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High Court judge grants interim relief in age assessment dispute

A High Court judge has granted a claimant interim relief in a case where he wishes to challenge an age assessment conducted on behalf of Liverpool City Council.

The claimant (AS) is a national of Sierra Leone who said he left the country in 2015, eventually arriving in the UK in 2019. He has now claimed asylum.

Although at one stage the council accepted that AS was a child (on 11th March 2020 with effect from 27th September 2019), the more recent decision (on 23rd November) was that he was aged 20 or over.

AS claims to have been born on 1 January 2003. He seeks an order that the council should continue to accommodate and support him as a child in care.

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His application for interim relief was refused by Stacey J on the papers.

In AS, R (On the Application Of) v Liverpool City Council [2020] EWHC 3531 (Admin) Mr Justice Nicol said: “It will be seen that, even on the Claimant's case, he will turn 18 on 1st January 2021. However, Mr Paget, for the Defendant accepted that that did not make the application for judicial review moot.

“That is because, by Children Act 1989 s.23C, even once a child in care becomes an adult, he or she continues to be owed certain duties by the local authority as a former relevant child. The nature of the duties are different, though, and Mr Paget did rely on the short period before the Claimant becomes an adult as one of the relevant factors if the balance of convenience is reached.”

Mr Justice Nicol said his views as to AS’ application had wavered, but, on reflection, he came down firmly in favour of the grant of interim relief.

His reasons were as follow:

i) It is right that, in a few days time, the nature of the duties owed to the Claimant, even on his own case, will change. However, while the s.23C duties are more attenuated, they are real and important.

ii) It is also right that the Claimant would not be destitute, if I refused interim relief. He will be able to look to the Home Office for support and accommodation as an asylum-seeker. However, the nature of that support is very much less than if he was owed the duties of a former relevant child.

iii) I was not persuaded by Mr Paget's submissions that the position is different so far as the ADCS Guidance is concerned now that the Defendant has taken its decision. That is to ignore the particularly high level of scrutiny that the court must pay to such a decision. As Picken J. said in R (MVN) v London Borough of Greenwich [2015] EWHC 1942 (Admin), the role of the Court is akin to that of the local authority. That meant that the Court should follow the Merton guidelines and should also apply the benefit of the doubt principle.

iv) The further information regarding the Claimant's birth certificate is entitled to more credit that Mr Paget gave it. While the document which Ms Gibbons [the claimant’s solicitor] exhibits …. began as a photocopy of the birth certificate in the claim bundle, it is not identical to it. It has the additional notes, annotations and markings which I have detailed.

v) I have taken into account the wider public interest and the mandatory character of the order which the Claimant seeks, but they are not sufficient to lead me to conclude that interim relief should be refused.

The judge added: “The Claimant cannot be in a better position than if the Defendant had continued to accept his claimed date of birth. Accordingly, from 1st January 2021 he will be entitled to the duties he is owed under Children Act 1989 s.23C, but no more.

“I consider also that the interim relief which I grant should continue until the issue of permission is determined, or further order. In the absence of agreement, it will be for the Judge considering the application for permission to decide whether the interim relief should continue.”

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