ZHB v Cardiff City Council

The Claim is a challenge to an age assessment (“the assessment”) completed by the Defendant local authority (“the Council”) on 12 October 2023 which found the Claimant to be an adult whose date of birth was, most likely, 20 October 2001.

The Claimant is an Iranian national who arrived in the UK on a small boat on 18 October 2022 and sought asylum. He claimed that his date of birth was 20 October 2005, and therefore that he was a 16, almost 17-year-old, child. The Home Office quickly rejected that claim and assessed him to be an adult, 4 years older than he claimed. He was initially detained for 18 days, then released and dispersed to adult asylum seekers’ accommodation (a hotel) in North Wales. He was assessed there by social workers from Conwy Borough Council (“Conwy”) who, following a “Brief Enquiry” conducted in November and December 2022, found no reason to disagree with the Home Office’s assessment of the Claimant’s age.

Shortly afterwards, the Claimant moved to the Council’s area. The Council noted that he required a full “Merton compliant” age assessment (that is, an assessment compliant with the standards laid down in R (B) v London Borough of Merton [2003] 4 All ER 280, [2003] EWHC 1689 (Admin)) in order to ascertain whether he was a child. In the meantime, he was treated as if he were a child. He was placed in semi-independent accommodation suitable for persons of the age he claimed to be between March and October 2023. His accommodation had on-site staff, including youth workers from an organisation called Tros Gynnal Plant (“TGP”), one of whom was appointed to advocate for the Claimant in his meetings with the Council. Those meetings included the full panoply of assessments, plans and reviews which the Council provided to looked after children. A Merton compliant age assessment was then conducted by the Council, in four meetings in September and October 2023 attended by the Claimant, an interpreter and a youth advocate, fulfilling the role of an “appropriate adult”. The outcome of the assessment, reached on 12 October 2023, was that the Council took the view that the Claimant was over the age of 18, and that his date of birth was (as found at the outset by the Home Office) most likely to be 20 October 2001. The outcome of the assessment was communicated to the Claimant on 25 October 2023 by which time he was, on his claimed date of birth, over 18 and no longer a child.

The Claim was issued on 25 February 2024 and rested on three grounds. The first ground (“Ground 1”) is that the assessment breached the Claimant’s rights under Article 8 ECHR because the Council did not appoint a guardian or legal representative to represent the Claimant during the assessment process or ensure that he had access to legal advice in respect of the assessment or ensure his informed participation in the assessment. The second ground (“Ground 2”) is that the Council acted in breach of s. 7(2) of the Social Services and Well-being Act (Wales) Act 2014 (“the 2014 Act”) because, when conducting the assessment, it failed to have due regard to Part 1 of the United Nations Convention on the Rights of the Child (“CRC”). The lack of due regard is said to have manifested itself in (a) an omission to undertake a best interests assessment, (b) a failure to consider the need for appointment of a guardian or legal representative and (c) a failure to engage with relevant CRC authority, which is said to include the Views of the Committee on the Rights of the Child (“the Committee”) under the Optional Protocol on a communications procedure in NBF v Spain (CRC/C/79/D/11/2017, 18 February 2019).

These grounds were given permission to proceed by the Court of Appeal (Arnold LJ), permission having been refused on the papers by HHJ Lambert and again by HHJ Jarman following an oral hearing. The proposed third ground, which was refused permission by the Court of Appeal, was that the outcome of the assessment was wrong and that the Court should re-determine the Claimant’s age. 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.

The Claimant therefore seeks declaratory and quashing relief in relation to the assessment, so as to bring about the situation where there is no extant assessment and a new one may be required to be done. That could be of real practical benefit to the Claimant notwithstanding that he is now, on his own claimed date of birth, 20 years old. In particular, it was accepted by the Council that if a new assessment were done which found that the Claimant had been a child at the time that he was accommodated by them, he would be entitled to various benefits and services – money, advice, potentially accommodation – which the Council is required to provide to care leavers pursuant to Part 6 of the 2014 Act.

In the remainder of this judgment, I shall:

a)

b)

c)

The assessment was conducted by two experienced social workers, Richard Dunne and Alice Lloyd-James, who were employed in the Council’s Children’s Services department. Both had undertaken specific training on Merton-compliant age assessments. Both familiarised themselves in advance of the assessment with guidance on the conduct of such assessments issued by the Welsh Ministers (the “Unaccompanied Asylum Seeking Children Age Assessment Toolkit” (“the Toolkit”)) and Children in Wales, an umbrella body for people and organisations who work with children and young people (“Safeguarding and Promoting the Welfare of Unaccompanied Asylum-Seeking Children and Young People”).

The assessment was completed over four sessions in a private room at premises occupied by the Council’s Children’s Services department. All of the sessions were attended by the Claimant, the two social workers, an interpreter, and an advocate, initially Ms Lucano of the National Youth Advocacy Service (“NYAS”), acting as the Claimant’s “Appropriate Adult”.

The role of the Appropriate Adult is described in the Toolkit as follows (p.20):

The assessment records that Ms Lucano explained the process to the Claimant (§5.2), and that the Claimant was afforded the opportunity to ask any questions he had about the process and to have time alone with Ms Lucano. It is also recorded that he was informed that he could discuss the outcome of the assessment with his solicitor who was acting for him in his asylum claim (§5.19).

The assessment records that the Claimant indicated his understanding of why the assessment was being carried out, the process which would be adopted and the possible outcomes. There are several references in earlier records made by the Council to his being unhappy about the delay which had occurred before the assessment was commenced (said to be because of a backlog of cases for assessment by the Council), which also indicates an understanding on his part of the purpose and implications of the assessment.

There were two information gathering sessions at which the Claimant was asked questions about matters such as his family background, why he had left Iran, his journey to the UK, his state of health and his day-to-day activities. There was then what the Council termed a “minded to” discussion in which the Claimant was offered the opportunity to respond to evidence which the social workers regarded as indicative that he was over 18 and to address discrepancies in his answers as compared to answers he had given previously on the same subjects. During a break in that discussion, the Claimant expressed anger to Ms Lucano that the decision had already been made that he was over 18 and complained that the more senior of the social workers, Mr Dunne, had been aggressive towards him in an interaction earlier that week. That complaint was conveyed by Ms Lucano and she advised the Council that the “minded to” discussion should be paused, in the Claimant’s interests, because of his then state of mind (even though the Claimant himself had wanted to continue with it) (§7.8 of the Assessment). Her advice resulted in the discussion being suspended and reconvened two days later, without Mr Dunne, and with a different advocate acting as Appropriate Adult, as Ms Lucano was by then unwell. The allegations against Mr Dunne were subsequently investigated by the Council and rejected.

The assessment report was drafted by Ms Roberts but signed by both social workers. The assessment concluded as follows:

Under Ground 1, the Claimant submits that the process of age assessment of a person claiming to be a minor engages the obligations of a public authority under Article 8 ECHR, and so under s. 6(1) of the Human Rights Act 1998, because age is an important aspect of personal identity and age assessment is potentially critical for entitlement to a range of rights and benefits. The European Court of Human Rights (“ECtHR”) has prescribed minimum procedural standards for age assessments, in particular in Darboe v Italy (2023) 76 EHRR 5, which include (a) the appointment of a legal representative or guardian, (b) access to legal advice and (c) informed participation by the person affected in the assessment process. It is, variously, submitted that the Claimant’s Article 8 rights were breached because the Council did not afford him the first of those safeguards (according to §27 of the Amended Statement of Facts and Grounds), the first and second of those safeguards (according to the Claimant’s Skeleton Argument), or all three of them (according to Mr Bedford’s oral submissions). It was not necessary, before concluding that there had been a breach of Article 8, to investigate whether any such failings had any practical impact upon the conduct of the assessment and the treatment of the Claimant because the requirements laid down by the ECtHR are absolute. But if it were necessary, there was unfairness to him because a legal representative would have pointed out inadequacies in the previous assessments by the Home Office and Conwy and that they should not be relied upon.

In view of the wider implications of the findings sought by the Claimant – which, at their broadest, could require the appointment of a legal representative/guardian for all persons undergoing age assessments, as well as the creation of a bespoke regime for advice and/or representation in such assessments - the Claimant secured an Order from the Court joining both the Welsh Ministers and the Home Secretary as Interested Parties. Both filed Detailed Grounds of Resistance to the Claim. The Home Secretary also attended the hearing before me, by Mr Thomann KC and Mr Mandagere.

The applicant in Darboe had arrived in Sicily in June 2016 on a small boat and declared himself to be an unaccompanied minor. He was initially accommodated with other minors but in September 2016 was transferred to an adult reception centre, where (a) he was provided with a healthcare card giving his age as 17, and (b) he underwent a medical examination involving X-rays of his left wrist and hand which concluded that he was 18 years old. Following a Rule 39 (that is, interim relief) intervention by the ECtHR, the applicant was transferred to a reception centre for minors in February 2017. The applicant complained (§§112-114) that he had been accommodated in unsuitable adult accommodation whilst a minor, that there had been a lack of access to legal information and difficulties in him communicating his discomfort and needs, and that the age assessment he had been subjected to had been carried out in breach of domestic and international law.

In considering the application of Article 8, the ECtHR referred, in particular, to the aspect of Article 8 which protects the right to personal development and the right to establish and develop relationships with other human beings and the outside world. States’ obligations to protect this right were said to be “even more important where, like in the present case, personal relationships of an unaccompanied minor are at stake, in a migration context that makes him or her particularly vulnerable” (§123). The Court continued:

The Court analysed the applicant’s complaint as being that the Italian State had failed to take all necessary measures to protect him as a minor and ensure the procedural safeguards related to his age assessment. This was, then, an alleged failure to comply with positive obligations to respect and protect private life rather than an alleged Article 8(1) interference with the right to respect for private life which fell to be justified under Article 8(2) (§129). Noting the broad margin of appreciation which States have in choosing how to comply with their positive obligations (§128), the question for the Court’s determination was “whether the authorities took reasonable steps to ensure the applicant’s procedural rights within the age-assessment procedure” (§130).

The Court set out at length the relevant domestic, EU and international law (Council of Europe and CRC) on the treatment of persons seeking asylum who were or claimed to be unaccompanied minors (§§42-94). The procedural safeguards guaranteed by domestic law (implementing EU law) at the material time included the appointment of a legal guardian, the provision of emotional and psychological support by “suitable persons, indicated by the minor, as well as of groups, foundations, associations and non-governmental organisations with proven experience in the field of assistance to foreign children” and the right to participate through a representative in all judicial and administrative proceedings (§47). The Court summarised that domestic, EU law and Council of Europe texts “clearly recognise the primary importance of the best interests of the child and of the principle of presumption of minority in respect of unaccompanied migrant children reaching Europe. In particular, attention is given to the need for a child to be immediately provided with a guardian and for him or her to be assisted during the asylum proceedings” (§§139-140).

The Court criticised the Italian authorities under two heads, which had in combination led to the applicant being unable to file an asylum claim for many months after his arrival in Italy, and being held in an overcrowded adult reception centre for over four months (§150). First, they had failed promptly to provide the applicant with a legal guardian or representative (§143). Second, they had failed to provide him with adequate information about the age assessment procedure. He was not informed about the nature and purpose of the examination before it occurred, the report on his examination was not provided to him, it did not recognise any margin for error and no official decision was ever taken that he was an adult, meaning that he could not appeal (§§146-148).

The Court then drew together its conclusions as follows:

The “safeguards” or “minimum procedural guarantees” referred to in §§155-156 – “the appointment of a legal representative or guardian, access to a lawyer and informed participation in the age-assessment procedure of the person whose age was in doubt” - are at the heart of the Claimant’s submissions in the present case. It is clear from the juxtaposition of “legal representative” and “lawyer” that the former is not the same as the latter but is rather a representative formally appointed pursuant to law. That is also clear from the various domestic and EU law instruments on which the ECtHR expressly relied (see §§45 and 47 of the judgment setting out the Italian law guaranteeing the appointment of a legal guardian for a child claiming asylum and the participation of the legal guardian in age assessments and §§75-78 setting out relevant provisions of EU directives which require the appointment of “representation” or a “representative” to assist child migrants, which may be a legal guardian or a non-governmental organisation or “any other appropriate representation”).

The Claimant relied upon three subsequent cases on the treatment of child migrants in which Darboe was cited by the ECtHR.

In Diakitè v Italy (appl. 44646/17, 14 September 2023), the applicant also arrived in Sicily on a small boat, on 29 January 2017. He provided a birth certificate stating that he was 17 but a medical examination equivalent to that carried out in Darboe found that he was at least 18 and he was transferred, on 7 February 2017, to an adult reception centre in Rome. The Court cited various sources of evidence as to the poor conditions in the reception centre (§§10-15). The applicant managed to instruct a lawyer who made representations to the authorities on his behalf on 19 June 2017, resulting in his swift transfer to a reception centre for minors. A guardian was appointed on 17 July 2017. An asylum claim was also initiated, which was successful.

The ECtHR referred to Darboe as summarising “the general principles concerning the procedural guarantees applicable to minor migrants” (§20). It repeated that “these safeguards clearly included, under both domestic and EU law, the appointment of a legal representative or guardian, access to a lawyer and informed participation in the age-assessment procedure of the person whose age was in doubt”. There was no need to analyse domestic law as this case also concerned Italy whose domestic law had been analysed in Darboe. The Court concluded that “the authorities did not act with reasonable diligence and therefore did not comply with their positive obligation to ensure the applicant’s right to respect for his private life” (§23). That was because the applicant did not benefit from the minimum procedural guarantees despite having provided a birth certificate which showed his minor age (§22). The principle of presumption of minor age was an inherent element of the protection of the Article 8 right to respect for private life of a foreign unaccompanied individual declaring to be a minor.

In TK v Greece (appl. 16112/20, 18 January 2024), the applicant claimed to be a child but was registered as an adult by the Greek authorities, upon his arrival in Samos on 25 October 2019. In February 2020, he provided an official copy of his birth certificate issued by the Ministry of Health of Sierra Leone, which showed his date of birth as 16 August 2002, but the Greek authorities refused to accept it because he had not yet applied for asylum. When he applied for asylum, they refused to accept it because it was not in Greek, nor notarised by the relevant consulate and told him that the only way to change his recorded age was through an age assessment procedure. That procedure was initiated on 5 March 2020 but nothing was done to action it until 8 March 2021. Ultimately, the applicant’s date of birth was recognised as that on his birth certificate. He was granted asylum.

The Court referred to both Darboe and Diakitè and again held that the authorities had not exercised the required diligence regarding the procedural safeguards relating to age assessment, including the appointment of a guardian, and so had failed to comply with their positive obligation to protect the applicant as an unaccompanied minor seeking international protection (§24). This was because the Greek authorities had failed to apply the presumption of minority, had refused to accept the applicant’s birth certificate and had delayed the progression of his age assessment for a year without justification, whilst treating him as an adult (§23).

In AC v France (appl. 15457, 16 January 2025)

, the applicant’s claim to be a child had initially been accepted by the French authorities and he was provided with temporary, emergency care. However, following investigation which included a medical examination, it was concluded that he was not a minor and his care was terminated. The Court distinguished this case from Darboe as one where the applicant had not made a claim for asylum and where, accordingly, the protections available to a presumed minor under French domestic law were different (in particular, there was no provision for appointment of a legal representative/guardian from the outset) (§§170-171). There were, however, a number of applicable domestic law protections, including provision for the person to be informed of the reasons for any refusal of support under child welfare services, of the legal remedies and time limits, and of the rights afforded to adults (§165). The Court also referred to international instruments, such as the CRC and other UN instruments, and Council of Europe recommendations which were relevant to the treatment of minors, including where they had not applied for asylum and notwithstanding that these instruments were not legally binding upon the French authorities (§167).

The Court held that the French authorities had failed to act with reasonable diligence and had breached their positive obligation to secure the applicant’s respect for private life (§183). Although domestic law did contain procedural guarantees there had been a series of shortcomings in the information provided to the applicant during the age assessment process. He had, for example, not been provided with the administrative decision on his age (which was inconclusive), or the results of his medical examination or any reasons for the subsequent decision of the public prosecutor that he was an adult; nor had he been informed of the remedies for challenging that decision. The legal presumption that he was a minor had been overturned under conditions which deprived him of sufficient procedural safeguards (§§178-182).

For his part, Mr Alba for the Council relied upon the latest judgment in this line of authority, FB v Belgium (2026) 82 EHRR 2. The applicant in FB had claimed asylum as a minor but was found not to be a minor on the basis of a medical test involving bone X-rays. She argued that she had not consented to the test, and that there had been other procedural failings in the age assessment process. The First Section of the Court (which had also decided Darboe) analysed the claim as one of interference with Article 8(1) rights which fell to be justified under Article 8(2) rather than as one turning on the positive obligations of the state. It held that the decision of the Belgian authorities to cease her care as an unaccompanied foreign minor, which deprived her of all of her rights flowing from that status, was an Article 8(1) interference (§76) which was not justified because it was not accompanied by sufficient procedural safeguards (§94). The procedural failings were that (a) an intrusive and potentially harmful bone test, consisting of three X-rays, had been used a first resort rather than a last resort, and so was disproportionate, when there were potentially other ways available of seeking to ascertain the applicant’s age, such as an interview, which had in fact taken place after the bone test (§93), (b) the applicant had not been informed of her right to consent, or not, to the test (§§87-90) and (c) doing the test first and the interview second meant that an official of the guardianship service who had participated in the interview had not been able to act as a safeguard on the applicant receiving sufficient information about the bone test to assert her rights (§93).

As Mr Alba pointed out, the Court did not base its finding of violation on failure by the Belgian authorities to guarantee what the Claimant submitted were the minimum procedural standards laid down in Darboe. Darboe was cited for the proposition that an age assessment must be accompanied by “sufficient procedural guarantees” (§73) but its impact upon the Court’s conclusions was relatively limited. The Court reasoned that the provision of full information regarding the bone test was “all the more important” where, as in FB, the person was presumed to be a minor and was not assisted by either a representative or a lawyer during the age assessment phase (§88).

I derive the following legal principles from the Strasbourg case-law summarised above:

a.

b.

c.

d.

e.

f.

I reject the Claimant’s submission that, in every case, a state will only act with reasonable diligence where it has provided all of the “minimum procedural guarantees” referred to in §156 of Darboe (“the appointment of a legal representative or guardian, access to a lawyer and informed participation in the age-assessment procedure of the person whose age was in doubt”). The “minimum procedural guarantees” in §156 of Darboe were those laid down by Italian law and EU law, the point being (as noted in §33c above) that the Italian Government could not claim to have acted with reasonable diligence when it had not even complied with the minimum legal standards to which it was already subject

I would accept that “informed participation in the age assessment procedure” should be regarded as a universal minimum standard, reflecting as it does an oft-stated requirement of Article 8 in the context of administrative and judicial procedures which affect private or family life (“the applicant must be involved in the decision-making process, seen as a whole, to a degree sufficient to provide him or her with the requisite protection of his interests”: Lazoriva v Ukraine (appl. 6878/14, judgment of 17 April 2018, §63 and the authorities cited therein)). But the proposition that a legal representative/guardian and access to a lawyer are essential pre-requisites of every age assessment procedure would be inconsistent with (a) the express reference to domestic and EU law in the relevant paragraphs of Darboe and Diakitè, (b) the distinction drawn in AC between age assessment of an asylum-seeker and age assessment for other purposes (the latter potentially requiring lesser safeguards), (c) the absence of any finding in AC that the failure to appoint a legal representative/guardian from the outset of the age assessment procedure gave rise to a breach of Article 8 and (d) with the margin of appreciation which is afforded to states when designing procedural safeguards for age assessment procedures. As to (d), given the diversity of law and practice amongst the Contracting States, and the recognised margin of appreciation, it would be surprising if the ECtHR had intended to lay down firm rules requiring a particular type, incidence and duration of representation and/or advice for persons undergoing age assessment.

In my judgment, the correct analysis is that there is a minimum legal standard (reasonable steps/reasonable diligence in ensuring procedural safeguards) and a choice of means as to how states satisfy that standard in each case. That would be consistent with the approach generally adopted by the ECtHR of avoiding broad statements of principle as to when the domestic law of a Contracting State violates Article 8 or other Convention rights and focusing instead on the particular facts of individual cases (see, for example, Zakharov v Russia (2016) 63 EHRR 17, §164: “The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention” [citations omitted]).

That approach is particularly apposite where issues of procedural fairness are concerned, as whether or not fairness or some analogous legal standard has been satisfied will usually depend upon the facts of each individual case. Whilst it could not, of course, be determinative of the correct analysis of the ECtHR case-law, I take comfort from the fact that the domestic public law approach to the application of standards of procedural fairness to age assessment processes has also eschewed general rules and focused on the facts of individual cases: see the guidance given by Swift J in R (HAM) v Brent London Borough Council [2022] PTSR 1779, §§69-72, endorsed by the Court of Appeal in R (SB) v Royal Borough of Kensington and Chelsea [2023] EWCA Civ 924; [2024] 1 W.L.R. 2613, §§86 and 90. One of the questions at issue in those cases was whether common law fairness required, as a rule, that an appropriate adult be present at age assessment interviews. The answer given was that there is no such rule: whether an age assessment interview will be unfair if there is no appropriate adult will depend on a range of factors, which will vary from case to case (see §90 of SB).

I also reject the Council’s broadest submission that the line of authority beginning with Darboe is not capable of imposing “freestanding” procedural obligations on states conducting age assessments but only of penalising states for not complying with the national law and (for certain Contracting States) EU law framework to which they were already subject. The starting point for the Court’s analysis of compliance with Article 8 positive obligations in Darboe was that national, European and international legal sources “show a general recognition, at the material time, of the need for special protection for unaccompanied minor migrants” (§141). It would be surprising if the Court had proceeded from there to a legal conclusion which had the effect only of enforcing only those safeguards for the protection of unaccompanied minor migrants which the national authorities were already required to provide. Further, as I have just noted, the “informed participation” requirement is likely to be regarded by the ECtHR as a universal minimum standard, albeit that it was not deployed in that way in Darboe. Indeed, the vice of the treatment of AC by the French authorities was a failure to ensure her informed participation, in particular when it came to giving consent to a medical examination. Also, it is difficult to see why a state with lesser protections in its domestic law should be less rather than more likely to be held in breach of Article 8 in this context (which would be the practical effect of a narrow focus upon domestic law as setting the standards of reasonable steps/reasonable diligence).

It follows that, in my judgment, a state which does not appoint a representative or guardian for a presumed child undergoing age assessment or which fails to ensure access to legal advice could, on the facts of a particular case, be held not to have acted with reasonable diligence, contrary to Article 8, even where these are not already requirements of domestic law.

There is another issue, raised by FB, as to whether procedural safeguards in age assessments should be analysed as a matter of positive obligations (as in Darboe and most subsequent cases) or negative obligations (as in FB). However, this question of approach does not arise in the present case, where the Claimant’s case has been put firmly on the basis of breach of Article 8 positive obligations and the Council did not question that approach. Nor do I, not least because the Claimant was accommodated by the Council as a looked after child right the way up to, and past, what he claimed was his 18th birthday, and so did not lose out on any rights or benefits by virtue of being found to be an adult which he would have received during the period when he claimed to be a child. Therefore, it would seem that the finding in FB of breach of negative obligations, which was based on the applicant’s loss of rights consequent upon status as a child, does not easily read across to the present case.

In my judgment, the procedural safeguards which were present for the age assessment of the Claimant by the Council were more than sufficient to satisfy the Council’s Article 8 positive obligations. The relevant safeguards were:

a.

b.

c.

d.

e.

Mr Bedford submitted, correctly, that the Claimant did not have a guardian or other state-appointed representative during the assessment process. However, the absence of a guardian/representative had no discernible practical impact and caused no prejudice to the Claimant given the role played, in particular, by the Appropriate Adult. In this case, the Appropriate Adult fulfilled essentially the same function as a guardian would have fulfilled had one been appointed and participated in the assessment. Mr Becket was not able to point to any significant steps which a guardian/representative would have taken which Ms Lucano or her successor did not take.

Mr Bedford also complained that the Claimant was not represented by a lawyer at his interviews with the Council. I do not accept that that was a necessary requirement of Article 8. The safeguards highlighted in Darboe included “access to a lawyer” not representation by a lawyer at any meetings during the age assessment process. As Mr Alba and Mr Thomann KC submitted, there is good reason for a system of age assessment which starts with a relatively informal, non-legalistic assessment by social workers, with the opportunity for legal challenge, supported by public funding, to the findings made at that initial stage. A system which had the full involvement of lawyers from the start would look very different and would have significant disadvantages, including for those being assessed.

Nor do I accept that the absence of legal representation at the assessment caused any material prejudice to the Claimant. When pressed on the practical difference which representation by a lawyer would have made to the Claimant, Mr Becket argued that a lawyer would have argued that no weight should be placed by the Council on the previous age assessments by the Home Office and by Conwy, which were flawed. I return below to the issue of whether those assessments were flawed. It is sufficient for present purposes to say that the previous assessments had little overall impact upon the Council’s judgment, which was reached independently and afresh. Both of the earlier assessments were noted in an Evidence Table as carrying little weight individually, but weight was given to the fact that all three assessing bodies had reached the same conclusion. Even if the earlier assessments had been entirely disregarded, it is highly improbable that the Council’s conclusion would have been any different.

Mr Bedford also submitted that a legal representative at the assessment interviews would have pointed out that the Claimant had been released from Home Office detention on account of his claimed date of birth putting him as under 18. The reasoning for the decision to release the Claimant from detention is unclear. It may be that the officer in question had simply overlooked the outcome of the Home Office’s age assessment. Or the Claimant may have been given the benefit of the doubt, which would be consistent with the presumption of minority which the Claimant says should have applied throughout. An explanation would, no doubt, have been sought from the relevant officials if this issue had been raised at any stage before the hearing. Whatever the true explanation, it is highly improbable that this issue being pointed out could have made any difference to the conduct or outcome of the assessment.

Overall, as a result of the measures in §41(a)-(e) above, and his own appreciation of the nature and significance of the process, the Claimant was enabled to participate in the age assessment process on an informed basis. He suffered no prejudice from the absence of further procedural safeguards. In the circumstances of this case, the Council took reasonable steps, and acted with reasonable diligence, to ensure the Claimant’s right to respect for his private life. I would equally have concluded that there had been no breach of the Claimant’s Article 8 rights if I had analysed the claim as one of breach of Article 8(1) which was not justified under Article 8(2), given in particular the Council’s treatment of the Claimant as a child prior to and during the assessment, and the various procedural protections which were afforded to him during the assessment.

In the course of submitting that a lawyer representing the Claimant during the assessment would have insisted that the Council should ignore the age assessments conducted by the Home Office and Conwy, Mr Bedford invited me to find that both the Home Office and Conwy had failed to comply with the minimum procedural safeguards required by Article 8. I decline to do so. The Home Office and Conwy are not defendants to these proceedings, and it was no part of the Claimant’s pleaded case that there had been any breach of Article 8 on their part. An assertion was made to that effect in Mr Bedford’s Skeleton Argument but no application to amend the Claim was made and it would have been much too late to contemplate that course.

Contrary to a submission made by Mr Bedford, it is not the case that compliance with Article 8 in a claim against the Council must be assessed by reference to the conduct of all of the public authorities who have been involved in the Claimant’s case before – if a breach of Article 8 is found – proceeding to determine whether the Council, as the defendant authority, bore primary responsibility for ensuring compliance with Article 8. There is some support for that approach in the context of the right to education in Article 2 of the First Protocol to the ECHR (see the synthesis in R (E) v Islington LBC [2017] EWHC 1440 (Admin); [2018] PTSR 349, §§23-28). But Article 2 was said to be unique among the qualified Convention rights in this regard. 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. 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 (see further §44 above).

I therefore reject Ground 1.

Section 7 of the 2014 Act provides, so far as material:

The Claimant submits that when conducting the assessment the Council was bound by this duty to have due regard to Part 1 of the CRC and relies upon that duty as an alternative route to the procedural protections to which he lays claim, in the first instance, under Article 8 ECHR. As I have summarised in §4 above, the Council’s lack of due regard is said to have manifested itself in (a) an omission to undertake a best interests assessment, (b) a failure to consider the need for appointment of a guardian or legal representative and (c) a failure to engage with the relevant CRC materials, which are said to include the Views adopted by the Committee in NBF v Spain. That Opinion concluded that Spain had violated Articles 3 (duty to treat the best interests of the child as a primary consideration) and 12 (duty to provide an opportunity to be heard in administrative proceedings affecting the child) of the CRC by determining a migrant’s age based solely on a medical examination, including a bone X-ray, and failing to appoint a “qualified legal representative” for the complainant as soon as possible upon his arrival in Spain and free of charge (§12.8).

I reject that submission, in summary, for two reasons: (a) the s. 7(2) duty did not apply to the assessment, and (b) the Council in any event complied in substance with any due regard duty which was applicable to it.

Children within the scope of s. 7(2) include (s. 6(1)(c)), “an individual in respect of whom functions are exercisable under Part 6 (looked after children etc)”. A potentially difficult question arises in respect of the Claimant, who at the time of the assessment was being treated by the Council as a looked after child, but whom it subsequently determined was not a child at that time (a finding which the Claimant has been refused permission to challenge). However, the Council has conceded that the Claimant fell within s. 7(2) at the relevant time (of the assessment) on account of being then looked after pursuant to the Council’s duties in Part 6 of the 2014 Act. That concession is consistent with the presumption of minority which was being applied by the Council at the time of the assessment.

The Council does, however, dispute the applicability of the s. 7(2) duty on the grounds that when conducting the assessment it was not exercising functions under the 2014 Act but rather functions under the Nationality and Borders Act 2022 (“the 2022 Act”). Prior to the 2022 Act, there was little doubt that a local authority which was assessing the age of a putative child in order to decide whether it owed them any duties under the 2014 Act (or, if an English authority, equivalent duties under the Children Act 1989) was exercising functions under the 2014 Act or equivalent. It was implicit in a decision whether 2014 Act duties are owed to a child that the authority must first satisfy itself that the individual is a child (see, for example, R (A) v Croydon LBC [2009] UKSC 8; [2009] 1 WLR 2557, §§27-33 where the Supreme Court analysed the correct legal approach to a challenge to a local authority’s determination of whether a person was a child for the purposes of the Children Act 1989 and proceeded on the basis that this was a decision taken under that Act).

The 2022 Act, which extends to Wales (s. 86(1)) creates a new regime for age assessments, distinguishing between assessments for the purposes of the functions of the Home Secretary under immigration legislation, and assessments for the purposes of local authorities’ functions under legislation relating to children (“child care functions”). Local authority assessments are governed by s. 50, which provides, so far as material:

An “age-disputed person” is (see s. 49(1)), a person who requires leave to enter or remain in the United Kingdom (whether or not such leave has been given), and in relation to whom (inter alia) a local authority or the Secretary of State, has insufficient evidence to be sure of their age. The designated person is the National Age Assessment Board (“NAAB”). If a local authority refers a case to the NAAB for determination, that determination will be binding upon the local authority and upon the Home Secretary and immigration officers exercising immigration functions (s. 50(7)).

It seems clear from s. 50(2) that a Welsh local authority deciding whether or not a person is a child for the purposes of its child-related functions under the 2014 Act (which is “relevant children’s legislation”: see the definition in s. 49(3)) falls within s. 50(2), and so is subject to s. 50(3)-(4)). A local authority which determines the Claimant’s age itself, rather than (e.g.) referring the case to the NAAB, performs a duty imposed by s. 50(3) by exercising the option in s. 50(3)(b) and is required by that subsection to inform the Home Secretary in writing of its findings. Under the 2022 Act, as enacted, a number of other consequences also flow from an assessment being one carried out under s. 50(3)(b) of the 2022 Act (or under other limbs of s. 50(3) and under s. 51):

a.

b.

c.

d.

e.

The meaning and effect of these provisions discloses an intention to streamline and standardise age assessment processes which had up to then been conducted by local authorities and the Home Secretary pursuant to a variety of different statutory provisions and without being subject to any particular procedural requirements. That characterisation is consistent with the stated intention of the Government which introduced the Bill which became the 2022 Act. There was no White Paper preceding the Bill, but a “New Plan for Immigration” served a broadly similar purpose, and stated as follows:

Turning back to the relevant legal question under s. 7(2) of the 2014 Act, it seems to me that the objective of streamlining and standardising age assessments, including by local authorities for the purposes of their childcare functions, could only be achieved by regarding all such assessments as carried out under the 2022 Act. If it were the case that a local authority assessment to determine whether an individual was a child to which it owed childcare duties remained an assessment conducted under the 2014 Act, or the Children Act 1989 in England, then it would not fall subject to the various provisions set out in §57 above. That would lead to the consequences, for example, that there was no obligation to report the outcome to the Home Secretary, or that non-standardised scientific methods could be used or that – even after the remedy of appeal to the FTT is brought into force - the remedy for challenging the local authority’s decision would be judicial review rather than appeal. The goal of streamlining and standardising would be frustrated. On the particular issue raised by the present case, that of procedural protections in age assessment processes, if the Home Secretary were to use the regulation-making power in s. 53(1)(a)(iii) of the 2022 Act to enact new protections such as the appointment of a legal guardian, the surprising logic of the Claimant’s argument is that such protections would not apply to the assessment of a person in his position, which is not an assessment carried out under ss. 50 or 51 of the 2022 Act.

For similar reasons, I reject the alternative submission of the Claimant that the assessment in his case was carried out both under the 2014 Act and under the 2022 Act. It seems to me very unlikely that Parliament could have intended to enact a new, streamlined and standardised, set of rules for age assessments, including new provision for procedural protections in age assessments and a new route of legal challenge to the outcome of such assessments (along with provision for legal aid to enable such challenges to be brought), whilst leaving in place a parallel regime which is subject to different rules. That would be a recipe for confusion, as well as arbitrary distinctions between cases according to whether a local authority purported to age assess under the 2014 Act or under the 2022 Act or both.

In my judgment, the assessment of the Claimant was one conducted by the Council under s. 50 of the 2022 Act and therefore that, when conducting the assessment, the Council was not exercising functions under the 2014 Act. It was exercising functions in relation to the Claimant under the 2014 Act in the sense that it was accommodating him and treating him as a looked-after child, and s. 7(2) applied to those functions. However, when it came to assessing his age, and deciding the procedural safeguards which it should put in place for that assessment, its actions fell under the regime in the 2022 Act.

The Claimant submitted, and the Council did not dispute, that compliance with the “due regard” duty in s. 7(2) of the 2014 Act was to be assessed on the basis of the standards which are now well-established in relation to the public sector equality duty in s. 149 of the Equality Act 2010. The well-known dictum of McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, [2014] Eq LR 60, §26, approved by the Supreme Court in R (Hotak) v Southwark LBC [2015] UKSC 30, [2016] AC 811, §73 was relied upon.

More controversially, the Claimant submitted that, in assessing compliance with the duty to have due regard to the CRC, it would be necessary for the Court to reach conclusions as to what the CRC required by way of procedural safeguards in an age assessment and then to examine whether the Council had either complied with the necessary standards, or at least reached a reasoned decision why it would not comply with them. The Claimant submitted that these standards were to be found in certain General Comments of the Committee in its Committee’s Concluding Observations report into the UK 2016 (“the 2016 Concluding Observations”) and in the “Views adopted by the Committee” in the NBF case.

I reject the submissions summarised in §63:

a.

b.

c.

If, contrary to my primary view, the Council had been required by s. 7(2) of the 2014 Act to have due regard to the CRC when conducting the Claimant’s age assessment, I have would have held that it had discharged that duty, for four reasons in particular. First, the Council’s social workers directed themselves to and applied the Toolkit, which contains multiple references to the CRC, including in a section which explains the significance of referring age assessment cases to statutory advocacy services (currently provided by NYAS), supported by interpreters (p. 37). The Toolkit was produced by the Welsh Government which is required to have due regard to the CRC when exercising any of its functions (pursuant to the Rights of Children and Young Persons (Wales) Measure 2011). Absent unusual circumstances, a local authority such as the Council can be taken to have complied with s. 7(2) if it applies guidance which has been written by the Welsh Government in part in order to give effect to the CRC.

Second, by accommodating the Claimant as if he was a child and giving him access to advocacy and interpretation services so as to enable his informed participation in the assessment, the Council did in substance have due regard to the broad principles set out in Articles 3 and 12 of the CRC. As I have noted, I do not think it likely that s. 7(2) of the 2014 Act was intended to oblige local authorities to investigate and seek to piece together the implications of statements of views by the Committee as to the requirements of the CRC in particular contexts, with a consequent duty of the courts to review the correctness of an authority’s findings on the requirements of the CRC. It is of no significance in this case that there is no documentary record stating that the Council had had due regard to the CRC in these or other ways. It is a well-established feature of the PSED case-law that an equality impact assessment or other formal consideration of the necessary matters is not necessary so long as there has been compliance in substance. There is no reason why the duty in s. 7(2) of the 2014 Act should be more formalistic and so more onerous than the PSED.

Third, even if I had agreed with the Claimant that the Council was required to comply with the Views adopted by the Committee in NBF, I would not have characterised the decision in NBF as any more far-reaching in terms of the procedural safeguards required in the Claimant’s case than the Strasbourg case-law I have already discussed. The “qualified legal representative” who, according to the Committee, should have been appointed to defend the interests of the complainant in the age assessment procedure (§12.8) was not a lawyer, as Mr Bedford suggested in argument, but a “representative to assist him” (see §12.9), a role no different from the guardian or representative discussed by the ECtHR in Darboe and subsequent cases. Further, the Committee was here applying the broad principles expressed in Articles 3 and 12 of the CRC to the effect that the best interests of the child should be a primary consideration and that a child capable of forming his or her own views should have the right to express them freely in all matters affecting them, including in any judicial or administrative proceedings affecting them. Those broad principles were respected in the Claimant’s case through the safeguards set out in §41 above. There is no reason to think that the requirements of the CRC would be more onerous than those of Article 8 ECHR, not least as the ECtHR set out and took into account the relevant provisions of the CRC and NBF itself in its judgment in Darboe (see §§58-63 of Darboe). In particular, NBF was a decision on its own facts, which included that the complainant had had no representative or advocate of any sort during the age assessment process. If, in substance, a person undergoing age assessment has been enabled to understand and participate in that process by an advocate and interpreter, I see no reason why that would not be (at the least) paying due regard to Articles 3 and 12 CRC on the facts of that particular case.

Fourth, I do not regard it as persuasive in the present case that the Committee has specifically recommended that the UK introduce a system of statutory independent guardians for unaccompanied child migrants, that it ensure that children have access to legal advice regarding the age assessment process and that their views are heard and taken into account (“Concluding observations on the combined sixth and seventh periodic reports of the United Kingdom of Great Britain and Northern Ireland”, §50(c), (e) and (g)). In response, the Welsh Government indicated that it would look into how a guardianship service could work, and how it would intersect with current statutory services, including advocacy (“Welsh Government Response to the United Nations Committee on the Rights of the Child’s Concluding Observations Report 2023”, p.82). As I have already explained, the latter two recommendations of the Committee were in fact respected in the Claimant’s assessment. And whatever the Committee might think about deficiencies in the state of domestic law regarding guardians, that would not preclude compliance with Articles 3 and 12 CRC in an individual case, such as that of the Claimant, through the provision (in particular) of advocacy services.

For those reasons, I reject Ground 2.

Accordingly, I dismiss the Claim.