HJ v London Borough of Croydon

A local authority’s duty under Part III of the Children Act 1989 may be arguable where a person claiming to be a child in need is physically within its area. The possibility that an assessment may conclude that the person is an adult does not remove the duty to assess. More than one local authority may owe concurrent duties, and disputes about ordinary residence, transfer of responsibility or recoupment do not necessarily prevent those duties arising. A local authority cannot displace an arguable liability merely by relying on another authority’s age assessment. Procedurally, a party should not ordinarily be joined as a defendant where no relief is sought against it, although it may be joined as an interested party.

HJ, a Vietnamese national claiming to be an unaccompanied asylum-seeking child and possible trafficking victim, sought judicial review of the London Borough of Croydon’s refusal to assess her needs under the Children Act 1989. She was physically present in Croydon but had previously been assessed by social workers from the Royal Borough of Greenwich, who concluded that she was an adult. HJ alleged that the Greenwich assessment was not compliant with the guidance in R (B) v London Borough of Merton [2003] EWHC 1689 (Admin). Croydon relied on that assessment and argued that responsibility lay with Greenwich.

The issues included whether Croydon owed an arguable duty to assess, whether Greenwich should replace or join Croydon as defendant, and whether Greenwich should participate as an interested party.

1. Permission and assessment duty. Permission to proceed with judicial review was granted. If HJ was a child, there was at least an arguable case that she was a child in need physically within Croydon’s area. Section 17 and Schedule 2 of the Children Act 1989 therefore gave rise to an arguable duty to assess her needs. The possibility that the assessment might conclude that she was an adult did not prevent the duty to assess from arising.
2. Concurrent local-authority duties. R (HA) v LB Hillingdon [2012] EWHC 291 (Admin) supported the argument that both the first authority and a subsequent authority might owe concurrent duties. The court also regarded that approach as consistent with R (G) v Southwark LBC [2009] 1 WLR 1299. Questions concerning ordinary residence, transfer of responsibility and recoupment did not provide a complete answer to the arguable existence of concurrent duties.
3. Age assessment. Croydon was not entitled, at the permission stage, simply to rely on Greenwich’s conclusion that HJ was an adult. If Croydon conducted an assessment and HJ continued to dispute the conclusion, her age would have to be determined by the court. The judge indicated that transfer to the Upper Tribunal would then be appropriate, but made no final order on that issue.
4. Parties. Greenwich was not substituted as defendant because no liability had passed from Croydon to Greenwich. Greenwich was not added as a defendant because neither party sought relief against it. It was added as an interested party so that it could participate and be bound by the court’s decision.
5. Interim relief. Existing interim relief requiring Croydon to provide age-appropriate accommodation and support was continued. HJ’s vulnerability, the arguable statutory duty and the absence of relief sought against Greenwich justified continuation pending further order or trial.

The judgment records that Mrs Justice Steyn granted interim relief on 21 January 2020 requiring Croydon to provide age-appropriate accommodation and support. The present court granted permission for judicial review, continued the interim relief and added the Royal Borough of Greenwich as an interested party.