The King (on the application of Kra) v Cheshire East Council
| Jurisdiction | England & Wales |
| Judge | Fordham J |
| Judgment Date | 13 March 2024 |
| Neutral Citation | [2024] EWHC 575 (Admin) |
| Year | 2024 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-MAN-000486 |
[2024] EWHC 575 (Admin)
Fordham J
Case No: AC-2023-MAN-000486
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Carl Buckley (instructed by Bhatia Best Solicitors) for the Claimant
Julian Sidoli (instructed by Cheshire East Council) for the Defendant
Hearing date: 13.3.24
Judgment as delivered in open court at the hearing
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Fordham J Note: This judgment was produced and approved by the Judge, after using voice-recognition software during an ex tempore judgment.
Introduction
This is a permission-stage age-assessment judicial review claim. It has been listed for consideration of interim relief. The order sought by the Claimant is that, pending resolution of these judicial review proceedings, the Council is to provide accommodation and support to the Claimant under the Children Act 1989. An anonymity order is in place. Age-assessment claims raise an objective factual question – as to whether a claimant is or is not a child – for substantive determination afresh in the judicial review proceedings ( R (FZ) v Croydon LBC [2011] EWCA Civ 59 at §4). Conventional judicial review grounds: (a) are apt to become “subsumed” within this fresh factual determination ( FZ at §5); (b) have a materiality which itself calls for confronting the merits ( R (SB) v Kensington & Chelsea RBC [2023] EWCA Civ 924 at §85); and (c) should not without good reason be ‘hived off’ (§86). The permission-stage arguability question is whether the material before the Court raises a factual case which, taken at its highest, could properly succeed in a contested factual hearing ( FZ at §9).
The Upper Tribunal
In this case the parties have previously expressed agreement that the objective factual question of the Claimant's age should be resolved substantively by the Upper Tribunal (“UT”). That has been the Defendant position since its pre-action response (13.12.23) and is the Claimant's pleaded position in his judicial review grounds (18.12.23). Neither party has invited this Court to transfer the case to the UT for consideration of permission for judicial review. The Administrative Court “will normally decide whether permission should be granted before considering whether to transfer the claim to the Upper Tribunal” ( FZ §31; SB §64) but “the matter could be transferred for permission also to be considered” ( FZ §31; Senior Courts Act 1981 s.31A(1)(b) and (2)). Neither party has submitted that the issue of interim relief should, or could, be left to the UT. The UT's jurisdiction can be found in ss.15 and 18 of the Tribunals Courts and Enforcement Act 2007 and Article 11(c)(ii) of the First-Tier Tribunal and Upper Tribunal (Chambers) Order 2010. Mr Buckley told me that it is his understanding that the UT would not have the jurisdiction to grant interim relief, but I have not needed to hear argument on that point.
Background
The Claimant arrived in the UK on 21.8.23. He has explained to the authorities that he left his country of origin (Sudan) in October 2022, travelling and spending time in Chad, Niger, Algeria, Morocco, Spain and France. On arrival here, he applied for asylum and gave a date of birth of 28.12.06. That meant he was 16 (now 17), turning 18 on 28.12.24. Immigration officials, on his arrival day, assessed the Claimant's date of birth as 28.12.99, so that he was 23 (now 24). A Home Office decision letter said the Claimant had “failed to produce any satisfactory evidence to substantiate” his claimed date of birth and that his “physical appearance and demeanour very strongly suggests that you are significantly over the age of 18”.
The Claimant was dispersed to the North-West and is currently in shared adult accommodation in Burnley. Dr Sidoli for the Council has emphasised that this is in a house, with 3 or 4 others, in which the Claimant has his own room. Following a referral to the Council, two social workers conducted a “brief enquiry” age assessment (18.9.23), which was approved and signed off by a team manager. Two documents were generated. The first was incomplete and bore handwritten annotations. It was handed to the Claimant, who later gave it to his solicitors. The second document is the Decision Document. It was obtained by the solicitors from the Council (on 8.12.23). It is complete and contains typed contents from the two social workers, together with the typed observations of the team manager. The Decision Document records the assessment that the social workers had “no doubt” that the Claimant was “significantly over the age of 18”, a conclusion approved by the team manager.
Delay
A delay objection has been raised. But I am satisfied that there is nothing in it. The Claimant found himself in the shared adult accommodation, having been age-assessed. He was then able to enlist the help of solicitors. They obtained the incomplete document from him. They engaged in correspondence, eliciting the Decision Document from the Council. There was a proper pre-action letter. Legal aid was secured. The papers were prepared and filed within 3 months. Any prejudice from delay has been to the Claimant.
Some ‘Working Illustration’ Cases
Deciding interim relief in an age-assessment judicial review claim is an anxious and difficult task. Remembering the important health warning that public law cases are always intensely fact-specific, I have found it helpful to consider – with the assistance of both Counsel – some recent ‘working illustrations’. Here they are:
In R (K) v Milton Keynes Council [2019] EWHC 1723 (Admin) (Pepperall J, 9.4.19), the claimant said he was 16 (turning 18 on 25.9.20) but was assessed as “clearly significantly over the age of 18”. Interim relief was refused, emphasising that (§§16, 5): (a) there was no properly arguable case; (b) the defendant had agreed to reconsider; (c) there had been delay; and (d) there was no evidence of harm from the current placement.
In R (AS) v Liverpool City Council [2020] EWHC 3531 (Admin) (Nicol J, 21.12.20), the claimant said he was 17 (turning 18 on 1.1.21) but was assessed as “20 years or older”. That case was at the pre-permission stage. Interim relief was granted, pending consideration of permission for judicial review (§24), emphasising (§§7, 22) the statutory entitlements of a former looked-after child.
In R (AH) v Kent County Council [2021] EWHC 878 (Admin) (Heather Williams QC, 25.3.21), the claimant had said he was 17 (having now turned 18 on 16.3.21) but had been assessed as 23. The case was at the pre-permission stage and there was held to be a serious issue to be tried (§20). Interim relief was granted, emphasising (§§22–34): (a) the nature, significance and resource-implications of support and accommodation as a former looked-after child; and (b) evidenced vulnerabilities and concerns.
In R (ARM) v Brent LBC [2022] EWHC 1454 (Admin) (Benjamin Douglas-Jones QC, 13.5.22), the claimant said he was 17 (turning 18 on 20.12.22) but was assessed to be aged 23–25. Permission for judicial review was granted and the case transferred to the UT (§§38–39). Interim relief was refused, emphasising that (§46): (a) the claimant was in housing; (b) there was no medical evidence of psychiatric or psychological suffering; (c) interim relief could compel the use of resources; (d) it would place him as an adult in a children's hostel; (e) the interim order would substantially determine the claim; and (f) the claimant on his own case was due to turn 18 in 7 months.
In R (MO) v Newham LBC [2022] EWHC 3224 (Admin) (Philip Mott KC, 29.11.22), the claimant said he was 17 (turning 18 on 21.3.23) but was assessed to be aged 23–24. Permission for judicial review was granted and the case transferred to the UT (§2). Interim relief was granted, emphasising (§§11–17) that: (a) although the claimant would shortly turn 18 on his own case, the duties and benefits for a child and then a former looked-after child were significant; and (b) the local authority was well-equipped to deal with any safeguarding risks.
In R (BAA) v Liverpool City Council [2023] EWHC 252 (Admin) (HHJ Pearce, 8.2.23), the claimant said he was 17 (turning 18 on 5.5.23) but was assessed to be over 18. Permission for judicial review was granted and the case transferred to the UT (§1). Interim relief was refused, emphasising that (§§36–41): (a) this could not be said to be a strong claim; (b) resources would be diverted; (c) an adult should not be housed with vulnerable children; (d) there was no evidence of particular vulnerability; (e) the harm from wrongly accommodating an adult with children was greater than that from wrongly accommodating the claimant with adults; and (f) the claimant on his own case was nearly 18.
In R (NS) v West Northamptonshire Council [2023] EWHC 1335 (Admin) (UTJ Church, 27.4.23), the claimant said he was 17 (turning 18 on 1.8.23) but was assessed to be over 18. The case was at the pre-permission stage, but there was a serious issue to be tried (§44). Interim relief was refused, emphasising that (§§45–54): (a) the claimant would lose 3 months accommodated as a child and then the prospect of a statutory entitlement as a former looked-after child; (b) if interim relief were granted the claimant would be accommodated with 15–17 year olds and another 16–17 year old would be delayed in being accommodated; (c) the claimant's 18 th birthday was imminent; and (d) interim relief would determine the claim.
In R (BH) v Newham LBC [2023] EWHC 1611 (Admin) (Clare Padley, 17.5.23), the claimant had said he was 17 (but had now turned 18 on 25.2.23) but had been...
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