Liverpool City Council, R (on the application of) v Khan

A local authority’s duties under the Children Act 1989 are primarily connected with the child’s physical presence within its area. More than one authority may owe duties at the same time. The existence of another potentially responsible authority does not relieve the authority in whose area a putative child is present of the duty to provide accommodation where the statutory conditions are met. Pending resolution of a genuine age dispute, a child should be accommodated as a child while the necessary assessment is completed. A local authority receiving a referral cannot confine its role to assisting another authority with the logistics of assessment.

The claimant local authority challenged the responsibility of the defendant local authority for accommodating AK, an unaccompanied asylum seeker whose age was disputed. The claimant had initially assessed AK as an adult. After his removal to adult immigration detention, he was released into the defendant’s area, where the defendant temporarily accommodated him. AK was then taken to the claimant’s area at his request.

The issues included whether either authority’s responsibility had ceased or revived, whether there had been an agreement transferring responsibility, whether an inter-authority protocol applied, whether both authorities could be responsible, and whether AK should be accommodated as an adult or a child pending further assessment.

1. Responsibility based on physical presence. The claimant’s initial responsibility ceased when AK was removed from its area. It did not revive merely because immigration authorities later treated him as a child. The defendant became responsible when AK was discharged and accommodated within its area.
2. The defendant’s responsibility ceased when AK returned to the claimant’s area. The defendant’s assistance with the journey did not alter that conclusion. There was no agreement that the claimant would accept responsibility; the communications provided only for very temporary accommodation pending resolution of the dispute.
3. The defendant was wrong to decline to undertake an assessment on the basis that the claimant, as the original assessing authority, should reassess AK. The protocol concerning conflicting local-authority assessments did not address these circumstances. The court applied the approach in R v Wandsworth LBC, ex parte Sandra Stewart [2001] EWHC Admin 709, namely that physical presence has a geographical meaning and may result in duties resting on more than one authority.
4. Alternatively, even if the defendant’s responsibility continued, the claimant also became responsible when AK was physically present within its area. A local authority cannot discharge its obligation merely by directing a putative child towards another authority which has not agreed to provide accommodation. AK required accommodation as a result of there being no person with parental responsibility for him, within section 20(1) of the Children Act 1989.
5. Pending completion of the further age assessment, AK was to be accommodated as a child. The claimant’s judicial review challenge was rejected. The court declined to order joint action or to require the defendant to act instead of the claimant, having regard particularly to AK’s wishes and interests.

First-instance judicial review decision. No prior appellate decision was stated in the judgment.