R R v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thirlwall |
| Judgment Date | 10 February 2012 |
| Neutral Citation | [2013] EWHC 4243 (Admin) |
| Docket Number | CO/9807/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 February 2012 |
[2013] EWHC 4243 (Admin)
Mrs Justice Thirlwall
CO/9807/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr D Suterwalla (instructed by Harter and Loveless) appeared on behalf of the Claimant
Miss C Rowlands (instructed by DMH Stallard) appeared on behalf of the Defendant
The claimant is a national of Afghanistan. He seeks judicial review of the refusal by the defendant to treat him as a 'former relevant child' within the meaning of section 23C of the Children Act 1989. Were he to be so treated he would be entitled to a range of services under the Children Act. The defendant resists the claim.
Background
The claimant left his home country when he was 3 years old. On his account his parents were killed and he escaped with an uncle with whom he lived for several years in Iran. In May 2008, after an arduous journey, he arrived in the United Kingdom. On 22 May he presented himself at the United Kingdom Border Agency ("UKBA") in Croydon and claimed asylum. At that time he said he was 15 years old. The UKBA referred him to the defendant for assessment of his age. Assuming, as I do, that the UKBA acted in accordance with the Home Secretary's 2007 Policy on Age Dispute Cases, it follows that UKBA staff formed the view that his appearance or demeanour "very strongly" suggested that he was 18 or over at that time. The defendant provided the claimant with accommodation in a shared house with other young people until they carried out an assessment of his age.
On 27 May 2008, the defendant assessed him to be over 18 years old. It therefore referred him back to the UKBA who, through the National Asylum Support Service (NASS) provided him with accommodation and you subsistence support. For some time he lived in a hostel with adults. After that he was moved to different addresses. He currently lives in north west London. NASS continues to provide his accommodation and subsistence money.
On 23 June 2008, the Secretary of State notified the claimant that consideration of his asylum application was to be referred to Greece under the Dublin II Regulations. On 23 September 2008, Greece was deemed to be the Member State responsible for the consideration of the claimant's asylum application by default under Article 21C of the Dublin II Regulation. The claimant's asylum claim in the United Kingdom was refused and certified on safe third country grounds by virtue of part 2, paragraph 3 (2) of the Asylum and Immigration (Treatment of Claimants, etc.Act) 200On 15 October 2008, the claimant filed an application for judicial review challenging i) the failure/refusal of Croydon on 25 September 2008 to undertake a reassessment of the claimant's age or to determine him to be a child and ii)the decision of the Secretary of State, dated 21 August 2008, that the claimant was aged 18 or over.
The claimant's application was effectively stayed, or at least stalled, behind other age assessment cases which were then being considered, first in the Court of Appeal, and then in the Supreme Court.
On 13 September 2010, in the light of the judgment of the House of Lords in R(A) London Borough Croydon [2009] UKSC 8, the court granted the claimant permission to amend his grounds to apply for substantive consideration of the question of his age. On 28 September 2010, the claimant withdrew his judicial review application against the Secretary of State, upon the Secretary of State undertaking to withdraw the claimant's third country certification and to consider his asylum application substantively. The claim for asylum was subsequently considered and refused on 18 February 2011. His appeal stands adjourned.
On 22 November 2010, the court granted the claimant permission to apply for judicial review and directed that the matter be listed for a fact-finding hearing to determine his age. In the meantime, for a prolonged period during 2009 and then again during 2010, the defendant promised a further assessment of the claimant's age. This was eventually carried out on 9 December 2010. It concluded that the claimant was an adult; 18 years plus.
The fact-finding hearing took place before Kenneth Parker J on 24 and 25 May of last year. It was the defendant's case that the claimant was at least 21 years old by that stage. It was the claimant's case that he was still under 1In a detailed judgment, dated 14 June 2011, Kenneth Parker J accepted Croydon's second age assessment, dated 9 December 2010, that the claimant was 18 plus as at that date. He concluded that the "only safe conclusion" that he could reach was that the claimant's date of birth was 9 December 1992.
In an order dated 14 June 2011, Kenneth Parker J gave the claimant liberty to amend his claim to raise any further claim arising from the judgment of the court in respect of Croydon's obligations under the Children Act 198Accordingly, the claimant filed supplementary grounds claiming that he should be treated as a "former relevant child" because the effect of the judgment of Kenneth Parker J was that he, the claimant, was only 15 years and 6 months old when he first came to the attention of Croydon's Children's Services Department.
The matter eventually came before Lang J on 19 December and had to be adjourned. It was listed before me last week for permission, presumably on the basis that the amended claim raised new grounds. The claim was plainly arguable and I gave permission to claim judicial review at the outset of the hearing. The hearing was devoted to the argument on the substance of the claim.
The relevant statutory provisions are not in dispute. They are to be found in The Children Act 1989 and the Care Leavers (England) Regulations (2010), which replaced the Children (Leaving Care) (England) Regulations of 2001.
Section 20 of the Children Act is headed 'Provision of accommodation for children: general'. By Section 20:
"(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of —
a)there being no person who has parental responsibility for him;
b)his being lost or having been abandoned; or.
c)the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
…(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation."
I interpose that a child means a person under the age of 18, (see section 105 (1) of the Act). It was not in dispute, in this case, that a child without accommodation is a child in need. If authority for that is required it is to be found in the case of R v Northavon District Council ex p Smith [1994] 2 AC 402, 406.
Section 22 of the Children Act states:
"(1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is —
…(b)provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which [are social services functions within the meaning of] the Local Authority Social Services Act 1970 [apart from functions under sections 23B and 24B]."
Section 22C is headed 'ways in which looked after children are to be accommodated and maintained'. By subsection (1):
"(1)This section applies where a local authority are looking after a child ("C").
(2)The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)).
(3)A person ("P") falls within this subsection if —
(a)P is a parent of C;
(b)P is not a parent of C but has parental responsibility for C; or
(c)in a case where C is in the care of the local authority and there was a residence order in force with respect to C immediately before the care order was made, P was a person in whose favour the residence order was made.
(4)Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so —
a)would not be consistent with C's welfare; or
b)would not be reasonably practicable.
(5)If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.
(6)In subsection (5) "placement" means—
(a)placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;
(b)placement with a local authority foster parent who does not fall within paragraph (a);
(c)placement in a children's home in respect of which a person is registered under Part 2 of the Care Standards Act 2000; or
(d)subject to section 22D, placement in accordance with other arrangements which comply with any regulations made for the purposes of this section.
(7)In determining the most appropriate placement for C, the local authority must, subject to the other provisions of this Part (in particular, to their duties under section 22) —
(a)give preference to a placement falling within paragraph (a) of subsection (6) over placements falling within the other paragraphs of that subsection;
(b)comply, so far as is reasonably practicable in all the circumstances of C's case, with the requirements of subsection (8); and
(c)comply with...
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