Council not entitled to refuse to assess needs of Vietnamese woman on basis of preliminary age assessment by different authority, judge finds

A London borough was not entitled to refuse to assess the needs of young Vietnamese woman on the basis of a preliminary assessment of age carried out by another council, a Deputy High Court judge has ruled.

The case of HJ v London Borough of Croydon [2021] EWHC 66 (Admin) concerned HJ, the claimant, and the legality of Croydon’s refusal to assess her under its Children Act 1989 obligations.

HJ said that she left Vietnam in October 2019 as an unaccompanied child and arrived in the UK the following month.

She was discovered on 15 January 2020 by the police at an address in Greenwich where they were attending for an unconnected purpose. The room in which she slept had a padlock on the outside of the door and the only person in the residential unit was a single male in his twenties.

HJ described working on two occasions in a nail bar some distance from where he was found and receiving no payment.

She told police she was 15 years old with a date of birth of 17 January 2004. The police expressed the view in their report that she did not look 15 years old but rather late teens/early 20s. HJ was recorded by the police as “very upset by the police presence”.

The summary grounds put forward by the defendant, Croydon Council, asserted that the claimant must have understood that at a subsequent interview the Royal Borough of Greenwich’s social workers were assessing her age.

Hugh Mercer QC, sitting as a Deputy Judge of the High Court, said however that it would appear that the interview was a preliminary interview conducted at the police station when much information was missing.

The judge said that there was no suggestion that HJ was told her age was being assessed or indeed that adverse material was put to her. He added that on the evidence he could not proceed on the basis that HJ must have understood that her age was being assessed by social workers.

Judge Mercer noted two striking features of the social services interview:

1. HJ was frank about the fact that she had lied to the police about her age saying that she was born on 17 January 2004 when she told social services that the true date was 17 January 2003. The reason she gave for telling the police that she was 15 years old was that if she said she was younger the police would not hit her.
2. The absence of reference to the possibility that HJ might have been trafficked.

The judge referred to Croydon’s referral under the National Referral Mechanism dated 14 April 2020 which relied on factors including exploitation, excessive house chores, regular patterns of leaving and returning to residence indicating working, limited freedom of movement, movement into, within or out of the UK, unable or reluctant to give accommodation or personal details and "psychological – indications of trauma or numbing".  

Judge Mercer noted that the first reasonable grounds decision of 1 May 2020 found that there were not reasonable grounds to conclude that HJ was a victim of modern slavery ("due to the lack of information provided", the defendant council not having responded to a request for information) albeit that a reassessment on 16 October 2020 found that there were reasonable grounds so to conclude. A further decision on whether there are Conclusive Grounds is awaited.

The conclusion of Greenwich’s social workers had been that HJ “looks older than the age she claimed to be, we would estimate her to be in her early 20s”.

After the interview with the Greenwich social workers, HJ recalled being put back in her cell and later being interviewed by an immigration officer from the Home Office who told HJ that her age was not accepted. On 15 January 2020, the Home Office granted immigration bail with a requirement on HJ to appear at Lunar House in Croydon on 22 January 2020.

Judge Mercer said it was not clear whether HJ's presence in Croydon was the result of the instruction in her grant of immigration bail to attend at Lunar House on 22 January 2020 combined with her desire to avoid returning to the address where she had been found in Greenwich or the result of solicitors' advice or her coming into contact with the Refugee Council.

On 20 January 2020, HJ returned to Croydon Council in person which again refused to assess her on the basis that responsibility lay with Greenwich. HJ's solicitor responded that the Refugee Council had concerns about the nature of the relationship between the claimant and the man at the property in Greenwich such that it would not be desirable for her to return there. In fact she did return to the address in Greenwich for each night between 15 January and 20 January inclusive.

Mrs Justice Steyn granted interim relief to HJ ordering that Croydon Council secure that suitable age appropriate accommodation be made available to the claimant. HJ has been living with a foster carer.

Croydon’s summary grounds disclosed that it became aware – from contact with the Home Office - of an age assessment by Greenwich on 22 January. The defendant obtained a copy from Greenwich who called it a "preliminary assessment".

Judge Mercer said it followed that, when refusing to assess HJ as a child in need under the Children Act 1989 on 17, 20 and 21 January 2020, the defendant was not aware that there had been a preliminary assessment of HJ's age by Greenwich.

The target of the application for judicial review was the last of the three decisions and, the judge said, “we know that the Defendant knew that RBG [the Royal Borough of Greenwich] was involved in some way because of the reason given for not assessing HJ on 20 January 2020 which was that RBG was responsible. Such knowledge could of course have come from HJ and not necessarily from any contact by the Defendant with RBG.”

The last event of January was that HJ's solicitor sent pre-action correspondence to Greenwich explaining why the age assessment was unlawful to which Greenwich responded that proceedings had been properly brought against the defendant in whose area HJ was present at the time.

David Lock QC in a judgment of 11 February 2020 refused to join Greenwich as a defendant but ordered that it be joined as an interested party.

Judge Mercer said Greenwich’s response to the letter before claim crystallised the on-going dispute between the two councils who each believed that the other authority was responsible for HJ.

“The problem for both authorities, in terms of sorting out the responsibility for any support provided to HJ, is that this is not a case where one authority is judicially reviewing another authority but rather a decision on the legality of the defendant's refusal to assess HJ under the Children Act 1989,” he added.

Judge Mercer said that according to the Age Assessment Guidance, if the Home Office had the documentary material which was before him, it (and by extension the defendant when it saw the information from Greenwich which was before him, if and to the extent that the defendant considered that an age assessment was necessary) must have been in doubt as to whether there was sufficient evidence to show that the age assessment was completed in line with case law for the following reasons:

i) The Assessment team's conclusion on 15 January 2020 is recorded in the Person Case Notes as establishing that HJ "is over 18 years and therefore is an adult" and in the note written up later by RBG ("the Note of Interview") as "in her early 20s" but there is no recognition of the margin for error in such an assessment and the need to give HJ the benefit of the doubt in what RBG describes as a "preliminary assessment";

ii) It is not recorded that RBG explained to HJ that it was carrying out an age assessment and the Person Case Notes indicate various other purposes for the interview which took place on 15 January 2020;

iii) No appropriate adult is recorded as being present;

iv) There is no suggestion in the Note of Interview that RBG put adverse matters to HJ;

v) There is no record of a reasoned decision as to why it was rejecting HJ's account of her age.

Judge Mercer said that to those points could be added the circumstances of the interview due to a combination of HJ's evident fear of the police, her tiredness, the unknown method of travel and experiences, and the potential indications of trafficking with the possible trauma that entails.

“Though I acknowledge that the typed interview record evidences consideration going beyond merely physical appearance/demeanour, the absence of reference to aspects of basic fairness in the interview notes should have troubled any authority reviewing the assessment in this case. Even though the Home Office did tell HJ on 15 January that her age was not accepted, there is no suggestion that she was told that her age had in fact been assessed or that she was entitled to challenge that assessment. In addition, a finding in a "preliminary assessment" which is stated as "over 18 years" in one place and "early 20s" in another place and which it seems led to the Home Office inserting a date of birth of 2001 must give rise to an obvious question as to the margin for error in an abbreviated assessment if the case law were being applied.”

The Deputy High Court judge said that, in those circumstances, an age assessment in line with case law was required to be carried out.

“The Defendant and RBG were instructed by the Age Assessment Guidance to "collaborate and promptly agree" which local authority is to take responsibility for conducting the age assessment. If there had been such collaboration or cooperation between the Defendant and RBG, one would expect to find it in the evidence before the Court but no such evidence is before me. In the circumstances of this case, I cannot accept that the Defendant was entitled to refuse to assess the needs of HJ on the basis of the preliminary assessment of age by RBG.”