An end to legal limbo for age disputed young people in need of accommodation and support?

This morning, the High Court has answered an important, previously undecided legal question: whether a local authority children's services department is obliged to provide accommodation and support to a putative unaccompanied minor (i.e. an asylum seeking individual who claims to be a child and who is unaccompanied) pending a lawful age assessment: R (S, by his litigation friend Francesco Jeff) v. LB of Croydon, Equality and Human Rights Commission intervening [2017] EWHC 265 (Admin). The ruling is now available on Bailii, here. 

Mr Justice Lavender has ruled that the benefit of the doubt must be given to the age disputed young person, and that it is unlawful for the local authority to refuse to comply with its duties under ss. 17 and 20, Children Act 1989 pending the determination of the age assessment.  

The claim was brought by a Refugee Council client from Iraq, 'S', represented by Bhatia Best. S claims to be a child of 16, but his age has not yet been assessed by Croydon due to a number of factors, including concerns about his physical and mental health.

Statutory Guidance

Lavender J has held that Croydon is obliged to treat age disputed individuals, such as S, as children by virtue of statutory guidance issued in July 2014 by the Secretary of State, Care for unaccompanied and trafficked children (unless there are cogent reasons for departing from the guidance, and there were none here).  This is because paragraph 7 of that guidance defines a child as follows:

“Child: anyone who has not yet reached their 18th birthday. ‘Children’ therefore means ‘children and young people under the age of 18’ throughout this guidance. Note that, where the person’s age is in doubt, they must be treated as a child unless, and until, a full age assessment shows the person to be an adult.”

Non-Statutory Guidance

In deciding whether there was a cogent reason for departing from the statutory guidance, Lavender J considered a piece of non-statutory guidance, Age Assessment Guidance published in October 2015 by the Association of Directors of Children’s Services (“ADCS”), to be helpful, given the expertise of its authors and the fact that a senior member of Croydon children's services was involved in its development.  Pages 10-11 of the ADCS guidance address accommodation, stating:

"Other than in exceptional circumstances, children and young people will be looked after under Section 20 of the Children Act 1989 whilst the age assessment process continues... Bed and breakfast accommodation is not suitable for any child under the age of 18, even on an emergency basis.”

No Cogent Reason

Lavender J has concluded that Croydon had no sufficient reason for failing to treat S as a child unless and until a lawful age assessment determines otherwise. While the presence of Lunar House and Brigstock House in Croydon "may impose a particular burden on [Croydon's] resources," this is is not a sufficient reason and in any event there was no adequate supporting evidence explaining why this could be said to justify the departure from the guidance. Similarly, Croydon's argument that the Home Office considered S to be an adult was roundly rejected; having decided to conduct an age assessment, Croydon cannot then rely upon a Home Office non-expert, initial determination with which it disagrees.

Appeal

Croydon sought permission to appeal, but this was refused by Lavender J this morning.

Conclusion

The issue arising in this case is a discrete, short one, but of great significance to S and to other age disputed asylum seekers, during the limbo period before the age assessment process is completed. This is a particularly vulnerable group, as the UN High Commissioner for Refugees has recognised, describing their "extreme vulnerability” and referring to them as amongst the most vulnerable individuals within an already vulnerable asylum-seeking community.

An unaccompanied child being denied child-appropriate accommodation, appropriate services and / or access to education, even on a temporary basis pending the conducting of an age assessment, raises very serious concerns.  The High Court has now put beyond doubt that Croydon was wrong to presume that S was an adult; instead, the benefit of the doubt should be given to S and other age disputed asylum seekers.

Caoilfhionn Gallagher QC acted for the Equality and Human Rights Commission which intervened in this case.