a copy of it. On 11/12 February 2019, Sunderland City Council (“Sunderland”) conducted an age assessment of a vulnerable young Vietnamese woman giving the same birth date, but a slightly different name, to the Claimant, and who Sunderland concluded was an adult.

The judicial review claim has been brought because a dispute arose as to whether the assessment of 11/12 February 2019 was of the Claimant or someone else. Sunderland's position was that it did not believe that the assessment it conducted was of the Claimant and refused to disclose it to her. Stockton Council (“Stockton”), into whose area the Claimant had by then moved, along with the Home Office, considered that Sunderland had conducted an age assessment of the Claimant, and that she should be treated as an adult on the basis of that assessment. The dispute between the authorities matters. If it was the Claimant who Sunderland assessed, it is accepted by the parties that, should she wish to claim that she is entitled to support or accommodation as a “child” pursuant to the Children Act 1989, the Claimant will need to issue proceedings against Sunderland challenging its age assessment. If Sunderland had not assessed the Claimant, it is accepted that, as the Claimant is now residing in Stockton, Stockton Council may owe her duties under the Children Act, and, if it considered there is a significant doubt about her claimed age, would need to conduct an age assessment for itself.

I am grateful to the parties for their submissions and grateful to counsel for the clear and helpful way the rival cases were put orally and in writing.

Factual background

The Claimant is Vietnamese. She claims she was born on 26 November 2002 and is thus aged 16 and a child. She states she was trafficked into the UK in 2018 and then held for approximately 2–3 months before coming to the attention of the police. She states that she was arrested by the police and taken to a police station whereupon she was referred to the social services department of a local authority, though she was not aware at the time which authority it was. According to the Claimant she was then subject to an age assessment.

On 11 February 2019 a vulnerable Vietnamese girl/young woman was referred by Northumbria Police to Together for Children Sunderland (“TfCS”), an arm's length provider of children's services to the First Defendant authority. The girl/young woman was subject to an age assessment by TfCS. She had a similar name to the Claimant and gave her date of birth as 26 November 2002, the same as the Claimant. The girl/young woman, who as set out below may or may not be the Claimant, has been referred to in these proceedings as “P”.

TfCS' social workers had “no doubt that [P had] experienced exploitation and possible sexual abuse or trafficking for work purposes” and was “in need of support”, but they concluded that she was “20+” rather than aged 16 as she claimed. According to Sunderland's Summary Grounds of Opposition, P left the premises before the social workers could provide her with a copy of the typed age assessment, and the Claimant did not retain a copy of the assessment that was conducted in relation to her.

On 20 February 2019 officers from the Home Office's North East and Cumbria Immigration Enforcement were notified that a Vietnamese female had been arrested for immigration offences. It is not disputed that that person was the Claimant. Home Office Immigration Officers made contact with Sunderland Social Services and on 21 February 2019 were forwarded a copy of the age assessment of P. The relevant Chief Immigration Officer at the Home Office was satisfied, on receipt of the assessment of P, that the person arrested and P were the same person.

On 22 February 2019 the Home Office wrote to the Claimant. They noted that she had applied for asylum and given her date of birth as 26 November 2002. It was stated that she had not provided evidence to substantiate the claim as to her age, and that, furthermore, “a … local authority age assessment has been conducted with a conclusion that you are 18 years old or over, which has been accepted by the Home Office.” On that basis the Home Office treated the Claimant as “an adult claimant for asylum” and placed her in adult accommodation.

On 13 March 2019 the Claimant was referred to solicitors by the Refugee Council. The Council had concerns about the Claimant's young age and the unsuitability of the adult accommodation in which she was then residing. Her solicitor sent a letter to the Home Office on 14 March 2019 requesting disclosure of the age assessment being relied on by the Home Office and/or the name of the local authority who carried it out. The Home Office did not respond and on 19 March 2019, the Claimant's solicitor sent a letter before action. On 27 March 2019, the Claimant issued a claim for judicial review against the Home Office challenging the failure to provide the requested information. On 28 March 2019, the Home Office informed the Claimant that it was Sunderland that had conducted the age assessment it was relying on. The judicial review was discontinued.

The Claimant's solicitors wrote on 2 April 2019 to Sunderland setting out the information provided by the Home Office and requesting disclosure of the age assessment it had conducted. They gave the Claimant's name and the date of birth of 26 November 2002. Sunderland responded the same day stating that they had no record of the Claimant. As set out below, it appears that was because, although the young woman assessed on 11/12 February 2019 gave the same date of birth as the Claimant, her name, while similar, was differently recorded to the Claimant's name.

On 8 April 2019, the Claimant's solicitor wrote a further letter to Sunderland stating that additional information had been received from the Home Office which disclosed a different spelling of the Claimant's name.

On 9 April 2019 the Claimant's solicitors chased Sunderland for a response. Sunderland wrote on 9 April stating that they were reviewing the information and would revert as soon as possible.

On 11 April 2019, the Claimant's solicitor sent a letter before claim to Sunderland challenging its failure/refusal to provide the Claimant with support and accommodation under the Children Act 1989, and, further, challenging the failure to conduct a lawful age assessment. Sunderland did not respond to the letter nor did it revert, as it said it would, to the Claimant's solicitors in response to their letters of 8/9 April 2019.

The Claimant, meanwhile, was by then residing in the area for which Stockton was the responsible local authority. On 4 April 2019, the Claimant's solicitor sent a letter to Stockton seeking support and accommodation for the Claimant as a putative child under the Children Act 1989. No response was received. On 8 April 2019, a letter before claim was sent to Stockton. On 10 April 2019, Stockton replied. They stated that enquiries had been made with the Home Office to establish the whereabouts of any age assessment of the Claimant. Stockton noted that if an assessment has already been completed by another local authority, Stockton would need to see it before making any provision for the Claimant.

On 17 May 2019 the Claimant issued judicial review proceedings against both Sunderland and Stockton. As at that date the position was that Sunderland had not disclosed to the Claimant the age assessment it had conducted and which the Home Office believed related to the Claimant. Stockton meanwhile considered it had no duty, under the Children Act 1989, to provide accommodation or support for the Claimant, or to assess her, because she had already been assessed by Sunderland. The Claimant's challenge was as follows:

i) In relation to Sunderland the Claimant noted that she had been subject to an age assessment but was not aware which local authority had conducted it. She noted that the Home Office considered that Sunderland had conducted an age assessment of her and concluded she was an adult and that the Home Office was therefore treating her as such. Without seeing the age assessment, however, the Claimant could not tell if it related to her. She stated that she had thus been put in the “invidious position” of being treated as an adult on the basis of an age assessment she could not challenge. She claimed: “if Sunderland has conducted an assessment of the Claimant's age [it] acts unlawfully and unreasonably in failing or refusing to disclose that assessment”.

ii) In relation to Stockton, the Claimant claimed that it was aware that Sunderland's position was that the Claimant was not known to them. The Claimant claimed that...