QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
SITTING AS A DEPUTY HIGH COURT JUDGE
| The Queen on the application of
(by her litigation friend, Francesco Jeff of the Refugee Council)
|- and -
Sunderland City Council
Secretary of State for the Home Department
Joshua Dubin (instructed by Together for Children Sunderland) for the First Defendant
Sian Davies (instructed by Stockton Borough Council Legal Services) for the Second Defendant
Nicholas Ostrowski (instructed by the Government Legal Department) for the Interested Party
Hearing dates: 13 November 2019
Crown Copyright ©
Dan Squires QC sitting as a Deputy High Court Judge:
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 in those circumstances, and where neither Sunderland nor the Home Office were willing or able to disclose the relevant age assessment, it was incumbent on Stockton to determine, for itself, whether the Claimant was a child in its area, and whether she was in need.
i) The Claimant explains in the 1 November 2019 statement that, after she arrived in the UK, she was held in the house of a man who knew her family, that she left after a few months and knocked on a nearby door seeking help. The woman who answered called the police. The Claimant states she was then taken to a police station and later interviewed by two women. That is identical to the explanation set out in P's age assessment of how she came to the attention of the police and subsequently came to be interviewed by two female social workers from TfCS.
ii) The Claimant's 1 November 2019 statement also deals with the various discrepancies identified by Sunderland between her witness statement of 9 May 2019, and what was said by P in her age assessment interview. The Claimant explained that in her age assessment interview she lied to the interviewers about how she came to the UK and in relation to whether her family members were alive. She says she did so because she was worried that if she told the truth she would be returned to Vietnam. In her 1 November 2019 statement she explains that she told the women interviewing her that she came to the UK after meeting a man who "gave me cake and kidnapped me", rather than the true account, set out in her 9 May 2019 statement, of being brought by agents.
iii) The account the Claimant now gives of what she said in her age assessment interview is identical to the account recorded in P's age assessment interview in terms of how she came to the UK. P is also recorded as stating in her interview that she came to the UK after being "kidnapped". P stated that "she was sitting in the park, somebody came up to her and gave her a piece of cake she said that she ate it and did not know what happened."
iv) The Claimant says in the 1 November 2019 statement that she told the women interviewing her that, before she left for the UK, she sold lottery tickets in South Vietnam. That too is recorded as having been stated by P during her age assessment interview.
v) The Claimant says in her 1 November 2019 statement that the details recorded in the age assessment of P are "very similar" to what the Claimant recalls telling the women conducting her age assessment. The Claimant also confirms in the 1 November 2019 statement that the physical description of P is similar to her, and, as indicated above, the date of birth recorded as having been given by P is that given by the Claimant.
Material legislation and policy
Children Act 1989 ("CA 1989")
"It shall be a general duty of every Local Authority,
a) to safeguard and promote the welfare of children within their area who are in need; and
b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs."
"For the purpose of this Part a child shall be taken to be in need if –
a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a Local Authority under this Part;
b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
c) he is disabled…"
"(1) Where it appears to a local authority that any authority mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority specifying the action in question.
(2) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.
(3) The authorities are— (a) any local authority"
"1. Unaccompanied migrant children and child victims of modern slavery, including trafficking, can be some of the most vulnerable children in the country. Unaccompanied children are alone, in an unfamiliar country and may be surrounded by people unable to speak their first language. Modern slavery includes human trafficking, slavery, servitude and forced or compulsory labour. Exploitation takes a number of forms, including sexual exploitation, forced labour, forced criminality, begging, organ harvesting and domestic servitude and victims may come from all walks of life.
2. Unaccompanied children are likely to be uncertain or unaware of their rights and whom they should trust. They are at increased risk of going missing, often leaving the care of those who would protect them to return to traffickers who will continue their exploitation. All groups may have experienced emotional trauma in their country of birth, on their journey to the UK or through their treatment by adults in the UK.
3. Local authorities have a duty to protect and support these highly vulnerable children. Because of the circumstances they have faced, unaccompanied migrant children and child victims of modern slavery, including trafficking, often have complex needs in addition to those faced by looked after children more generally. The support required to address these needs must begin as soon as the child is referred to the local authority or is found in the local authority area. It will be most effective where this support is provided through a stable, continuous relationship with the child."
"35. Many unaccompanied and trafficked children arrive in the UK without documentation or with forged or counterfeit documents. Where the age of a person is uncertain and there are reasons to believe they are a child, that person is presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with section 51 of the Modern Slavery Act 2015. Where an age assessment is required, local authorities must adhere to standards established within case law. Age assessments should only be carried out where there is reason to doubt that the individual is the age they claim. Age assessments should not be a routine part of a local authority's assessment of unaccompanied or trafficked children. Further advice and practice guidance can be found in the Age Assessment Guidance, published by the Association of Directors of Children's Services (ADCS) in October 2015. It is also important to note that an ADCS – Home Office information sharing protocol has been produced."
"At the beginning of the [age assessment] interview, it is good practice to explain to the child or young person how the information provided in the interview will be recorded and how the findings of the assessment will be shared with the Home Office.
The assessing social workers should have a clear plan about recording information. Records do not have to be verbatim, but should be sufficiently comprehensive to include all significant information. You should record whether and how the young person has indicated they understand the purpose of the assessment, the interpreter and the role of the appropriate adult. You should raise issues concerning accuracy or consistency as soon as possible so that clarification can be sought and noted by you and the appropriate adult.
You should advise the child or young person that after the conclusion of the assessment, they will be given the outcome of the age assessment in writing, including information about how they may challenge the decision. If the child or young person and their solicitor make a request for a copy of the full age assessment, then the local authority should comply with this request…"
"Some general principles for sharing the results of an age assessment are as follows:
- The child or young person being age assessed should be informed of the conclusion, face-to-face, at the earliest possible opportunity. This should be done in a manner which is in accordance with their assessed age and maturity and should also be provided in writing.
- The child or young person should be advised both verbally and in writing that they may be able to challenge the decision and how to seek further advice regarding their assessment. In most cases, there will be a three month time limit to make an application for a judicial review.
- You should keep all your hand written notes, and write up the outcome of the assessment regardless of the conclusion.
- It is recommended that the child or young person sign an acknowledgement (though not necessarily acceptance) of receiving the conclusion of the age assessment.
- The child or young person should be given a full copy of the age assessment. This should be done within a reasonable amount of time upon completion of the assessment. Delay may seriously prejudice the child or young person's ability to understand the decision, to know whether or not they can challenge it, and to access appropriate support. The child or young person should be made aware that this document contains their personal information and should be looked after very carefully.
The assessment belongs to the child or young person, so they should decide with whom the assessment is shared. If the child or young person and their solicitor make a request for a copy of the full age assessment, then the Local Authority should comply with that request. After the assessment has concluded, you should confirm with the Home Office that they are treating the child or young person at the assessed age.
If the Home Office has disputed the child or young person's age, then they will need to know your decision promptly. This should be shared through the agreed 'Model Information Sharing Pro Forma – Outcome of Age Assessment'. The Home Office should not be provided with the complete assessment, as per the Association of Directors of Children's Services (ADCS) / Home Office Joint Working Guidance. It is very important that the Home Office know what age you have assessed the child or young person to be. In almost all circumstances the Home Office will accept your decision on age and your decision is likely to have significant consequences for the young person's immigration status. Where the Home Office has concerns about the decision they will discuss these with you. A child or young person should always give their written consent prior to you sharing their information with any other individual, unless you are ordered by the court to do so."
"Children and young people may struggle to understand the concept of confidentiality, and it is important that your explanation of confidentiality is tailored to their level of understanding. Confidentiality must be explained to all children and young people undergoing an age assessment. Unlike other interviews with children and young people, the outcome of the interviews will usually be shared with a third party, namely the Home Office. The child or young person should be advised that the Home Office will only be provided with a brief summary of the age assessment and the reasons for the decision. The Home Office will not generally be provided with the full written assessment without the consent of the child or young person. There may be instances in which a child or young person challenges the outcome of an age assessment; in these cases, the full age assessment may also be provided to the court and so will be available to the Home Office.
Children and young people should be advised that their full age assessment will not be shared with anyone else unless they give their consent. They should be advised that their solicitors can receive a full copy of the completed age assessment if they provide their written consent to share this information.
It may be helpful to remind young people to keep any copies they hold of their age assessment safe.
In addition to clarifying the issue of who will have access to the age assessment, it is important for social workers to explain the other limits to confidentiality. The limits of confidentiality regarding safety concerns should be explained; this includes situations where the social worker is concerned that the child or young person is at risk of harming themselves, harming someone else, or someone harming them. In these instances, the child or young person's personal information may be shared for safety reasons."
"Disputes have arisen between local authorities about who is responsible for assessing the age of a child when he or she has been moved between two or more local authority areas. In the case of R (on the application of Liverpool City Council) v London Borough of Hillingdon & another the Court of Appeal held that after the young person had been released from Harmondsworth Immigration Removal Centre, the London Borough of Hillingdon should have conducted an age assessment and also a full assessment of his needs for the purposes of Section 20 of the Children Act 2004, even though the young person had previously been assessed by Liverpool.
However in R (on the application of A) v Leicester City Council and the London Borough of Hillingdon, a case in which the claimant child had moved from one authority's area to the other and there was no dispute about her age, HHJ Farmer QC held that concurrent duties were owed. The possibility that this could be the case in age assessment cases was raised but not resolved in R (on the application of Liverpool City Council) and also in the later case of The Queen on the application of HA v London Borough of Hillingdon and Secretary of State for the Home Department. Therefore, a local authority should conduct an age assessment for any child who comes to their attention where there is significant reason to doubt the age claimed even if the child has moved from another local authority area before an age assessment is conducted.
The Age Assessment Joint Working Guidance published by the Association of Directors of Children Services and the Home Office in April 2015 offers a process to follow when there is a dispute between local authorities. Local authorities may find it useful to consult this and agree between them which body will take responsibility, but this guidance is not statutory or case law and the courts may make a decision around responsibility for an assessment which does not fit within this guidance."
"6.2 Conflicting LA age assessments
LA responsibility is tied to geographical boundaries so it is possible that an age assessment may be sought from more than one LA. For example, where an asylum seeker moves to accommodation which is within a different LA boundary. In some cases the assessments may not be in agreement. LAs must work together, and with other agencies, and be sure they prioritise safeguarding the individual and adhere to the Children Act 1989 and Children Act 2004.
The following is intended to reduce unnecessary repetition of the assessment process:
Existing lawful age assessment
LAs have a duty to assess whether someone is a child is in need and may require an age assessment. When an LA is approached for an age assessment/it appears one may be required, it should check with the Home Office whether any previous assessment has been carried out by another LA.
If an assessment has previously been completed, it must be established whether this was conducted lawfully (usually shown by completion of the information sharing proforma). The LA must contact the other LA to request a copy of any previous age assessments.
If the Home Office has an existing lawful LA age assessment it must inform the newly-involved LA:
- that there is an existing lawful age assessment
- which LA carried out the assessment
- when the assessment was carried out
Existing potentially unlawful age assessment
If the documentation the Home Office has does not indicate the assessment has been completed in line with case law, the Home Office must:
- inform the newly-involved LA of this
- contact the original LA to get a completed age assessment proforma
If it becomes clear there is not enough evidence to show that an age assessment was completed in line with case law the Home Office must ask the LA for this information. If the LA cannot provide this, an age assessment which is in line with case law must be carried out. The LAs must collaborate and promptly agree which LA must take responsibility for conducting the age assessment."
Grounds of Challenge
Claim against Sunderland, the First Defendant
(i) Is the claim against Sunderland academic?
"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."
The House of Lords did not consider there was "good reason" to hear the appeal in ex p Salem and declined to do so. It is a notable footnote that the issue ultimately did reach the House of Lords a few years later in R v Secretary of State for the Home Department ex parte Anufrijeva  1 AC 604, and their Lordships determined the underlying issues in dispute in the appellant's favour.
(ii) Should the court determine other issues concerning Sunderland's conduct?
Claim against Stockton, the Second Defendant
The Claimant's current position
The position prior to disclosure of the 11/12 February 2019 age assessment