MS, R (on the application of) v Kent County Council

At an interim stage in an age-assessment challenge, the claimant need only show a real, rather than fanciful, prospect of establishing the relevant factual case. The court must then assess the balance of convenience, including the public interest and the risk of injustice to both sides.

Where the claimant may qualify for leaving-care support, the issue is the arguability of entitlement to that support, rather than whether the claimant can establish the precise date of birth asserted. Support under section 23C of the Children Act 1989 is not displaced by the availability of asylum support. Specific vulnerability is not a precondition, although evidence of vulnerability strengthens the case for relief.

MS, an Afghan national who entered the United Kingdom unaccompanied, challenged Kent County Council’s age assessment. Kent assessed him as an adult with a presumed date of birth in October 2000, whereas MS claimed to have been born in October 2006. He relied particularly on an Afghan tazkira and later supplied evidence concerning its authenticity.

Pending Kent’s review of the new evidence, MS sought interim relief requiring the council to treat him in accordance with his claimed age. By the hearing, even on MS’s case, he had reached 18. The central issue was therefore whether he had an arguable entitlement to continuing support as a former looked-after child under section 23C of the Children Act 1989.

1. Interim relief. The court granted interim relief and ordered Kent to treat MS in accordance with his claimed age under the Children Act 1989 pending determination of his age or further order. The judicial review proceedings were stayed while Kent reviewed the new evidence.
2. For an age-assessment challenge based on factual error, permission will normally be appropriate where the evidence, taken at its highest, raises a factual case that could properly succeed at a contested hearing. For interim relief, the claimant must show a serious issue to be tried, meaning a real prospect of success. The court must then assess the balance of convenience, taking account of both private interests and the wider public interest and selecting the course offering the best prospect of avoiding or minimising injustice.
3. The relevant arguable issue was not whether MS could prove the precise date of birth claimed, or that Kent’s assessment was wrong in every respect. It was whether he had an arguable case that he was born no earlier than 29 June 2005 and therefore qualified for support under section 23C. The genuine tazkira evidence, supporting hearsay, earlier age observations, and evidence concerning MS’s vulnerability together made that issue arguable.
4. The statutory duties under section 23C included keeping in touch, continuing the appointment of a personal adviser, reviewing the pathway plan, and providing assistance, including financial assistance and accommodation, as required by welfare or educational and training needs. As explained in R (SO) v London Borough of Barking & Dagenham [2010] EWCA Civ 1101, asylum support did not relieve the council of those duties.
5. Specific vulnerability was not a precondition to interim relief, although evidence of particular vulnerability made the case more compelling. The balance favoured relief because the possible injustice to MS from being denied arguably important leaving-care support outweighed the council’s resource concerns. The order was subject to liberty to apply after completion of Kent’s review.
6. Permission to apply for judicial review was not granted at this stage. The proceedings were stayed pending the council’s review.

First-instance judicial review proceedings in the High Court (Administrative Court). No prior appellate decision is stated in the judgment.