KA & Anor v London Borough of Croydon

A local authority may withdraw Children Act 1989 services when, following an age assessment, it decides that a young asylum seeker is an adult. The common law right of access to justice gives a person the right to challenge that decision and to apply for interim relief under the ordinary procedural and substantive rules. It does not give a right to continued support, or to notice before support is withdrawn, while the challenge is being prepared. An age assessment by a local authority is not a judgment in rem and does not itself engage article 8. If article 8 were engaged, immediate withdrawal could nevertheless be proportionate, having regard to safeguarding concerns, public resources and the authority’s assessment of entitlement.

The claimants were treated by the London Borough of Croydon as adults following age assessments, although they claimed to be unaccompanied child asylum seekers. The Council had provided accommodation and support under the Children Act 1989 while assessing their ages, but withdrew those services when it announced its decisions. One claimant received full reasons later than promised.

Following the grant of interim relief in each case, the claimants challenged the Council’s former policy or practice. They argued that immediate withdrawal was procedurally unfair, denied effective access to justice and interfered disproportionately with article 8 rights. The central issues were whether the Council had to give notice before withdrawing services and whether its practice was unlawful.

1. Outcome. Permission to apply for judicial review was granted in both claims, but both applications were dismissed.
2. The common law right of access to justice includes access to the courts to challenge an adverse public-law decision and the right to apply for interim relief. It does not protect against every temporary injustice caused by a decision later found to be wrong. The application for relief remains subject to the ordinary rules governing public-law injunctions and mandatory injunctions, including the principles discussed in R (Medical Justice) v Secretary of State for the Home Department, Smith v Inner London Education Authority and De Falco v Crawley Borough Council.
3. The law did not require the Council to maintain services for a short notice period, such as seven days, so that a claimant could seek interim relief while support continued. The evidence showed that claimants could apply for judicial review and interim relief. Any delay in obtaining legal aid and applying was part of the ordinary practical operation of access to justice, not an abrogation of that right.
4. Where an application for interim relief is made as soon as reasonably practicable, allowing for legal-aid delays, the relevant status quo will generally be the position before the impugned decision: namely, that the young person was receiving local-authority support. This observation was not necessary to the result.
5. Following A v Croydon London Borough Council, an age decision by a local authority is a public-law decision and is not a judgment in rem. It therefore does not itself engage article 8. The consequences of the decision could not be artificially separated from the decision for that purpose.
6. Alternatively, any interference with article 8 rights would have been proportionate under the approach in Bank Mellat v HM Treasury. The Council could adopt a general rule because accommodating a person assessed to be an adult with children raised safeguarding concerns. The Council’s financial interests and the absence of Home Office funding were also relevant. The right of access to justice did not require continued services unless a court ordered interim relief in the individual case.