No Bare Declarators of Age and No Enforceable Right to Accommodation under s25(3): Clarifying Age‑Assessment Litigation in Scotland

Introduction

In AN v Renfrewshire Council and others [2025] CSOH 89, Lord Lake (Outer House, Court of Session) dismissed an ordinary action brought by a Vietnamese national who disputed a local authority age assessment that placed her as an adult. The pursuer sought three declarators: (1) a declaration contra mundum of her date of birth (28 October 2006), (2) that she was entitled to be accommodated by the local authority under section 25(3) of the Children (Scotland) Act 1995, and (3) that she was entitled to seek “support” from the authority under that provision. An interim declarator had earlier been refused as incompetent. The defenders moved to dismiss on grounds of competency, relevancy, precision, and academicity.

The judgment squarely addresses vital procedural and substantive questions at the intersection of Scottish civil procedure, local authority duties to children and care leavers, and the evolving landscape of age assessments following the Nationality and Borders Act 2022. In doing so, it clarifies when a court can entertain a declarator of age, the limited effects of declarators in ordinary actions, and the nature of local authority powers under section 25(3).

Key issues

Whether a bare declarator of age (a declaration of fact) is competent and relevant in an ordinary action without a coupled declaration of rights or practical effect.
Whether section 25(3) of the 1995 Act creates an enforceable entitlement to accommodation or only confers a discretion.
Whether the court’s determination of age usurps the National Age Assessment Board (NAAB) under section 50 of the Nationality and Borders Act 2022.
Whether the action was academic given the pursuer’s age and current accommodation.
The proper procedural forum (ordinary action vs supervisory jurisdiction) and whether exhaustion of alternative remedies was required.

Summary of the Judgment

Lord Lake dismissed the action on grounds of relevancy, competency, and because the orders sought were academic.

Second conclusion (entitlement to accommodation under s25(3)): Irrelevant and incompetent. Section 25(3) confers a discretionary power to provide accommodation to persons aged 18–21 if necessary to safeguard or promote welfare; it does not create a right or entitlement. The court cannot “innovate” upon the statute to convert a discretion into a duty.
Third conclusion (entitlement to seek support under s25(3)): Irrelevant and insufficiently precise. Section 25(3) concerns “accommodation,” not a general power to provide “support,” and the conclusion lacked the precision required for declarator.
First conclusion (declarator of date of birth contra mundum): A bare declarator of fact is not competent unless it serves a practical purpose tied to legal rights. Declarators in ordinary actions bind only the parties, not the world at large; the pursuer showed no practical consequence of such a declaration in her relationship with the defenders.
Supervisory jurisdiction and NAAB: This case proceeded as an ordinary action; the supervisory jurisdiction was not engaged and there was no requirement to exhaust alternative remedies. Determining age in litigation about statutory entitlements does not usurp the NAAB, and in any event, the NAAB route was not available on these facts.
Academic relief: The pursuer was already accommodated and did not aver that accommodation would be different if the declarator were granted; any practical consequence was speculative. The claims were therefore academic.

Analysis

Precedents Cited and Their Influence

The decision is anchored in classic Scottish authorities on declarator, more recent case law on practicality and academicity, and modern public law and child care jurisprudence.

Gifford v Trail (1829) 7 S 854; Lyle v Balfour (1830) 9 S 22; Sinclair Lockhart’s Trustees v Central Land Board 1951 SLT 258; Imre v Mitchell 1958 SC 439. These cases set the baseline: declarators are instruments for declaring rights, not bare facts; courts do not grant declarations of mere states of fact absent a consequent legal right. Lord Lake confirms these authorities “remain good law,” and uses them to reject an isolated declarator of date of birth.
Keatings v Advocate General for Scotland 2021 SC 329 (Inner House). Keatings refined the doctrine for “bare declarators” in modern public law: a declaration must have a purpose and produce a practical result. Although Keatings concerned questions of constitutional competence rather than fact, Lord Lake deploys its practicality requirement. On these facts, a declaration of age would not practically change the pursuer’s legal position with the defenders.
Aberdeen Development Co v Mackie, Ramsay & Taylor 1977 SLT 177. A declarator must be precise and unambiguous. The pursuer’s third conclusion (“support”) failed this test and misapprehended the scope of s25(3), which is about accommodation.
Clarke v Fennoscandia No. 3 2005 SLT 511. Declarations that produce no legal consequence are incompetent. This principle supported the conclusion that, even if granted, the orders sought would not change the pursuer’s position vis-à-vis the defenders.
Hooley v Ganges Jute Private Ltd 2019 SC 632. The defenders invoked Hooley to argue that ordinary actions are designed to resolve rights between the parties, while “contra mundum” determinations should proceed by petition. Lord Lake clarifies that declarators in ordinary actions bind only the parties and so the “proper contradictor” objection carries little weight—but this same feature undermines the pursuer’s claim of wider utility.
Macnaughton v Macnaughton’s Trustee 1953 SC 387; Keatings (again); R (SB) v Kensington & Chelsea RLBC [2024] 1 WLR 2613; Ibrahimi v Glasgow City Council [2025] CSOH 14. These authorities emphasize that courts avoid hypothetical, premature, or academic questions. R (SB) (cited in Ibrahimi) influenced the court’s insistence on an actual, live dispute with practical effect; a future or speculative dispute is not enough.
R (A) v Croydon LBC [2009] UKSC 8. Croydon is frequently invoked to justify court determination of age as a “precedent fact.” Lord Lake accepts that age may be determined judicially when it is a necessary predicate to deciding a right (e.g., entitlement to accommodation). But Croydon does not license a freestanding age declarator divorced from a concrete right or practical consequence, and its English public law context is not directly coextensive with Scots supervisory jurisdiction.
R (GE (Eritrea)) v Secretary of State for the Home Department [2015] 1 WLR 4123. GE (Eritrea) is used to resist the argument that a council must retrospectively confer the full suite of benefits as though past wrongs never occurred. The Court of Appeal drew a careful line between “deeming” someone to meet a statutory definition (impermissible) and treating someone “as if” they did for discretionary remedial purposes. Lord Lake applies this to hold that the pursuer cannot turn s25(3)’s discretion into a duty through litigation absent exceptional averments.
Esso Petroleum Co Ltd v Law 1956 SC 33. A decree in absence will not establish res judicata. This matters because naming the Home Secretary “for any interest she may have” would not, by itself, produce a binding determination across government functions.
AXA General Insurance v Lord Advocate [2011] CSIH 31 (and on appeal). Cited by the defenders on anticipatory declarators and urgency. Lord Lake does not hinge his disposal on this point, but the case underpins the general reluctance to issue abstract declarations absent pressing necessity.

Legal Reasoning

1) Ordinary action, not supervisory jurisdiction

The pursuer framed the case as an ordinary action. Lord Lake confirms that the Court’s supervisory jurisdiction is not engaged and therefore the “no alternative remedy” rule does not apply. This matters for two reasons:

The action is judged by ordinary action doctrine on declarators (competency, relevancy, precision, utility), not by supervisory review principles.
Referral to the NAAB under section 50 of the Nationality and Borders Act 2022 is not a prerequisite to the present claim, though its availability (or not) is relevant contextually.

2) Declarators must match statutory architecture

The second and third conclusions conflict with the statutory scheme:

Section 25(3) is discretionary: The text—“A local authority may provide accommodation…”—cannot be judicially recast as “must provide.” A declarator that the pursuer “is entitled to be accommodated” would substitute a duty for a power, which the court cannot do without “innovating” on the statute.
“Support” is not in s25(3): The provision speaks of “accommodation,” with the welfare test guiding the exercise of that power. A declarator asserting a general entitlement to “support” under s25(3) overreaches and is too imprecise to meet the exacting standard for declarator.

3) Bare declarator of age—no practical effect, no grant

While the court accepts that age can be a jurisdictional or “precedent” fact that a court must determine when deciding substantive rights (per Croydon), it refuses a freestanding declarator of age divorced from any concrete entitlement or practical effect:

Effect of ordinary declarators: They bind only the parties, not the world. The court explicitly rejects the idea that granting the first conclusion would produce a determination contra mundum.
No present practical consequence: The pursuer is already accommodated; no case is pled that her accommodation or other entitlements would change if her date of birth were declared. The possibility of future disputes is speculative and insufficient.
Precision and purpose: Following Keatings and Aberdeen Development, a declarator must be precise and purposeful, producing a concrete legal effect for the pursuer. The first conclusion does not meet that test.

4) Past unlawfulness does not compel a duty where statute confers discretion

Relying on GE (Eritrea), the court recognizes that local authorities may use discretionary powers to ameliorate past unlawfulness, but there is no general rule compelling them to undo past errors “to the fullest extent.” Absent averments that only one reasonable exercise of discretion exists (e.g., that accommodation is the only rational outcome), the court will not convert a discretionary power into an enforceable duty.

5) NAAB and the court’s role

The court does not usurp the NAAB. Lord Lake draws two important lines:

Distinct spheres: The court’s determination of age in the course of deciding a concrete claim for statutory benefits has limited inter partes effect; it does not replace the NAAB’s role as designed by Parliament.
Practical availability: On these facts, the NAAB route was not practically open (the local authority had already assessed age), and in any event the absence of NAAB referral does not bar an ordinary action.

6) Academic relief

Drawing on Macnaughton, Keatings, and R (SB), the court declines to resolve questions that are hypothetical or academic. The pursuer’s accommodation would not change; the only difference would be who pays. That is not enough.

Impact

The judgment is a significant restatement—tailored to the modern age‑assessment context—of classic principles on declarator and their practical limits in Scotland.

For litigants challenging age assessments:
- A freestanding declarator of date of birth in an ordinary action will not be granted unless it is coupled with, and necessary to determine, an actual legal entitlement with practical consequences.
- Frame conclusions to reflect the statute: under s25(3), seek a declaration that the authority is obliged to consider provision of accommodation, or that accommodation must be provided where no other rational outcome exists. Do not plead an “entitlement” to accommodation under s25(3).
- Be precise: if “support” is sought, identify the statutory source (e.g., Social Work (Scotland) Act 1968 s12) and tether it to concrete facts and outcomes.
- Act promptly and seek interim orders where appropriate; delay that renders a claim academic (e.g., reaching 18) will be fatal unless real practical effects remain.
For local authorities:
- Section 25(3) remains a discretionary tool—not a duty—that must be exercised by reference to welfare. The court will not convert it into an entitlement absent narrow circumstances where only one rational outcome exists.
- Past unlawful treatment does not automatically compel a duty to grant all benefits retrospectively; discretion remains, though it must be exercised lawfully and reasonably.
For public law practice in Scotland:
- The decision re‑aligns age‑assessment litigation with orthodox declarator doctrine, tempering readings of recent Outer House cases (e.g., Abdullah and Ahmat) that might be taken to permit standalone age declarators.
- Ordinary actions are available without exhausting alternatives, but supervisory jurisdiction principles are not thereby imported. Practitioners must choose the forum and remedies carefully.
- Declarators in ordinary actions bind only the parties; a perceived “contra mundum” benefit is illusory. That reality both defeats “no proper contradictor” objections and undermines claims of wider systemic effect.
Policy perspective: The judgment closes by echoing longstanding concerns (dating back at least to Ward LJ in Croydon CA) about the lack of a single, authoritative, and accessible mechanism to fix age definitively. Despite the NAAB, gaps remain, and inconsistent decisions are possible. Legislative refinement may be warranted.

Complex Concepts Simplified

Declarator: A court order stating what the law or legal position is. In Scotland, declarators are meant to determine rights or obligations, not merely record facts. A “bare declarator” is one that is not tied to any practical right or remedy.
Competency vs relevancy: Competency concerns whether the type of order sought is one the court can lawfully grant; relevancy concerns whether the pleadings disclose a sound legal basis for the remedy sought. Imprecise or statute‑conflicting conclusions can fail on both.
Contra mundum: “Against the world.” A common misconception is that a declarator in an ordinary action binds everyone; it does not. It binds only the parties (and only affords res judicata where the point was actually contested and decided).
Res judicata: A matter finally decided between the same parties (or their privies) cannot be re‑litigated. A decree in absence will not create res judicata.
Precedent (jurisdictional) fact: A fact that must be determined before a public law power or duty can lawfully be exercised—such as whether someone is a “child” for the purposes of a statutory entitlement. Courts can determine such facts when necessary to decide rights.
Academic proceedings: Courts generally refuse to decide hypothetical or moot questions. There must be a live practical issue whose resolution will materially affect the parties’ rights or duties.
Section 25 Children (Scotland) Act 1995:
- s25(1): imposes duties in respect of children (under 18) in need of accommodation.
- s25(3): confers a discretionary power to provide accommodation to those aged 18–21 if needed for their welfare. It does not itself create a general power to provide “support.”
NAAB (Nationality and Borders Act 2022, s50): A statutory mechanism for binding age determinations on referral in prescribed circumstances. The court clarifies that judicial decisions on age in ordinary actions do not usurp the NAAB, and that NAAB referral may be unavailable after a local authority has already conducted an assessment.
“As if” vs “deemed to be” (GE (Eritrea)): Courts cannot deem someone to meet a statutory definition contrary to the statute. They may, however, expect authorities to consider using discretion to treat someone “as if” they did, in order to mitigate past unlawfulness—subject to the usual public law limits and countervailing considerations.

Conclusion

AN v Renfrewshire Council delivers a clear and practically important re‑statement of Scottish law on declarators in the age‑assessment context:

A bare declarator of age, sought in an ordinary action without a linked right or practical consequence, is not grantable. Declarators must be purposeful and precise.
Section 25(3) of the Children (Scotland) Act 1995 confers a discretion, not an entitlement; courts will not innovate to transform discretionary powers into duties.
Orders sought must mirror the statute’s language and structure. A general claim to “support” under s25(3) is misconceived and insufficiently specific.
Courts can determine age as a precedent fact when deciding rights, but that does not justify freestanding age declarators. Nor does it usurp the NAAB’s role.
Actions that would produce no practical change for the parties will be treated as academic and dismissed.

The judgment provides valuable guidance for structuring litigation over age assessments in Scotland: plead your age case as part of a rights‑based claim that will have concrete effects if you succeed; tie your conclusions to the statute; and, where discretion exists, either ask the court to compel consideration or demonstrate that one rational outcome (e.g., accommodation) is the only lawful result. More broadly, Lord Lake’s closing observations underscore a systemic gap: despite the NAAB, individuals without documents remain trapped in a procedural maze. Legislative or policy reform may be needed to create a single, authoritative pathway to a binding determination of age.