Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
(Court of Appeal; Rix, Dyson and Wilson LJJ; 10 February 2009)
The young person from Pakistan arrived in the UK illegally and with a false passport; he sought asylum, claiming to be 15 years old. The local authority conducted an age assessment, concluding that he was 18 years old, and that was therefore not a child in need. The young person was referred to the relevant government agencies, and was accommodated in adult detention centres. An immigration judge subsequently accepted expert opinion stating that the child was 15 years old. A dispute arose as to whether the age reassessment that was now necessary should be conducted by the original local authority, or by a second local authority, that is the local authority in whose area the detention centre lay. The dispute was not resolved, but the second local authority, in whose area the young person had been living, taking note of the young person's expressed wish to return to the original local authority area, paid for him to do so. The original local authority, without conducting another age assessment, and without accepting that the young person was a child in need, maintained and accommodated the young person. The original authority issued judicial review proceedings, seeking a declaration that the second local authority was under a statutory duty to conduct an age assessment, and to provide accommodation pending such an assessment and a mandatory order requiring the second authority to do so. The judge considered that the original authority was now under a duty to the young person.
The court allowed the appeal of the original authority. The second authority had become responsible for the young person when he was discharged within their area. The second authority had not discharged its duty under s 20; it had not considered the young person's welfare needs or made any assessment of his needs, it had merely consulted his wishes, which were to be given 'due consideration' under s 20, but which were not determinative. A local authority should reach the conclusion that the child's wishes were decisive only as part of an overall judgment including an assessment of the child's welfare needs, and the type and location of accommodation that would meet those needs. This had not been a proper discharge of the s 20 duty, and amounted to a failure to perform the duty at all. The second authority was to undertake an age assessment and, if it decided that the young person was a child, was to provide accommodation, which could be, as at present, with a foster parent in the area of the first authority. The question as to whether it was possible for two local authorities to have a concurrent duty towards a child remained open.