Is an appropriate adult always appropriate?
Sally Gore analyses a Court of Appeal ruling that considered the fairness of an age assessment when an appropriate adult was not used for the short-form assessment/interview.
In the recent decision of R (SB) v Royal Borough of Kensington and Chelsea [2023] EWCA Civ 924, the Court of Appeal decided to determine the appeal notwithstanding its acceptance of the submission that the substance of the appeal was now academic. In doing so, it gave some credence to the submission made on behalf of Kensington and Chelsea that “the effect of [the first instance decision], on these facts, is to attenuate, virtually to a vanishing point, the scope which a local authority was thought to have had to do a less elaborate assessment in what, in the expert judgment of social workers, is thought to be an obvious case” [81].
One of the challenges to the fairness of the assessment in this case had been that an appropriate adult was not used for the short-form assessment / interview.
It is fair to say that the case law is divided on the need for an appropriate adult in assessments such as these. The difficulty is partly one of circularity: a short-form assessment is justified in cases where the subject’s age is ‘obviously’ significantly older than they claim to be; but a large part of the decision-making that leads to this judgment comes from the (truncated) assessment itself.
The case law on the need for an appropriate adult is well-developed, if contradictory at times. The starting point is R (FZ) v London Borough of Croydon [2011] EWCA Civ. 59 when the lack of an appropriate adult was said to “contribute to” the successful appeal against refusal of permission [25]. Although this case is usually cited in support of an argument that an appropriate adult should have been present, at least one judge of the High Court interpreted this case early on as not imposing an absolute requirement. In R (AK) v Secretary of State for the Home Department and Leicester City Council [2011] EWHC 3188 (Admin) at [32] it was said that:
The presence of an "appropriate adult" is best practice, but it is not part of the Merton guidelines. Although in R(FZ) v London Borough of Croydon ….. the Court of Appeal said that the fact the claimant was not given the opportunity to have such a person present contributed to its decision whether he should be given permission to proceed to judicial review, they stopped short of stating that this was a compulsory additional requirement in all cases.
However, in the same year Coulson J. in R(J) v Secretary of State for the Home Department [2011] EWHC 3073 (Admin), after citing FZ, said at [11]: “… In addition, the Court of Appeal also concluded that, in that case, an appropriate adult should have been present at the assessment, or at the very least the appellant should have been given the opportunity to request the attendance of an appropriate adult”.
The view that an appropriate adult is an essential part of the age assessment process appeared to be strengthened by the Court of Appeal in the case of R (ZS) (Afghanistan) v SSHD [2015] EWCA Civ. 1137 at [52] where they discuss R (FZ) v Croydon:
Thus Z confirmed that an opportunity should be given to a young person to have an independent adult present at an age assessment interview. Judgment was given in Z in February 2011. The need to provide an opportunity for an independent adult to be present during an age assessment interview was by then a required part of the process.
This view was endorsed by Henshaw J. in R (MA) v Coventry City Council and Others [2022] EWHC 98 (Admin) at [50] and similarly by Thornton J in R (AB) v Kent County Council [2020] EWHC 109 (Admin) who set out a comprehensive list of the age assessment guidelines as they currently stood, being an amalgamation of the requirements in Merton and subsequent caselaw which list includes having (or at least being informed of the right to have) an appropriate adult present.
The question of different requirements for fully Merton-compliant and short-form assessments was canvassed in R (MA) v Coventry where the conclusion appears to be that there is no distinction to be drawn between a full (Merton) assessment and a truncated assessment when it comes to the requirement for an appropriate adult. However, Henshaw J appears to draw a further distinction between a short-form assessment and the ‘obvious’ assessments when a decision can justifiably be made on the basis of physical appearance alone. The difficulty for local authorities is that often such a distinction is not drawn in practice. Henshaw J’s reasoning is found at [109] – [111] of his judgment:
In particular, the requirements set out in the case law (and the SSHD’s pre-existing policies) for an appropriate adult to be present, and for a ‘minded to’ (or ‘provisional decision’) opportunity, exist because they are necessary elements of a fair and appropriate process (containing appropriate safeguards) designed to assess a person’s age in the absence of documentary records and given the fragility of reliance on appearance and demeanour save in obvious cases. In my view, those features are equally necessary in order to make a reliable assessment of age at the initial stage (and even applying a ‘clearly an adult’ standard) of an individual whose appearance and demeanour do not already indicate that he/she is obviously an adult. That is all the more so in circumstances where the individual in question has only in the last 24 hours reached the end of a usually long and arduous journey, which is bound to impact on his/her ability to respond cogently to questioning about details of his family history, education, journey to the UK and life narrative, at least without the assistance of an appropriate adult and a careful ‘minded to’ process. The risk of adverse inferences wrongly being drawn from incorrect or incomplete answers given due to fatigue and/or misunderstanding in such circumstances is obvious.
I also do not consider that the SSHD is assisted in this context by the statement at AB § 35 that there may come a point when an experienced social worker considers they have conducted sufficient inquiries to be confident that the person in front of them is either an adult or a child. Other than in clear or obvious appearance/demeanour cases, such a point can only properly be reached where the social workers’ view (viz that sufficient enquiries have been made) has itself been based on a reliable process in the assessment interview so far. I do not consider that that can occur where the process has, from the outset, lacked features which are necessary in order to ensure the reliability of the views formed.
I do not rule out the possibility of conducting a lawful initial age assessment, in a nonobvious case – i.e. where individual’s physical appearance and demeanour do not indicate that he/she is obviously over 18 – directly after the individual arrives in the UK. However, in my view it is inconsistent with the principles set out in the case law, including the need to conduct a fair and careful assessment, to seek to assess age in a non-obvious case (in the sense I have just indicated) in circumstances where an individual who has just arrived at the UK and been detained (i) does not have the support of an appropriate adult and (ii) is not given a ‘minded to’ opportunity.
Bennathan J. makes the same point in R(SB) v Kensington and Chelsea at first instance in R(SB) v Kensington and Chelsea [2022] EWHC 308 (Admin) at [32]:
In my view the depth of enquiry required of a local authority in an age assessment process is not binary. Obviously there will be cases, for example of a young child, where no process is needed to decide they are under 18. At the other end of the scale, were a middle-aged person to claim the status of a child, it must be open to a local authority to dismiss that claim without any formal process or interview. Once, as in this case, the local authority is dealing with a young person who their suitably-qualified staff regard as very likely to be older than 18, a shortened process must be permissible, but it still needs to be fair.
One of the requirements of fairness was for an appropriate adult to be involved. By this point, lawyers everywhere were scratching their heads with the apparent lack of clarity in the case law. However, the conclusion that the lack of an appropriate adult in this case contributed to the assessment being unfair was one of the successful grounds when the SB case went to the Court of Appeal.
Giving the unanimous judgment of the Court of Appeal, Laing LJ makes reference to the earlier decision of Swift J. in R (HAM) v London Borough of Brent [2022] EWHC 1924 (Admin) where he had indicated at [20] that there is no “one size fits all approach that requires an appropriate adult to be present whenever an ae assessment interview takes place”. He makes reference to the ADCS Guidance which advises that there should be an opportunity to request an appropriate adult but concludes that:
I do not consider this professional guidance to be sufficient to give rise to a legal requirement that an appropriate adult must be present. Whether or not fairness requires the presence of an appropriate adult should depend on the circumstance of a case; what needs to be considered is the functional importance of the opportunity to have an appropriate adult present, in the case in hand.
The Court of Appeal have endorsed this approach in the latest decision, where Laing LJ states at [90]:
The argument that the interview was unfair because there was no appropriate adult overlaps significantly, if not entirely, with the argument based on the absence of an interpreter. I consider that Swift J was right in HAM, having analysed the authorities, to say that there is no rule of law that a young person must have an appropriate adult in an age assessment interview. In particular, Z v Croydon is not a sound basis for any such supposed rule. All that this court could have decided in that case was that the absence of an appropriate adult was an arguable procedural lapse which made it appropriate to give permission to apply for judicial review in order for the merits of the age assessment to be considered at a substantive hearing. Whether an interview will be unfair if there is no appropriate adult will depend on a range of factors, which will vary from case to case. I also agree with Swift J that R ((ZS) Afghanistan) v Secretary of State for the Home Department is not binding on this point. In this case, for reasons similar to the reasons which the social workers gave to explain why they considered that they could interview R without an interpreter, they were also entitled to interview him without an appropriate adult. The Judge was wrong to substitute his own view and to decide otherwise.
The decision of the Court of Appeal in SB provides some comfort to hard-pressed local authorities. It recognises the skills and expertise of social workers in making a judgment call as to whether an appropriate adult is required in any given case. It is clear, however, that this case was decided on its specific facts, and the same can be expected when this case is being followed in the future. In addition, there remains a significant body of case-law which leans in favour of an appropriate adult being present, or at least offered. For both of these reasons, there is no doubt that challenges will continue to be made in cases where local authorities have not exercised extreme caution in this area.
A further aspect of the decision of the Court of Appeal, which may provide greater certainty in the future, is that Laing LJ is critical of the move away, in certain cases, from the procedure outlined in R(A) v Croydon [2009] UKSC 8 in favour of a more traditional ‘judicial review’ approach of quashing decisions on the basis of procedural unfairness alone. In what must be read as a plea to return to the path set out by the Supreme Court, she summarises the correct approach at [86]:
It might be useful if, in future cases, the Administrative Court were expressly to consider whether there is, in each case, a good reason to hive off a procedural challenge. It seems to me that there will be cases in which such a division is likely to add to costs and delay in the litigation, for no evident benefit. As this court realised in Z v Croydon, an arguable procedural lapse may support an application for permission to apply for judicial review, but once permission to apply has been granted, it is unlikely to play a significant part in the court's decision, based on all the evidence, about the claimant's actual age, which is the court's real job in these cases. Once permission to apply for judicial review has been granted, it seems to me that the norm should be that the whole case is transferred to the UT, for the UT to consider any procedural challenges in the context of its decision on the merits.
Sally Gore is a barrister at Fenners Chambers.
