RT, R (on the application of) v Liverpool City Council

NCN: [2024] EWHC 2559 (Admin) Case No: AC-2024-MAN-000298

IN THE HIGH COURT OF JUSTICE KING’S BENCH DIVISION

ADMINISTRATIVE COURT (SITTING AT MANCHESTER) BEFORE:

HIS HONOUR JUDGE PEARCE BETWEEN: Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ R (ON THE APPLICATION OF RT)

CLAIMANT - and -

LIVERPOOL CITY COUNCIL

DEFENDANT Legal Representation Ms Gidda (Counsel) on behalf of the Claimant Ms Fisher (Counsel) on behalf of the Defendant Local Authority Other Parties Present and their status None known Judgment Judgment date: 6 September 2024 Transcribed from 12:18:34 until 13:02:07 Reporting Restrictions Applied: Yes “WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.” “This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.” His Honour Judge Pearce: Number of folios in transcript 80 Number of words in transcript 5,721 1. 2. 3. 4. 5.

6. This is my judgment on the Claimant’s application in this age assessment case for interim relief. That application was considered on paper by HHJ Stephen Davies on 29 August 2024. He directed that the application be listed today, giving consequential procedural directions. He also indicated at paragraph 5 of his order: “If appropriate, the judge hearing the application for interim relief may also proceed to determine the question of permission and give directions for the determination of the substantive claim.” HHJ Stephen Davis made appropriate orders relating to the anonymity and proceeding in the absence of a litigation friend. Those orders remain in force. This is a somewhat unusual age assessment case for reasons I shall come to. The Claimant’s position is that on the Defendant’s own documentation, the Defendant has not come to a conclusion on the assessment of the Claimant’s age. The Claimant says that, following various guidance, most particularly the statutory guidance from the Department for Education headed Care of Unaccompanied Migrant Children and Child Victims of Modern Slavery, but also in line with authorities including S, R (on the application of) v London Borough of Croydon and Others [2017] EWHC 265 (Admin), and AB v London Borough of Brent [2021] EWHC 2843 (Admin), where no compliant age assessment has been completed, the Defendant is under a duty to treat

the putative child as a child under the Children Act 1989. Hence, within these proceedings the Claimant simply seeks, by way of substantive relief, orders requiring the Defendant to treat the Claimant as a child, and make appropriate provision. That is unusual because in the majority of age assessment cases that come before the Administrative Court, the issue is not whether an age assessment has been carried out at all, but rather whether the age assessment is a sufficiently compliant age assessment to be sufficient to avoid a challenge to it. If in those circumstances the Court reaches the conclusion that the threshold for the granting of permission to challenge the age assessment is successful, the Court’s usual practice is to transfer the case to the Upper Tribunal for a Fact Finding Hearing on the Claimant’s true age. Indeed, my instinct on reading this case, and I suspect what was behind HHJ Stephen Davies’ reference to making consequential directions if the Court decides to deal with the permission issue, is that if the Court is minded to grant permission, the Court ought to transfer the case to the Upper Tribunal for a Fact Finding Hearing. But as I say, the Claimant’s position is that no age assessment has been completed at all and hence this course is not necessary. In those circumstances, the Claimant’s position is that the age assessment process ought to be

completed. Once it is completed, the adequacy or otherwise of that might be the subject of further applications for relief, but the Court ought simply for the Page 2 of 11 7. 8. 9. moment to address the interim issue of relief pending such a compliant age assessment being carried out, that simply being the Defendant’s statutory duty. I have had my attention drawn to various provisions of the Children Act 1989 relating to the obligation of local authorities to provide services and accommodation to children, including children who appear to be in need. The Claimant is somebody who has entered this country unaccompanied and is an asylum seeker. If he is a child, the Defendant Local Authority clearly owes relevant statutory duties in relation to the provision of services and accommodation under the 1989 Act, and indeed the contrary is not seriously argued. The question though in the first place before I turn to dealing with the merits, is a procedural question about how to proceed in this position. The Claimant is concerned that if I proceed to deal with the case on the basis that the Defendant has carried out an age assessment, and refer matters to the Upper Tribunal for a Fact Finding Hearing, that the Upper Tribunal will be somewhat compromised in its ability fairly to deal with that issue as a result of the fact that the Claimant says the Defendant has not properly completed

the age assessment process in the first place. As to whether the age assessment process has been completed, it must be said, and Ms Gidda’s argument for the Claimant appears on the face of the documents before the Court to be a powerful one. One only has to read the age brief enquiry assessment within this case to see the conclusion within that document that the Claimant’s age as stated is “provisionally” not accepted and that the Defendant did not carry out a so- called “minded to” session, in other words putting to the Claimant any alleged inconsistencies or matters going to credibility upon which he was invited to comment.

10. The reason for that is stated to be this: “There was no minded session as (RT) had agreed to ring his father and request for his Tazkira, having effectively any document with which an Afghanistan may prove or may seek to support somebody’s age. Thereafter, we will go back and complete the BE.” BE means brief enquiry.

11. That, one might think, is powerful evidence that the brief enquiry document simply leaves the age assessment process incomplete. The document goes on to say: “Outcome decision. Do you consider this person to be under the age of 18? No or ongoing enquiries.” 12. There is no answer to the question as to whether the Defendant believes the Claimant to be under the age of 18, still less what age the Defendant believes the Claimant to be. Pausing there for a moment, I raised with Ms Fisher the possibility that I might make an order essentially aimed at requiring the Defendant to complete what seems to be an incomplete age assessment by at the very least answering the question: “Do you consider this person to be under the age of 18?” Page 3 of 11 13. I might further ask them to state what age they believe him to be. That is not at all an unusual opinion for social workers to express within an age brief enquiry form of this nature from my experience of such cases. Ms Fisher identified problems with this proposed course of action. Most particularly by all accounts a new social worker has been engaged who will be likely to deal with this case. If the Claimant is successful in his application for interim relief, he is likely to have other contact with social workers and/or other employees of the Defendant or its agents which may mean that further assessments or judgments as to his age take place. In any event, it is not clear that those who completed this age brief enquiry form would be available to provide answers to those questions. I accept that those are arguments against me making an order along the lines that I was suggesting, and on balance I consider that not to be the appropriate way forward.

14. Returning to the Claimant’s position, the Claimant is concerned that the failure of the Defendant to complete the process puts the Upper Tribunal in a difficult position in itself carrying out the judgment as to the Claimant’s age. I see some force in that, though I anticipate that the processes of the Upper Tribunal and orders as to disclosure and the such like might appropriately be adapted in a case such as this, so that the tribunal ensured that it had in front of it all relevant material to make a fact finding decision.

15. As against the Claimant’s position, the Defendant says that if I am minded to grant permission, and therefore as the ultimate target of this application for permission to bring judicial review and for relief in such an application, since the ultimate target is the Claimant’s age, and since the authorities support the contention that where a young person’s age is in dispute for these purposes, the Court needs to exercise the fact finding role for which purpose cases such as this are typically referred to the Upper Tribunal, then such a referral should take place here.

16. My attention has been drawn for slightly different reasons to the judgment of the Court of Appeal in Crown on the application of R (SB) v Kensington and Chelsea [2023] EWCA Civ 924. I accept the underlying proposition that the Court must keep its eye on what the application is ultimately about, which is not procedural propriety but rather the age of the Claimant.

17. The Defendant’s position is that this brief enquiry had relevance to a completed age assessment but was only part of the picture. This is asserted within the witness statement of Ms Gregory upon whom the Defendant relies. I have some concerns about what is said within Ms Gregory’s statement, in particular at paragraph 7 where she says: “The Defendant relies upon the Home Office’s assessment as well as its own.” 18. I am unclear as to what assessment is here being relied on. But in any event, the Defendant before me takes the position that it has come to a conclusion and that its conclusion is that the Defendant is not a child. In my judgment, having regard to the judgment of the Court of Appeal in SB, having regard to the need to ensure that judicial resources are used efficiently, as well as having regard to the broader need to ensure that the resources o society are used efficiently, I ought to take the Defendant Page 4 of 11 at its word and accept that the Defendant’s concluded position is that the Claimant is over 18.

19. It follows that, in accordance with the usual practice, I ought on the facts of this case to determine the case on the basis that if permission is granted, the tribunal will need to consider the issue of prior fact as to the Claimants age. I accept that that puts the issue of interim relief into a slightly different context. The Claimant understandably and in my judgment justifiably on the basis of the wording of the brief enquiry, took the view that the completed age assessment had not yet been received, and therefore it was argued on his behalf that the duties that were engaged in this case were those duties that fall upon the Local Authority that has not carried out an age assessment.

20. The authorities argue powerfully in those circumstances for the existence of a duty to treat the young person as being under the age of 18 until the age assessment is carried out. On the other hand for the reasons I have given, I consider that I should treat the Claimant’s age as having been determined as being over the age of 18. In those circumstances, the Claimant’s burden is to show an arguable case that the age assessment is not compliant with relevant guidance in such a manner that the Court would consider the granting permission, and thereafter to consider the issue of interim relief in the light of the usual issues which I shall address in a moment. 21.

22. In my judgment in reality, that is no greater other than for the Claimant than would be the burden if an age assessment had not been carried out at all. This is clearly an age assessment that does not comply with the guidance given in the case of R (B) v London Borough of Merton [2003] EWHC 1689, and which has been considered on many occasions by many judges, summarised and analysed in different ways, but perhaps most helpfully dealt with by Thornton J in the case of AB v Kent County Council [2020] EWHC 109 (Admin), where the High Court judge considered in some detail the implication of Merton and other authorities as to the proper performance of an age assessment. It is common ground that the particular age assessment needs to reflect the particular circumstances of the case. It is common ground that demeanour or appearance are notoriously unreliable and can only be the sole determinant of a person’s age in the exceptional and most clearcut of cases. It is common ground that a person subject to an age assessment should be given the opportunity to explain any apparent inconsistencies in their account, or anything which is likely to result in adverse credibility findings. It is common ground that the authority carrying out the age assessment must give adequate reasons for its conclusion.

23. This age assessment comes only to one conclusion which is that the Claimant’s asserted age is not accepted, but thereafter fails to conclude what his true age is. It fails to carry out a so-called minded to session for reasons that I have indicated already that no doubt made sense at the time, but which clearly called for a later minded to session before the conclusion being reached, and it fails, other than by the reader picking out the parts of the age assessment that the reader wishes to do so, to state the grounds upon which the Claimant’s account of being rejected.

24. For all of those reasons, I am satisfied that this age assessment is not one which is compliant with the relevant standards, and was one which is liable to be subject to the grant of permission for judicial review, and consequent to referral to the Upper Page 5 of 11 Tribunal for a Fact Finding Hearing. Ms Fisher makes the point that the Court may be persuaded that notwithstanding procedural failings, even substantial procedural failings, the case that the Claimant is actually under the age of 18 is so thin that permission should not be granted. I will deal with that issue when I deal with issues as to interim relief, to which I now turn.

25. It is common ground that the test for interim relief is the test in American Cyanamid v Ethicon [1975] AC 396 case. Essentially, first of all does the Claimant show an arguable case for the grant of permission, and thereafter where does the so-called balance of convenience, or more commonly particularly in the Administrative Court and increasingly frequently in the Commercial Court as well, the balance of justice, lie?

26. There has been some argument as to whether there is an enhanced threshold test. Ms Fisher has agreed and conceded rightly in my judgment that there is no authority for an enhanced threshold test, simply because this is an application for mandatory relief in an age assessment case.

27. As to the balance of justice, I am in this case greatly assisted by the focussed arguments of both Counsel on the issues that arise in this case. I bear in mind in particular the judgment of Fordham J in R (KRA) v Cheshire East Council [2024] EWHC 575 (Admin), which although case specific, includes a helpful review of other decisions on the same issue, as well as an analysis on the facts of that case of particularly relevant factors to the exercise of the balance of justice. Fordham J did not expressly refer to the case of the R (MAR) v Ealing London Borough Council [2016] EWHC 3645, a decision in which Ouseley J pointed to the potential risks of somebody over the age of 18 being treated as a child, as balanced against the risks of somebody under the age of 18 bring treated as an adult, saying at paragraph 1.11. He concluded on this issue “…the risks associated with having to accommodate someone who is an adult with children are far more severe and troubling than the other way round where the individual is, even on his case, within four months of becoming an adult, has no other vulnerabilities, is a confident and capable person who has shown the resources necessary to travel unaccompanied at least from Libya through Italy and France, avoiding any stopping or fingerprinting, and getting himself into the United Kingdom illegally. I have no doubt, before I turn to the strength

of the case, that the balance of convenience lies entirely in favour of his being accommodated as an adult.” 28. Ouseley J did not refer to a document called Age Assessment Guidance used by the Association of Directors of Children’s Services, a document which is frequently referred to in such cases as this for the important reason that it is produced by people who are professionally involved in dealing with young people, and that it close to its conclusion states as follows: “In many cases it will not be possible to know definitively the age of the child or young person with whom you are working. Where there is doubt about whether or not the young person is a child, the dangers inherent in treating a child as an adult are in almost all Page 6 of 11 cases, far greater than the dangers of taking a young adult into your care.” 29. That is a comment made by those with appropriate experience of the issues that arise and is one that I bear in mind in this case, as Fordham J bore in mind in the case of KRA.

30. I consider it convenient and helpful that Ms Fisher on behalf of the Defendant addressed the balance of convenience by looking at eight factors. Those factors overlap with the factors considered by Fordham J, and provide it seems to me a useful framework for looking at this case.

31. The first issue is as to the prospects of success of the Claimant ultimately showing he is under the age of 18. As I have indicated, in SB v Kensington and Chelsea the Court of Appeal emphasised the importance of the Court keeping its eye on the ultimate issue within the case. However bad an age assessment is, if in fact it has come to the correct conclusion, the Court should not be so much a slave to procedural propriety as to grant interim relief to somebody whom ultimately is bound not to succeed in their argument that they are under the age of 18.

32. That is consistent both with longstanding authority and indeed now statutory provision that reminds the Administrative Court of the undesirability of making orders which would make no difference to the ultimate position in the case. If the Court were sure that the Claimant would not establish that he was under the age of 18, then almost any procedural impropriety would not be sufficient to persuade the Court that an order of interim relief ought to be made.

33. On the facts of this case, I have looked with some care at the basis upon which that argument is put. The social workers who carried out the age assessment made detailed notes about physical appearance, some of which are clearly relevant to the arguments which are in issue in this case. The Claimant is described as having a demeanour that he is confident. He is described as being assertive. It is undoubtedly the case that those kinds of demeanour behavioural type features may be of some assistance, but I bear in mind the caution that is repeatedly stated in the authorities about deciding cases on appearance and on the basis of demeanour.

34. That it seems to me is only one factor to be borne in mind within a case where, as Ms Gidda reminds me, there is a substantial failing in the procedure for the age assessment. My attention is drawn to the fact that it is alleged the Claimant was inconsistent in various dates and various features of his account to those carrying out the age assessment and it is suggested, possibly inconsistencies between that and the Home Office assessment.

35. To some extent Ms Fisher has had to concede that not all of the alleged or apparent inconsistencies in the Claimant’s case can necessarily be made out in this case. I see force in the point made by Ms Gidda for the Claimant that when one looks with care at the inconsistencies that are alleged, these may well be capable of being explained by some misunderstanding. Indeed, it seems to me that when one looks at the questions and answers as set out within the age brief enquiry form, it is quite possible that there were misunderstandings as to what was being asked by the adults, what the Page 7 of 11 Claimant was replying, and/or what the Claimant meant by his reply to the question as asked.

36. A further issue in this case is that as I touched upon earlier during the interview, the Claimant was asked to produce his Tazkira. The original of the Tazkira appears on the material before the Court to have been sent to him, but it has not arrived. The Claimant has no more than a photocopy of what he says is a Tazkira. That document provides some support for the assertion that he is 13. It includes the following statement: “According to his facial features, is 13 in 1399.” that is to say 2020 in the Julian calendar.

37. Of course that comment itself is comment about appearance which itself may be unreliable, but it clearly provides some support for the Claimant’s position that he is in fact under the age of 18. Balanced against that, the Defendant points out he has not actually produced the original Tazkira and it has been unable to establish whether the document being provided is genuine and genuinely says what it is asserted to say in the case.

38. It is not the Defendant’s fault that it is has not got the Tazkira before it. Equally however on the face of the material before me, the Claimant has done what he can to get it, so that is a somewhat neutral factor in any assessment of the prospects of success within this case.

39. The second issue raised by Ms Fisher is that the Claimant is only months away from being 18. The Defendant’s core duties would be short lived and as a former relevant child, I think the phrase is within the Children Act, any duties that arose after his the age of 18 would be attenuated. It is true that the duties are less when the young person is over the age of 18 than they are before the age of 18, but they are in my experience of reviewing those duties, relevant and important duties for the young person who is aged over the age of 18.

40. In any event as Ms Gidda rightly says, it is some months before the Claimant is aged 18 and it could not be said that there was no benefit in dealing with him housed as a young person or child until then if he in fact is a child. These points were considered by Fordham J on the particular facts of his case in the case of KRA. He emphasises the need to bear in mind that duties continue beyond the age of 18 on the part of local authorities and as I indicate, Ms Fisher does not shy away from the fact that there are some duties, albeit less duties.

41. Third, it is said that the Claimant will not be destitute or homeless if interim relief is refused, that it is correct as an asylum seeker he will continue to be housed by the Home Office. On the other hand, the Home Office’s duties as to housing asylum seekers are much less and much more attenuated than the Local Authority’s duties in respect of somebody who is, or who is deemed to be under the age of 18, and therefore the provision would be fairly different.

42. Fourth, and this is really for the purposes of the way I have analysed things, a matter that I have dealt with already, it is drawn to my attention that the guidance upon Page 8 of 11 which we are asked to make advice to the position when an age assessment is being carried out, but the mere fact of procedural deficiencies should not make a difference to the granting of interim relief if in fact the Court is satisfied that the young person is not a child or has no prospects of showing that he is under the age of 18.

43. Fifth, it is said that if the age of 2001 on which reliance is placed is correct, the Claimant is already 23, and so this is not a borderline case. As regards to the Defendant’s position, I accept that that may be so. Clearly, the Claimant says he is under 18 and one returns to that argument.

44. Sixth, my attention is drawn to the balance to which I have touched already, on the risk of refusing relief to somebody who is actually under 18 as opposed to granting relief to someone who is over 18.

45. It is somewhat difficult to reach detailed conclusions in any particular case, but I accept that the granting of relief to somebody who is aged over the age of 18 does provide a potential challenge for the Local Authority. If the Local Authority believes he is over the age of 18 but is required to treat him as being under the age of 18, it of course will have to bear in mind its own belief as to his age when determining how to accommodate him. They would still be required to discharge their duties under the Children Act, but they would of course have to have regard to those with whom he is placed.

46. The seventh issue, resources, overlap with the sixth point. Ms Gidda says that there is precious little evidence before the Court as to resources issues, but I have no difficulty at all in concluding in this case as I have in others that the very fact of the duties that are placed on the Local Authority to deal with somebody under the age of 18 under the Children Act 1989 mean that some resources are diverted if interim relief along the lines it is sought is in fact granted. Indeed as I said in dealing with the previous issue, in some ways the position may be particularly difficult for the Local Authority who itself suspects the person to be over the age of 18, possibly well over the age of 18, as to how exactly they are supposed to deal with that.

47. I do not have any difficulty in concluding that the making of an order in these circumstances has real resource issues for a local authority. Few of our local authorities are so large as to be able to come before the Court and say that they readily have accommodation to deal with somebody who might be under the age of 18 but might be over the age of 18, and they have no doubt to think carefully about appropriate placement.

48. That said, and to this extent I feed in the evidence of the Claimant himself within his witness statement, if he is under the age of 18 he is clearly accommodated somewhere at the moment that is unsuitable. He lives in the Richmond Hotel in Hatton Gardens in Liverpool. He says he thinks there are 100 to 200 other adults there. He is seemingly accommodated sharing the room with somebody who is also subject to a challenge as to their age which may be a very good placing in the particular room, but as Ms Gidda points out that person themselves may be over the age of 18.

49. More significantly, on his evidence there are other adults within the Richmond Hotel who drink, smoke, take drugs, and he finds the situation distressing and scary. I Page 9 of 11 accept that there is a real risk to the wellbeing of somebody under the age of 18 being placed in accommodation with others who are over the age of 18, particularly if there are a large number of such other people.

50. That in turns feed neatly into the eighth of the issues raised by Ms Fisher, which is the Claimant’s own ability to live independently and to manage what often in modern parlance is called resilience. At page 133 in the bundle before me, there is adduced a document from the Home Office which includes at paragraph 3.4 a section headed “Please outline your journey to the UK.” Although as Ms Fisher points out there may be some slight factual inconsistency, the evidence points to the fact that he has been people smuggled, but people smuggled through several countries over the period in total of about one year before he arrived in the United Kingdon.

51. He travelled on foot, by train, by boat, by car. He has survived all of that. Surely it is natural to think he will have learnt resilience if he did not have it already, and that somebody who had been through all that and is not for example being presented to the Court as somebody with particular vulnerability and needs is somebody who will be able to bear living in adult accommodation, even if he is marginally under the age of 18.

52. That is an argument that can be put in various ways. It is one about which I have in reality, considerable caution. Indeed, I can readily accept the case that many people who have experienced the kind of smuggling and migration experiences that on the face of it, this Claimant has experienced, have experienced much trauma and have many consequences of that trauma. I know nothing about the individual, but it would be dangerous for me to assume that just because he does not present for example with mental health problems at this point, that that means that he is somebody who has some resilience to continue to bear without any harm coming to him, the experience of living with adults.

53. Where then does all of this take me? First of all on the question of the grant of permission, I have indicated the shortcomings in this age assessment. Indeed, I accept that argument that it is difficult to call this a completed an age assessment at all. I only do so because the Defendant chooses to do so. 54.

55. In my judgment, the age assessment is very significantly lacking in important detail in terms of the “minded to” process, the opportunity to give the Claimant the chance to comment on adverse matters, and also the failure to give clear conclusions and to reach a clear statement as to the Claimant’s age. That powerfully argues in favour of the grant of permission. If I were nevertheless persuaded on compelling material that the Claimant was over the age of 18 and had no prospect of showing that he was under the age of 18, I would not grant permission for reasons I have touched upon already. But I am not so persuaded, and in those circumstances I will grant permission, and in due course order transfer to the Upper Tribunal for a Fact Finding Hearing. Page 10 of 11 56. As then to interim relief, the fact of my granting permission clearly gets the Claimant over the initial threshold, and this is not a case in which I can say that the outcome is so obvious that I should not have regard to the other criteria in relation to the granting of interim relief.

57. The material before me, whilst not suggesting that the Claimant is at huge risk if left within adult accommodation, shows it seems to me risks to his wellbeing. Whilst I accept the resource implications of me making an order in this case, I do not have detailed information to reach the conclusion as to precisely what those resource implications are, and ultimately it must be the case that the Local Authority having statutory duties upon it has to find the means to discharge those statutory duties.

58. In this case, having regard to the guidance on age assessment published by the Association of Directors of Children’s Services, I reach the conclusion that the risks of not granting interim relief to the Claimant exceed the harm to the Defendant and the public interest if I grant relief when I should not have granted relief, and for those reasons I will grant the interim relief sought, pending the determination of the Tribunal. This Transcript has been approved by the Judge. The Transcription Agency hereby certifies that the above is an accurate and complete recording of the proceedings or part thereof. The Transcription Agency, 24-28 High Street, Hythe, Kent, CT21 5AT Tel: 01303 230038 Email: court@thetranscriptionagency.com Page 11 of 11