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Age disputes and leaving care obligations

RCJ portrait 146x219The Court of Appeal has considered local authorities’ obligations to migrant children and young persons turning 18, in the context of age disputes. Eirwen Pierrot reports.

In GE (Eritrea) v the Secretary of State for the Home Department and Bedford Borough Council [2014] EWCA Civ 1490 the Court of Appeal confirmed that if accommodation has not, as a matter of fact, been provided to the child under section 20 of the Children Act 1989 (“the Act”), then the young person cannot be classified as a “former relevant child” and there is therefore no obligation on the local authority to provide him or her with associated services. If the young person was provided accommodation by NASS, rather than by the local authority, that accommodation cannot be regarded as having been provided pursuant to section 20.

However, the Court of Appeal went on to say that if the failure of the local authority to provide accommodation under section 20 resulted from an incorrect assessment of a child's age, and such an error came to light after the child had turned 18, the local authority could legitimately be asked to exercise its discretion to provide assistance in the form of some or all of the support available under section 23C, which it would otherwise have been obliged to provide.


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The claimant, GE, was a national of Eritrea. She had arrived in the UK in 2011 and claimed asylum. At her screening interview she told officials she was 16 ½ but owing to her physical appearance and demeanour the Home Office suggested she was over 18. She was detained at Yarls Wood and her asylum claim was refused. 

GE issued judicial review proceedings challenging the Secretary of State’s treatment of her as an adult, her detention, and her proposed removal. Her solicitors wrote to the local authority asserting she was a child in need. The local authority carried out an age assessment of GE. The independent social work assessment concluded that GE was 21 years old.

GE applied for interim relief and Thirlwall J ordered GE’s release from detention. She also ordered that the Secretary of State provide GE with NASS support and accommodation. On GE’s application, the local authority was joined to the judicial review proceedings as the second defendant.  

By the time of the permission hearing on 5 December 2012, GE had turned, on her account, 18. The issue was therefore whether the local authority owed her duties as a “former relevant child” under section 23C of the Children Act 1989.

The judge held that the council owed no duties to GE as a “former relevant child”, since, in order for her to be classified as such, it was necessary that she should in fact have been being looked after by the council when she attained the age of 18. She had not been so looked after. It was therefore unnecessary to decide the factual dispute as to GE’s age. GE appealed.

The Court of Appeal

Was GE a “former relevant child”?

The Court of Appeal reviewed sections 23, 23A, 23C, and paragraph 19B of Schedule 2 of the Children Act 1989, as well as the Care, Planning Placement and Care Review (England) Regulations 2010. It concluded that to be a former relevant child the claimant must fulfil one of two conditions. Either she must, whilst not being looked after by any local authority, nevertheless be a 16 or 17 year old who had been looked after by a local authority for at least 13 weeks in all between 14 and 18 in relation to whom the council was the last responsible authority (s.23C(1)(A)). Or, she must be being looked after by the council when 18 and before that had been looked after by a local authority for that period (s.23C(1B)). The statute does not say that someone is a former relevant child if he or she should have been looked after at the relevant time or for the requisite period.

Consistent with the previous authority, R (M) v Hammersmith & Fulham LBC [2008] 1 WLR 535, the Court of Appeal unanimously agreed that the question is not whether the local authority ought to have treated the claimant as a looked after child, but whether it in fact had done so. This is subject to the proviso that where a local authority has provided accommodation for a child, and the circumstances are such that they should have taken action under section 20 of the 1989 Act rather than under some other provision, the child is a looked after child.[1]

However, in GE’s case the issue of whether her accommodation had been provided pursuant to section 20 or not did not arise, as the local authority had at no time provided GE with any accommodation. The Court of Appeal therefore agreed with the judge at first instance that GE could not be classed as a former relevant child, even if she had entered the UK aged 16.

But what if the local authority’s age assessment was wrong?

The decision, though, did not end there. The Court, was concerned that GE’s age was an objective question of fact for which there is a right or wrong answer, to be determined, if necessary, by the court (R (A) v Croydon LBC [2009] LGR 24). Consequently, if GE’s account was truthful, and she had been just 16 when she arrived in the UK, then the local authority’s section 20 duty would have arisen then, even though the need to perform it may not have been apparent to the council until a much later date.

Should the local authority in those circumstances deem that accommodation was provided to GE pursuant to section 20 with the result that, on turning 18, she must be treated as a former relevant child? Christopher Clarke LJ, disapproving the decision of Thirlwall J in R (R) v London Borough of Croydon [2013] EWHC 4243, said no, that was not the right approach. That would be to stretch the definition of “former relevant child” beyond that already described above.

However, Christopher Clarke LJ was concerned that if it transpired that GE was in fact a child when she entered the UK and had therefore been wrongly deprived of various entitlements, “the possible need to remedy any injustice should be addressed.” He therefore concluded, Davies LJ agreeing, that a local authority may exercise its discretionary powers to make good any unlawfulness it has committed in the past “and may, in some circumstances, be obliged to do so.” The circumstances in which it will be so obliged will depend on the facts of the case:

“There is no general rule that, wherever it has acted unlawfully, a local authority must unto its past errors to the fullest extent that it can. Much will depend on the circumstances, including whether or not the claimant has sought interim relief and been refused, whether he was guilty of unacceptable delay, and whether and to what extent the authority or the claimant should be regarded as blameworthy. There may be countervailing considerations of public interest which would entitle it to refuse any relief at all. It may be relevant to consider what other remedies are open to the claimant. The matter would be one for the discretion of the local authority, to be determined in the light of whatever application is made and in the circumstances applying when it is invoked.”

The Court therefore ordered that the matter be referred back to the Administrative Court in order that it may determine GE’s age.


When dealing with migrant children and young people turning 18, or whose age is in dispute, local authorities should bear the following in mind:

  • A young person cannot be a former relevant child unless they have actually been provided with accommodation pursuant to section 20.
  • However, the Courts will scrutinise any claim by the local authority that accommodation has not been so provided to ensure that it is not trying to side-step its Children Act obligations by artificially claiming accommodation has been provided pursuant to another statutory provision.
  • If at a later date it transpires that the young person was under 18 and that the local authority therefore should have provided the child with section 20 accommodation, the local authority has a discretion to treat that young person as if they had been a former relevant child.
  • Whether or not the local authority exercises that discretion will depend on the facts of the case but that decision will also be amenable to judicial review and should therefore be carefully considered, and the decision properly recorded.

Eirwen Pierrot is a pupil barrister at Field Court Chambers.

[1] For further analysis of the circumstances in which a child will be deemed to have been accommodated under section 20 see my previous article on Local Government Lawyer.

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