Anonymised and Structured Summary of the Opinion (Outer House, Court of Session)

Factual and Procedural Background

This opinion concerned an ordinary action brought by the Pursuer, a national of Vietnam, challenging determinations about her date of birth and related entitlements from the local authority. The Pursuer arrived in the United Kingdom on 25 May 2023 and at that time claimed a date of birth of 28 October 2006 (which would have made her 16). An initial assessment on behalf of the Home Office identified a date of birth of 28 October 2000 (making her 22). The Pursuer sought an age assessment from the first defender (the local authority), which concluded that the Home Office date of 28 October 2000 was correct. The Pursuer challenged that conclusion.

The Pursuer's ordinary-action pleadings sought declarators that: (1) her date of birth is 28 October 2006; (2) on that basis she is entitled to be accommodated by the first defender under section 25(3) of the Children (Scotland) Act 1995; and (3) she is entitled to seek support from the first defender under the same statutory provision. She also sought a declarator ad interim that, for the purposes of the first defender's determination while the action is pending, her date of birth be treated as 28 October 2006 and that she be accommodated under section 25 of the Children (Scotland) Act 1995.

The motion for declarator ad interim was refused on the basis that it was not competent to grant such a declarator at an interim stage. The defenders applied to have the action dismissed on grounds of relevancy and/or competency. The Court (Judge Lake) heard submissions and delivered the opinion summarised below.

Legal Issues Presented

1. Whether an ordinary action (as opposed to petition/judicial review procedure) is a competent form of proceeding to seek the types of declarators claimed by the Pursuer (including a declarator of age).
2. Whether each of the declarators sought by the Pursuer is competent and relevant in its terms:
   1. a bare, contra mundum declarator of the Pursuer's date of birth;
   2. a declarator of an entitlement to accommodation under section 25(3) of the Children (Scotland) Act 1995;
   3. a declarator of an entitlement to "support" under section 25(3) of the Children (Scotland) Act 1995.
3. Whether the declarators sought are academic or premature (i.e., whether they would have any practical effect now).
4. Whether granting the declarator(s) would usurp or conflict with the statutory role of the National Age Assessment Board under the Nationality and Borders Act 2022, section 50, and whether the Pursuer had an alternative remedy.

Arguments of the Parties

Defenders' Arguments (First Defender: Company A; Second Defender: Company B)

• The defenders did not say that ordinary action is always incompetent for section 25(3) issues, but they challenged the competency and relevancy of the specific conclusions pleaded.
• The first declarator (date of birth contra mundum) is a bare declarator of fact and the court may grant declarators of right only; a contra mundum factual declarator is not competent in ordinary action. They relied on historical authority to support limits on bare declarators.
• The second and third conclusions innovate on the statutory language: section 25(3) confers a discretion to provide accommodation (not an entitlement), and subsection 3 specifically concerns accommodation rather than an open-ended entitlement to "support". Declaring an entitlement would remove the local authority's statutory discretion and is thus irrelevant/incompetent.
• The pleadings seek a declaration that would affect persons beyond the parties (contra mundum) and there are no proper contradictors; petition procedure would be the appropriate route where wider effects are sought.
• Granting the declarators could usurp Parliament's provision for the National Age Assessment Board to make binding determinations in specified circumstances.
• The third conclusion is impermissibly vague: an entitlement to "support" lacks sufficient particularity to be a competent declarator.
• Even if granted, the declarators would have no practical consequence for the Pursuer's present circumstances because the accommodation presently provided is not materially different from what would be provided under section 25(3); any entitlement to "seek" support does not guarantee receipt of support.
• The remedies sought may be academic or premature: the Pursuer is now over 18, so the section 25(1) child entitlement no longer applies and no application has even been made under section 25(3).
• The relief sought may be premature because the Pursuer had not exhausted (or could have pursued) the statutory pathway under the Nationality and Borders Act 2022, section 50 (a referral to the National Age Assessment Board), and the action should be stayed or dismissed until such alternatives are addressed.

Pursuer's Arguments

• The Pursuer chose to raise an ordinary action in light of recent case law (noted: a decision referred to as Abdullah) and because factual investigation was needed before the court could address the defenders' objections.
• Although the first declarator is a bare factual one and contra mundum, it was argued to be competent because it is not academic and has a practical purpose: to determine the Pursuer's rights and entitlements and to provide legal certainty.
• The Pursuer relied on authorities (including R(A) v Croydon) to support the proposition that a court may determine age as a jurisdictional/precedent fact and that a declarator of that fact is not unlawful in principle.
• In response to arguments about alternative remedies, the Pursuer said that (i) the Nationality and Borders Act 2022, section 50, does not allow her to require the local authority to make a referral to the National Age Assessment Board; and (ii) a referral could only be made before a local authority age assessment, which had already occurred here, so that route was not available to her.
• On the accommodation point, the Pursuer argued that if she had been treated as a child at an earlier date she would have had an entitlement under section 25(1) and related status with continuing consequences; the local authority should make good any prior unlawfulness and provide accommodation/support now to remedy past errors.
• The Pursuer argued that "support" in section 25(3) should be understood holistically and in light of other social work powers (including reference to the Social Work (Scotland) Act 1968), and that the practical package of assistance for an unaccompanied minor commonly involves more than simple hotel accommodation.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court's analysis proceeded in structured steps. The key steps, drawn from the opinion, are:

1. Form of proceedings and jurisdictional frame: The Court noted at the outset that this was an ordinary action and the supervisory jurisdiction of the Court of Session was not invoked. That fact affected the applicable tests (paragraph [16]). Because it was an ordinary action, the usual requirement to exhaust alternative remedies that applies to judicial review did not apply to the Pursuer.
2. Relevancy of the second and third conclusions: The Court held that a declarator that declares a legal entitlement must not innovate on statutory provisions. Section 25(3) of the Children (Scotland) Act 1995 confers a power on a local authority to provide accommodation to persons aged 18-20 if the authority considers it necessary to safeguard or promote welfare; it does not create a statutory entitlement. Consequently, a declarator that purports to create an entitlement to accommodation under section 25(3) would remove Parliament's conferred discretion and was therefore incompetent (paragraphs [17]–[18]).
3. Use of GE (Eritrea) to analyse remedial limits: The Court examined R (GE (Eritrea)) and explained the distinction between "deeming" someone to be within a statutory category (which the court cannot do in the face of a statutory definition) and treating someone "as if" they were in that category as part of a remedial exercise. The Court noted that treating a person "as if" may leave the local authority a discretion; only in extreme cases might the court effectively require the authority to treat someone as if they had a status that statutory definition would otherwise exclude. The Pursuer did not aver facts sufficient to show such an extreme case (paragraphs [18], [63]–[64]).
4. Interpretation of "support" in section 25(3): The Court accepted that safeguarding and promoting welfare are guiding principles for section 25(3), but held that the statute expressly grants a power to "provide accommodation" rather than a general power to provide unspecified "support." While other statutory powers may confer forms of support commonly associated with accommodation, the declarator's express reliance on section 25(3) could not be used to transform that statutory power into a broader entitlement. The Court also found the third declarator insufficiently specific (paragraphs [19], [67]).
5. Competency of the first (date-of-birth) declarator and its practical effect: The Court analysed what effect a decree of the sort sought would have. It clarified that a declarator granted in ordinary action binds only the parties and is not binding "contra mundum" despite the language of the pleading; it may carry persuasive weight elsewhere but would not be universally binding. This undermines the Pursuer's claim that a contra mundum declarator is appropriate or necessary. The Court observed that the declarator sought would produce no practical consequence in the present circumstances, because the Pursuer was already being accommodated and did not assert that current accommodation was inadequate or different from what section 25(3) would supply (paragraphs [20], [24]–[25], [78]–[81]).
6. Interaction with National Age Assessment Board jurisdiction and alternative remedies: The Court considered the defenders' argument that granting a declarator might usurp the NAAB's role under the Nationality and Borders Act 2022, section 50. The Court concluded that the Court's decision would not usurp the NAAB because any court decree in ordinary action would bind only the parties and the NAAB's statutory jurisdiction is defined to arise only in specific circumstances. The Court also accepted that a referral to the NAAB was not available to the Pursuer in the present factual matrix (because referrals must be made before a local authority age assessment), but held that absence of that route did not render the Pursuer's declarators competent in the present form (paragraphs [23], [78]).
7. Application of modern declarator principles: The Court accepted the modern requirement (explicated in Keatings and other cases) that a bare declarator must have a purpose and produce a practical result. The Court applied that principle and concluded the Pursuer had not shown that the bare factual declarator would produce a necessary practical result, and that mere possibility of future disputes was an insufficient basis for granting the relief now (paragraphs [71]–[74]).
8. Conclusion on academic/premature nature: Applying the tests from Macnaughton and Keatings about "live" issues, the Court concluded the declarators were academic or premature given that (i) the Pursuer was being accommodated already, (ii) she was now over 18 so section 25(1) did not apply, and (iii) no ocular facts were pleaded to show that only a declarator now would secure redress or correct manifest unfairness (paragraphs [81]–[83]).

Holding and Implications

Holding: The Court dismissed the action. The Opinion states that the Pursuer is not entitled to the decrees sought on grounds of relevancy and competence and, if separate, on the basis that the orders are academic. The Court sustained the first to fifth pleas for the first defenders and repelled the Pursuer's pleas (paragraph [25]).

Implications:

• The immediate practical effect is that the declarators sought by the Pursuer (date of birth contra mundum; entitlement to accommodation under section 25(3); entitlement to support under section 25(3)) were not granted and the action was dismissed.
• The decision emphasises that courts should not, by ordinary-action declarator, displace statutory discretions or create entitlements where the statute confers only a power.
• The Court observed that any declarator in ordinary action binds only the parties and is not universally binding; this limits the ability of ordinary actions to produce a single definitive outcome on age for all public authorities.
• The Opinion does not purport to establish a new broad precedent altering the long-standing principles regarding declarators; instead it applies both historical authorities and more recent authorities to confirm limits on bare declarators and to emphasise the requirement of practical effect.
• The Court also emphasised the continued practical difficulties faced by persons lacking documentary proof of age, noting the procedural challenges in obtaining binding determinations of age (final paragraphs of the opinion), but the judgment resolved the case on competence, relevancy and practical-effect grounds rather than endorsing a different remedy.

Anonymisation note: Persons and named parties in the original opinion have been replaced with consistent placeholders (e.g., "Pursuer", "Company A" for the first defender/local authority, "Company B" for the Home Office/Home Secretary, "Judge Lake", and "Attorney [Last Name]" for counsel) to comply with the required anonymisation instructions. All substantive content and quotations in this summary are drawn solely from the provided opinion; no facts beyond the opinion have been invented or inferred.