High Court rejects age assessment challenge against city council

Mr Justice Coppel dismissed ZHB’s claim, having found no reason to overturn the council’s decision.

Although ZHB is now no longer a child even on his claimed date of birth, had he succeeded in establishing he was under 18 at the time of assessment he would have become entitled to various benefits and services – such as money, advice and potentially accommodation – which the council is required to provide to care leavers under Part 6 of the 2014 Act.

ZHB arrived in the UK on a small boat in October 2022 and sought asylum. He claimed he was born on 20 October 2005, and was therefore 16.

The Home Office quickly rejected that claim and assessed him as aged 20. He then lived in Conwy County Borough Council’s area  - whose staff agreed with the Home Office assessment - but later moved to Cardiff.

There, staff carried out a full ‘Merton-compliant’ age assessment during which he was treated as if he were a child. After this assessment, Cardiff too concluded ZHB was over 18.

ZHB alleged the assessment breached his rights under Article 8 ECHR because Cardiff did not appoint a guardian or legal representative during the assessment process, and that Cardiff acted in breach of s. 7(2) of the Social Services and Well-being Act (Wales) Act 2014 because it failed to have due regard to Part 1 of the United Nations Convention on the Rights of the Child (CRC).

A proposed third ground, refused permission by the Court of Appeal, was that the court should re-determine ZHB’s age.

Coppel J said: “It follows that the most that the claimant could achieve from this claim is a quashing of the assessment on procedural grounds and that he cannot pursue the remedy – sought in the claim form – of substitution of his claimed date of birth as the outcome of the assessment for that found by the council.”

He could seek only declaratory and quashing relief “so as to bring about the situation where there is no extant assessment and a new one may be required”, which could entitle ZHB to care leaver benefits.

The judge said it was not the case that compliance with Article 8 in the claim against Cardiff must be assessed by reference to the conduct of all of the public authorities involved in ZHB’s case.

“Where Article 8 is concerned, there is no reason to depart from the conventional view that the court cannot entertain an allegation that an authority has breached its duty under s. 6(1) HRA without that allegation having been pleaded against a defendant to the proceedings”, he said.

“Finally, even if I had been able to embark upon an evaluation of the assessments made by the Home Office and Conwy, and even if I had found some deficiency in one or both of those assessments, that would not have tainted the legality of the assessment subsequently conducted by the Council…I therefore reject Ground 1.”

On Ground 2, Coppel J said if Cardiff had been required by s. 7(2) of the 2014 Act to have due regard to the CRC when conducting the age assessment, “I have would have held that it had discharged that duty”.

This was because Cardiff social workers directed themselves to and applied the Unaccompanied Asylum Seeking Children Age Assessment Toolkit “which contains multiple references to the CRC”.

He said that by accommodating ZHB as if he was a child and giving him access to advocacy and interpretation services, Cardiff “did in substance have due regard to the broad principles set out in Articles 3 and 12 of the CRC”.

Mark Smulian