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

In an age-assessment judicial review, interim accommodation under section 20 of the Children Act 1989 is not subject to an automatic requirement that the claimant establish a strong prima facie case merely because the relief is mandatory. The court should apply the ordinary interim-injunction principles and assess the balance of convenience, including the merits, the risk of irremediable prejudice, the public interest and the risks of wrongly treating an adult as a child or a child as an adult. The protective precautionary approach is relevant, but it does not predetermine the outcome or require the court to assume that the claimant is a child. The particular evidence and risks must be assessed. On the facts, interim relief was maintained.

The claimant, a Syrian national asserting that he was aged 17, challenged the defendant local authority’s age assessment, which treated him as an adult. On 20 January 2023, HHJ Davies ordered the defendant to provide accommodation and support under section 20 of the Children Act 1989 pending determination of the judicial review. The defendant applied to set aside that order. The claimant cross-applied to enforce it but did not pursue that application once the set-aside application was determined.

The central issues were whether the defendant could apply to set aside the order, whether an enhanced merits threshold applied to mandatory interim relief in an age-assessment case, and where the balance of convenience lay.

1. Application to set aside. The defendant was permitted to make the application. The order did not impose an express or implied sanction for making the application on the fourth working day, although promptness could be relevant to the court’s discretion.
2. Procedural matters. The defendant’s failure to provide a properly ordered bundle was criticised. The claimant’s English-language witness statement did not comply with Practice Direction 32 and was subject to the sanction in CPR 32.8, but reliance on it was permitted because the translation certificate showed that the claimant had understood and approved its contents and exclusion would be artificial and inconsistent with the overriding objective.
3. Interim-relief test. The starting point was the three-stage approach in American Cyanamid v Ethicon [1975] AC 396: a serious issue to be tried, adequacy of damages, and the balance of convenience. In public-law cases, damages would commonly be inadequate for either side. The court should therefore examine the likely irremediable prejudice resulting from granting or refusing relief, without treating the distinction between prohibitory and mandatory injunctions as determinative.
4. The court was not bound in an age-assessment case to apply the strong prima facie case threshold discussed in De Falco v Crawley BC [1980] QB 460 and Francis v Kensington and Chelsea RLBC [2003] EWCA Civ 443; [2003] 1 WLR 2248. The flexible approach in AS v Liverpool City Council [2020] EWHC 3531 (Admin) and R (AXA) v London Borough of Hackney [2021] EWHC 1345 was preferred.
5. The protective precautionary approach is a relevant factor. It requires attention to the consequences if the claimant is ultimately found to be a child, but it does not presuppose that conclusion. The court must also consider the risk of wrongly housing an adult with vulnerable children. Neither direction of error is inherently preferable in every case.
6. Although the claimant’s case was arguable and finely balanced on the merits, evidence of his vulnerability, the absence of a specific demonstrated risk to other children, and the limited additional resource consequence favoured interim relief. The order of HHJ Davies was therefore not set aside. The claimant was awarded costs in the case.

The judgment concerned an application to set aside an interim order made in the same proceedings by HHJ Davies on 20 January 2023. The order requiring accommodation and support under section 20 of the Children Act 1989 was maintained.