ZHB v Cardiff City Council

Article 8 applies to age-assessment processes because age forms part of personal identity and determines access to rights associated with minority. Public authorities must take reasonable steps, with reasonable diligence, to provide sufficient procedural safeguards and must enable informed participation. The safeguards required are fact-sensitive. Informed participation is a universal minimum standard, but appointment of a guardian and access to legal advice are not automatic requirements in every case. The authority has a margin of appreciation in selecting appropriate safeguards. A local authority age assessment in Wales is conducted under the age-assessment regime in the Nationality and Borders Act 2022, rather than under the childcare legislation. The duty to have due regard to the CRC therefore does not apply to the assessment itself. In any event, the safeguards provided substantially complied with the relevant principles.

The claimant, an Iranian national who had claimed to be a child, challenged an age assessment by Cardiff City Council which concluded that he was an adult. The Council had initially accommodated and supported him as a looked-after child, then conducted a four-session assessment with two social workers, an interpreter and an independent Appropriate Adult.

Ground 1 alleged breach of Article 8 ECHR because no guardian or legal representative was appointed, the claimant lacked legal representation during interviews and he was not given adequate access to legal advice or informed participation. Ground 2 alleged breach of s. 7(2) of the Social Services and Well-being (Wales) Act 2014 through failure to have due regard to Part 1 of the CRC. The claimant sought declaratory and quashing relief. The central issues were the procedural safeguards required by Article 8 and whether the statutory CRC duty applied to, or was complied with during, the assessment.

1. Ground 1 dismissed. Article 8 positive obligations applied to the assessment. The Council had to take reasonable steps and act with reasonable diligence to secure sufficient procedural safeguards. The assessment was fact-sensitive, and the State retained a margin of appreciation in choosing the means of compliance.
2. The safeguards identified in Darboe v Italy did not establish an inflexible requirement that every age assessment involve a state-appointed guardian, a lawyer attending the interviews and a particular form of representation. Informed participation was a universal minimum requirement. The need for a guardian or legal advice depended on the circumstances.
3. The Council had treated the claimant as a child before and during the assessment, provided accommodation and social-work support, supplied an interpreter, and arranged an independent Appropriate Adult whose functions included explaining the process, facilitating communication and challenging unfairness. The claimant understood the process and could obtain legal advice from his asylum solicitors. He had not requested legal advice, and the absence of a guardian or lawyer caused no discernible prejudice. Even if the earlier Home Office and Conwy assessments had defects, they had little weight and the Council’s assessment was reached independently.
4. Ground 2 dismissed. The claimant fell within the class protected by s. 7(2) of the Social Services and Well-being (Wales) Act 2014 while being accommodated as a looked-after child. However, the age assessment itself was a function under s. 50 of the Nationality and Borders Act 2022. The Council was therefore not exercising functions under the 2014 Act when deciding the procedural safeguards for that assessment.
5. The CRC duty did not require a local authority to determine and apply the non-binding views or guidance of the Committee on the Rights of the Child. The Council would nevertheless have complied in substance if the duty applied: it followed Welsh Government guidance referring to the CRC, preserved the claimant’s presumed minority, and enabled informed participation through advocacy and interpretation. The claim was dismissed.

The judgment does not state a prior merits decision. Permission to proceed on Grounds 1 and 2 was granted by the Court of Appeal; permission for a proposed challenge to the correctness of the age assessment was refused.