ZHB, R (on the application of) v The City and County of Cardiff Council

In an age-assessment judicial review, the court must distinguish a factual challenge to age from a conventional public-law challenge. Permission should be granted only if the claimant’s factual case, taken at its highest, could properly succeed at a contested factual hearing.

Convention arguments under Article 8 and the Human Rights Act 1998 must be assessed in their statutory and regulatory context. In Wales, compliance with the Social Services and Well-being (Wales) Act 2014 and the Welsh Government’s age-assessment guidance, together with legal representation for the asylum claim, an appropriate adult and independent advocacy during the assessment, was sufficient to make the claim unarguable on the facts.

The claimant, who maintained that he was under 18 when assessed, challenged Cardiff Council’s October 2023 age assessment, which concluded that he was an adult. He argued that the assessment was unlawful at common law and incompatible with Article 8 rights under the Human Rights Act 1998, because he lacked a legal representative or guardian during the assessment.

Permission had been refused on the papers. On renewal, the central issues were whether the Convention and Welsh statutory framework required additional procedural safeguards, and whether the claimant’s factual case, taken at its highest, could properly succeed at a contested hearing.

1. Permission refused. The claimant’s renewed application for permission to apply for judicial review was dismissed.
2. The age assessment had to be considered in the context of the Welsh statutory framework and guidance. Under section 7(2) of the Social Services and Well-being (Wales) Act 2014, a person exercising functions under the Act in relation to specified children must have due regard to Part 1 of the United Nations Convention on the Rights of the Child.
3. The defendant’s social workers had acted in accordance with the 2014 Act and the Welsh Government’s Unaccompanied Asylum-Seeking Children: Age Assessment Toolkit (2021). The claimant had legal representation concerning his asylum claim, an appropriate adult during the age assessment, an independent NYAS advocate, opportunities for private discussions and opportunities to raise concerns with his legal representative.
4. The court was not persuaded that Article 8 or the UNCRC required more than those safeguards in the context of Welsh legislation and guidance. The European Court of Human Rights’ observations in Darboe and Camara v Italy, 5797/17 (21 July 2022), did not make the present claim arguable in that context.
5. The remaining question was whether the evidence, taken at its highest, disclosed a factual case capable of succeeding at a contested hearing. It did not. The assessment relied on the claimant’s account, prior statements, social interaction, appearance, mannerisms and behaviour, and the factual challenge could not properly succeed.

Counsel were directed to file an agreed draft order, with written submissions on any consequential matter that could not be agreed.

Permission to apply for judicial review was initially refused on the papers by HHJ Lambert. The claimant renewed the application orally before HHJ Jarman KC sitting as a judge of the High Court. The renewed application was refused.