Judge refuses permission for judicial review of age assessment, finding it was carried out in accordance with Welsh Government toolkit

The High Court has refused permission to challenge by way of judicial review an age assessment carried out by social workers employed by a Welsh council, which concluded that the claimant was an adult.

In ZHB, R (On the Application Of) v The City And County of Cardiff Council [2024], His Honour Judge Jarman concluded that the age assessment was carried out “in accordance with the Social Services and Well Being (Wales) Act 2014 and the Welsh Government toolkit”.

The judge said the claimant arrived in the UK in October 2022 whereupon the Home Office recorded his date of birth as 20/10/2001, although he claimed to be under the age of 18 at the time.

The claimant was accommodated in adult accommodation in Conwy, North Wales, but continued to maintain that he was a child.

He was assessed by social workers in Conwy and found to be an adult. He was then transferred to adult accommodation in Cardiff where he was again assessed by social workers as an adult.

The judge said: “The claimant had legal representation in respect of his immigration and asylum issues but not during the age assessment. However, the assessor did seek information from those representatives as part of the age assessment process. He had an independent advocate from the National Youth Advocacy Service (NYAS) throughout the process.”

The judge added that the claimant was “given opportunities” to have private discussions with NYAS and to ask any questions, and was told during the process that if he was unhappy with the process, he had the right to discuss this with his legal representative.

Permission to challenge the age assessment was refused on the papers by HHJ Lambert.

HHJ Jarman said: “He had regard to R (A) v Croydon LBC [2009] UKSC 8, where the Supreme Court held that whether someone is a child on a particular date is a question of fact to be determined by the court, rather than on conventional public law grounds. He determined that the claimant's factual case on age, taken at its highest, could not properly succeed in a contested factual hearing.”

Counsel for the claimant submitted the following grounds in response:

1. The court had overlooked or ignored the fact that the claim was based on Convention grounds; as such, it was immaterial if the impugned assessment withstood scrutiny at common law, and it remained, whether the test for permission was met for the grounds which allegde that the impugned assessment was incompatible with the claimant's Convention rights;
2. In the decision whether the claimant's factual case on age could properly succeed at trial, the court had overlooked or ignored the fact that the claimant did not benefit from any of the minimum procedural guarantees inherent in the principle of the presumption of minor age under Article 8 of the Convention as it applied to the claimant in the assessment impugned;
3. In the assessment at common law, whether the claimant's factual case, taken at its highest, could properly succeed in a contested factual hearing, the court failed to assess the evidence and the materials for itself, and in place of its own assessment of the claimant's factual case, the court gave as its reason for refusing permission instead, a finding that the impugned assessment was not bad for public law error.

Counsel for the local authority referred to the following extracts of a toolkit published by the Welsh Government as to what support a local authority is expected to provide for children/young people around the age assessment process:

“When a child/young person is undergoing an age assessment, case law has determined that they must be afforded the opportunity to have an Appropriate Adult present at the age assessment interview(s)…

“Children/young people in Wales do not currently have a system of Guardianship or the support of the Refugee Children Panel. It is essential then, if the child/young person is to be afforded the same United Nations Convention on the Rights of the Child (UNCRC) rights as other looked after children in Wales, the social worker makes a referral to advocacy services and the advocate uses interpretation services, if the child/young person requires them. For statutory advocacy services in Wales, see NYAS."

It was submitted that the council complied with the toolkit.

The judge said: “During the hearing Mr Bedford [for the claimant] conceded that none of the UK case law on age assessment deals with the rights of the person being assessed under the Human Rights Act 1998. He said that this had been missed. In reply he referred to the legal framework in Wales and to the Social Services and Well Being (Wales) Act 2014 (the 2014 Act).

“[…] Section 7 of the 2014 Act is headed "Other overarching duties, UN Principles and Convention. Subsection (2) refers to section 6(1) (which so far as material applies to individuals who may have a need for care and support and looked after children) and provides:

"A person exercising functions under this Act in relation to a child falling within section 6(1)(a), (b) or (c) must have due regard to Part 1 of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 ("the Convention")”.

The judge continued: “In Mr Bedford's additional skeleton argument, he accepts that the defendant's social workers referred to the Welsh Government toolkit. He refers to authorities dealing with the meaning of "due regard" in various contexts, including R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at [27] and R (Friends of the Earth) v Secretary of State for Environment, Food and Rural Affairs [2024] EWHC 2707 (Admin) at [25].

“He submits that the defendant ought to have considered that the minimum procedural safeguard for the claimant in the conduct of the age assessment was the appointment of a legal representative or guardian, access to a lawyer and informed participation.”

Refusing permission for judicial review, His Honour Judge Jarman concluded: “Notwithstanding the detailed submissions of Mr Bedford on the 1998 Act and the UNCRC, in my judgment the age assessment under challenge was carried out in accordance with the 2014 Act and the Welsh Government toolkit.

“The claimant had legal representation in respect of his asylum claim and an appropriate adult in respect of the age assessment. I am not persuaded that it is arguable that either the UNCRC or the 1998 Act requires any more than what was done in this case in the context of Welsh legislation and guidance.”

He continued: “The question remains whether the material before me raises a factual case which, taken at its highest, could properly succeed in a contested factual hearing. In my judgment it does not, and permission is refused.”

Lottie Winson