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

In deciding whether to grant interim mandatory relief in an age-assessment judicial review, the court applies the American Cyanamid approach. An arguable case and the inadequacy of damages may be sufficient to pass the threshold, but the claimant’s prospects remain relevant to the balance of convenience. No enhanced merits test is binding in an age-assessment case merely because the relief is mandatory. The court must also weigh the public interest, including the consequences of accommodating an adult with children, the diversion of local-authority resources, and the harm to a claimant wrongly accommodated as an adult.

The claimant, a Sudanese national claiming to be 17, challenged Liverpool City Council’s assessment that he was over 18. On 14 October 2022 the court granted permission on the precedent-fact ground and ordered the council to treat him as a child and provide support and suitable accommodation pending determination of the claim.

The council later applied to set aside the interim relief order after producing an Age Brief Enquiry Form and further evidence. The court considered whether the application was timely, whether the claimant could proceed without a litigation friend, and whether the interim order should be discharged in light of the fuller evidence.

1. The council’s application was made under the order’s general liberty to apply provision. It was not subject to the seven-day time limit in CPR 3.3, and no application for relief from sanction was required.

2. The court applied the three-stage approach in American Cyanamid v Ethicon: whether there was a serious issue to be tried, whether damages were an adequate remedy, and where the balance of convenience lay. The claimant satisfied the threshold because the judicial-review claim was arguable and damages would not adequately compensate the harm caused by refusal of relief.

3. The court declined to apply an enhanced merits test requiring a strong prima facie case. The authorities concerning interim housing duties arose in a different context, and the Court of Appeal in Nolson had expressly declined to resolve whether those authorities were correctly decided. The strength of the claim was nevertheless relevant to the balance of convenience.

4. A properly conducted age assessment by suitably qualified social workers was likely to be superior to an interlocutory assessment by the court. The fuller evidence disclosed substantial reasons for considering that the claimant was over 18, including significant inconsistencies, the absence of documentary or independent supporting evidence, and matters bearing on his reliability. His case was therefore not strong.

5. The balance of convenience favoured discharge. The public interest included the diversion of resources from children in need and the risk of accommodating an adult with vulnerable children. The claimant would remain housed at public expense if treated as an adult, and the evidence did not establish particular vulnerability making adult accommodation unacceptable.

6. The order of 14 October 2022 was discharged, but remained in force until 4 pm on 24 February 2023 to allow a phased transition. No order for costs was made.

This was a first-instance application by the defendant to vary or set aside the judge’s own order of 14 October 2022. The interim order was discharged with effect from 4 pm on 24 February 2023.