Age assessments under the Children Act 1989 (HJ (by her litigation friend) v Croydon LBC)

26 January 2021

Does a local authority have to assess a person’s needs under the Children Act 1989 when another local authority has found them to be an adult? The High Court found that Croydon should have assessed the needs of an asylum-seeker who claimed to be a child even though 6 days earlier Greenwich had assessed her to be an adult and she had not challenged that decision. Croydon argued that she should have challenged Greenwich’s age assessment rather than seek to require it to treat her as a child.

This case raised issues about which authority should be responsible for the age and needs assessment process (and any provision of support in the meantime) when the person concerned has moved from one authority’s area to another.

HJ (by her litigation friend) v Croydon LBC [2021] EWHC 66 (Admin)

What was the background?
Age assessment
On 15 January 2020 HJ, who is from Vietnam, was found by the police in a property in Greenwich, in a room locked from the outside. She was arrested on suspicion of illegal entry to the UK. She claimed to have entered by lorry in November 2019 and to have since worked in a nail bar without being paid. She told the police she was aged 15.

At the police station she was interviewed by two Greenwich social workers. She told them she was aged 16 but they found her to be an adult, estimating her to be in early 20s. The social workers described the purpose of the interview as being to establish if Greenwich owed a duty to her as a child or if an age assessment was required as the police had doubts about her age but the court accepted her account that she did not understand that her age was being assessed.

On the same day the Home Office gave her a date of birth that equated to her being 18 and released her on immigration bail, requiring her to report on 22 January 2020 to Lunar House in Croydon, which houses the principal Asylum Intake Unit for London and the South of England. It is not clear if the Home Office had a copy of Greenwich’s assessment.

Croydon becomes involved
On 17 January 2020 the Refugee Council, which has its main office in Croydon, referred her to Croydon Council, who refused to assess her needs. On 20 January 2020 she attended the council’s offices and again it refused to assess her. She stayed that night at the address in Greenwich she had been found at (as she had since 15 January). On 21 January 2020 she was at the Refugee Council’s office in Croydon, saying she could not return to that address, and her solicitors required the council to assess her needs and to accommodate her pending assessment. In reply the council relied on a pan-London protocol for local authorities concerning unaccompanied asylum-seeking children, which it subsequently accepted was irrelevant.

Later on 21 January 2020 the claim was issued against Croydon only, alleging unlawful failure to assess needs under the Children Act 1989 on that date (HJ did not seek a reassessment of her age and did not do so at trial) and the High Court ordered Croydon to support HJ pending an oral hearing on 6 February 2020.

On 22 January 2020 Croydon found out about Greenwich’s ‘abbreviated age assessment’ and from then on argued that it did not have to assess her needs because there was no duty to do so if she was an adult and if she was a child she should instead challenge and seek support from Greenwich. Croydon set this defence out in its summary of grounds and it was later addressed by HJ in an amended statement of grounds.

On 31 January 2020 HJ’s solicitors required Greenwich to withdraw its age assessment, agree to carry out a fresh one and to support her in the meantime, failing which an application would be made to join it as a defendant. Greenwich refused but no such application was made.

On 6 February 2020 the court gave HJ permission to proceed with her claim and on the application of Croydon joined Greenwich as an interested party.

On 14 April 2020 Croydon made a trafficking referral under the NRM procedure and on 16 October the Single Competent Authority notified the authority that there were reasonable grounds to conclude that HJ was a victim of modern slavery.

What did the court decide?

The court decided that Croydon had acted unlawfully in failing to carry out an assessment of HJ’s needs under the Children Act 1989 and that it had not been entitled to refuse to do so on the basis of Greenwich’s abbreviated age assessment.

The judge reviewed the line of authorities beginning in time with Stewart v Wandsworth [2001] EWHC 709 (Admin) about how a duty to assess a child’s needs is owed by the authority in whose area the child is present before then considering the remark made by Mr Justice Bean (now Lord Justice) in HA v Hillingdon [2012] EWHC 291 (Admin) that Parliament cannot have intended a simple geographical test to be applied otherwise a person dissatisfied with an age assessment could simply travel to another authority and demand to be reassessed. The judge distinguished that case solely on the basis he was concerned only with Croydon’s refusal to assess needs before it was aware of Greenwich’s age assessment.

The judge went on to find that even though it was decided at a time when it was believed that local authority age assessments could only be challenged on conventional public law principles (rather than on the facts), Liverpool v Hillingdon [2009] EWCA Civ 43 remained good authority for the proposition that a second authority in whose area a putative child is found can owe them a duty under section 20 of the Children Act 1989.

The judge next addressed Croydon’s argument that as an alternative to a claim against itself, HJ should have challenged (and could still challenge) Greenwich’s decision but he could not accept this, essentially because he considered its age assessment to be unlawful (Croydon said this was not necessarily or obviously so) and that Croydon could not therefore refuse to assess needs on the basis of an unlawful decision.

He noted additional arguments made by Croydon about the application of section 51 of the Modern Slavery Act 2015, which requires local authorities, pending an age assessment, to assume a person is a child if they have reasonable grounds to believe they have been trafficked and may be under 18, but considered he was not procedurally in a position to base his decision on the trafficking context.

The judge has, however, given Croydon permission to appeal on a number of grounds on the basis the case raises issues of sufficient importance for the Court of Appeal to consider and give guidance about.

What practical recommendations would you give to local authorities who are in conflict about who should deal with such cases on how to resolve issues without the need for judicial determination?

There is a growing problem about which of two authorities (and it could be more) should be responsible for the age assessment process (including for any re-assessment and for any claim for judicial review made by the person assessed), usually in respect of an asylum-seeker, when age has been assessed by one authority and they have then moved into the area of another, often because they have been found to be an adult as the result of an abbreviated assessment and have then been accommodated by NASS elsewhere.

This is compounded by the cost to an authority of defending a decision on age and the recent proliferation of abbreviated assessments. It had previously been generally recognised by authorities and, for that matter, by solicitors acting for claimants that if the initial authority has assessed age that assessment should be challenged rather than that a subsequent authority should again assess (if warranted) but this case may cause some to argue that the latter is solely responsible.

There is no legislation, protocol or clear guidance that helps. While the Joint Working Guidance agreed between the ADCS and the Home Office in April 2015 appears to assist, referring to a procedure intended to reduce unnecessary repetition of the assessment process and to how authorities must collaborate and promptly agree which of them must take responsibility for conducting an age assessment, this only applies on its wording where the Home Office instigates this, because it does not have enough evidence of a lawful assessment and, on being asked, the initial authority cannot provide it. In any event it depends on inter-authority co-operation, which can be very difficult to achieve.

Therefore, pending legislation (this issue could be tackled at the same time as the National Transfer Scheme is) - a national protocol between authorities (which anyway would not, of course, bind claimants), clear statutory guidance or a Court of Appeal judgment, the only way to resolve disputes between local authorities without the need for a judicial determination would be for them to seek a joint advice or arbitration, neither of which is particularly satisfactory given that the law is so unclear.

Case details
• Court: High Court – Queen’s Bench Division, Administrative Court
• Judge: Hugh Mercer QC, sitting as a Deputy High Court Judge
• Date of judgment: 18 January 2021

This article was first published by Lexis®PSL on 26 January 2021.

Tony Harrop-Griffiths represented Croydon LBC.