Summary of Opinion by Judge Zacaroli (Court of Appeal)
Factual and Procedural Background
The Claimant, an individual from Ethiopia, arrived in the jurisdiction on 17 March 2025 and stated on arrival that he was 15 (date of birth given as 6 October 2009). The Claimant was first assessed briefly for age by social workers of Local Authority B on 18 March 2025, who concluded he was clearly an adult and therefore did not carry out a full (Merton‑compliant) age assessment. He was placed in adult accommodation and shortly afterwards moved to the area of Local Authority A.
Local Authority A carried out its own brief age assessment on 28 March 2025 and reached the same conclusion as Local Authority B: the Claimant was a clear adult and should be supported by the Home Office. The Home Office subsequently moved the Claimant to adult accommodation in another area on 23 April 2025.
The Claimant issued judicial review proceedings against Local Authority A on 2 May 2025, together with an application for interim relief. On or about 6 May 2025 he was admitted to a hospital after collapsing; hospital staff considered he looked very young and made a safeguarding referral to Local Authority C. Local Authority C admitted the Claimant to a children's ward and, without being aware of the earlier brief age assessments, decided to accommodate him as a child under section 20 of the Children Act 1989 and placed him in foster care. The Claimant has remained in foster care arranged by Local Authority C (with a later hospital admission for treatment) while the judicial review proceedings progressed.
The Claimant's interim relief application was heard by Judge Ridge (sitting as a deputy judge of the High Court) and, in a reserved judgment, she granted interim relief ordering Local Authority A to treat the Claimant as a putative child aged 15 and to secure accommodation, care and support pursuant to section 20 of the Children Act 1989 pending the outcome of the judicial review or further order.
Local Authority A appealed. Permission to appeal was granted on the ground concerning the application of the balance of convenience where the Claimant was already accommodated as a child by Local Authority C; permission on the separate point about a threshold "strong prima facie case" was later granted by a single Lord Justice (subject to conditions). The deputy judge stayed her order for a limited period because the Claimant was being accommodated by Local Authority C; the stay was later extended pending the appeal provided the Claimant remained in the Local Authority C area and continued to be regarded as a child by Local Authority C.
Legal Issues Presented
- Whether an application for interim relief in an age assessment judicial review requires, as a threshold or gateway, a "strong prima facie case" on the merits (as distinct from the American Cyanamid first‑stage test of a "serious issue to be tried").
- When applying the balance of convenience for interim relief against Local Authority A in an age assessment case, what weight should be given to the fact that the Claimant is already being accommodated as a child by Local Authority C?
Arguments of the Parties
Local Authority A's Arguments (Appellant)
- There should be a threshold requirement that a Claimant establishes a "strong prima facie case" before interim mandatory relief (such as requiring accommodation under s.20) is granted against a local authority.
- The deputy judge erred in ordering Local Authority A to secure accommodation when the Claimant was already being accommodated as a child by Local Authority C; the judge failed properly to treat the current accommodation as a relevant fact in the balance of convenience.
- It was submitted that Local Authority C had accepted the Claimant as a child independently and that, in any event, Local Authority C could not simply cease accommodating the Claimant without following procedure (such that there was no real risk if interim relief were refused against Local Authority A).
- Local Authority A challenged reliance on the Joint Working Guidance and the deputy judge's view that Local Authority C might not continue to accommodate the Claimant.
Claimant's Arguments (Respondent)
- The court should not adopt a threshold "strong prima facie case" rule for interim relief in age assessment judicial review claims; the correct first stage is whether there is a serious issue to be tried (or a real prospect of success).
- If a threshold were required, the deputy judge had in any event found that a strong prima facie case existed in this case, citing medical observations and Local Authority C social worker conclusions.
- On the balance of convenience, the Claimant pointed to the risk of serious harm if wrongly treated as an adult, the medical and social work conclusions that he appeared to be a child, and that the status quo was being accommodated as a child.
Local Authority C's Position (Interested Party)
- Local Authority C (which had accommodated the Claimant under s.20) filed a respondent's notice seeking to uphold the deputy judge's decision on the basis that Local Authority A had conducted an age assessment and therefore accepted responsibility if the Claimant is a child.
- Local Authority C accepted it would first need to carry out its own assessment before ceasing to accommodate, and it recognised the inappropriateness of moving a settled child in foster care.
Table of Precedents Cited
| Precedent (anonymized) |
Rule or Principle Cited For |
Application by the Court in this Opinion |
| Company A v Company B [1975] AC 396 (American Cyanamid) |
The three‑fold interim relief test: (1) serious issue to be tried; (2) adequacy of damages; (3) balance of convenience. |
The deputy judge applied the American Cyanamid framework (adapted to public law) and the Court of Appeal held that the correct threshold is the first American Cyanamid limb (serious issue to be tried) in age assessment cases. |
| R(HA) v Local Authority D [2012] EWHC 291 (HA v Hillingdon) |
Assignment of s.20 responsibility and interim relief against the original assessing authority pending determination. |
The deputy judge relied on this authority; the Court acknowledged it supports the proposition that the original assessing authority may be responsible and that interim relief can be granted against it pending challenge. |
| Medical Justice v Secretary of State for the Home Department [2010] EWHC 1425 |
Adaptation of American Cyanamid principles for public law interim relief; claimant must show real prospect of success. |
Cited by the Court as part of established public law approach to interim relief and as precedent for using American Cyanamid with modification. |
| Smith v Inner London Education Authority [1978] 1 All ER 411 |
Public law cases require showing a real prospect of success before restraining public authorities. |
Used to support the proposition that public law interim relief is governed by a real‑prospect (serious issue) standard rather than an elevated threshold. |
| Sierbein v Westminster City Council [1987] 86 LGR 43 |
Affirmation of the approach in Smith and emphasis on public interest in injunctions against public authorities. |
Referenced to underline public interest considerations in public law interim relief. |
| De Falco v Crawley BC [1980] QB 460 |
Court of Appeal held in housing context that a strong prima facie case should be required before ordering interim mandatory relief to provide accommodation. |
Local Authority A relied on De Falco to argue for a threshold. The Court analysed De Falco and concluded its justifications do not translate to age assessment cases as a categorical threshold. |
| Francis v Kensington & Chelsea Royal London BC [2003] 1 WLR 2248 |
Applied De Falco in housing temporary accommodation appeals; suggested higher standard for mandatory orders. |
Discussed as part of argument for a higher threshold for mandatory relief; the Court considered and distinguished it in the age assessment context. |
| National Commercial Bank Jamaica v Olint Corporation [2009] UKPC 16; [2009] 1 WLR 1405 |
Lord Hoffmann's observation that distinguishing mandatory/prohibitory injunctions is often unhelpful; focus on irremediable prejudice in balance of convenience. |
Quoted to demonstrate that the mandatory/prohibitory distinction is not a good basis for a rigid threshold and to support a fact‑sensitive balance‑of‑convenience analysis. |
| R v Secretary of State for Transport, ex parte Factortame [1990] 1 AC 603 |
Principles about discretion and irreparable prejudice applicable to interim relief. |
Referred to as an example of the underlying discretionary principle guiding interim relief decisions. |
| Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 |
Illustrates that mandatory injunctions can more readily cause irremediable prejudice. |
Used to explain why the mandatory/prohibitory distinction influences, but does not determine, the analysis. |
| Shepherd Homes Ltd v Sandham [1971] Ch 340 |
Discusses the need for a high degree of assurance in some cases where injunctions are likely to cause irreversible prejudice. |
Quoted by Lord Hoffmann in argument over standards; cited in the Court's discussion of thresholds versus balance. |
| British Standards Institution v RRR Manufacturing Pty Ltd [2024] EWCA Civ 530 |
Considered whether De Falco remains good law and whether a threshold strong prima facie case is required for mandatory interim relief. |
The Court discussed RRR's treatment of De Falco and noted that in RRR the Court of Appeal considered De Falco and related authorities; RRR did not displace the distinction for age assessment cases. |
| R(A) v Croydon LBC [2008] UKSC 8; [2009] 1 WLR 2557 |
Established that age in age assessment appeals is an objective fact for the court to determine (declaratory finding in rem). |
Used to explain why age assessment judicial review is fact‑sensitive and why deference to the local authority is less applicable. |
| R(X) v Office for Standards in Education [2020] EWCA Civ 594 |
Authority discussing reluctance to fetter discretion and that a strong prima facie case is not always a fixed rule in public law interim relief. |
Cited by the respondent to support flexibility in the interim relief discretion and to question a rigid threshold rule. |
| R(BG) v Oxfordshire County Council [2014] EWHC 3187 |
First instance decision in age assessment context declining a degree‑of‑arguability requirement. |
Referred to as part of a body of first instance authorities that apply American Cyanamid principles rather than a rigid De Falco threshold in age assessment cases. |
| R(AS) v Liverpool City Council [2021] EWHC 3531 |
First instance authority holding there is no hard and fast rule requiring a strong prima facie case in age assessment cases; strength of claim informs balance. |
Cited as persuasive authority supporting the approach the Court adopted: the court's provisional view of strength is a factor in the balance, not a separate threshold. |
| R(KKA) v Cheshire East Council [2024] EWHC 575 |
Illustrative first instance decisions applying American Cyanamid principles to age assessment interim relief. |
Used to show working illustrations where courts have declined to apply a higher threshold and treated the merits as part of the balance. |
| R(G) v Southwark LBC [2009] 1 WLR 1299 |
Factors for determining s.20 duty; caution against passing children from authority to authority while authorities dispute responsibility. |
Quoted (Lady Hale) to support the proposition that children should not be passed "from pillar to post" while authorities dispute responsibility; used in reasoning about the appropriate interim solution. |
| Liverpool City Council v Hillingdon LBC [2009] EWCA Civ 43; [2009] PTSR 1067 |
Dispute between local authorities over which authority owed s.20 duties and when an authority's responsibility arises/ceases. |
Discussed as authority on concurrent or continuing s.20 obligations and cited in relation to the deputy judge's reasoning about responsibility if Local Authority A were wrong. |
| R(S) v Croydon LBC [2017] EWHC 2656 |
Suggested treating a putative child as a child pending assessment unless cogent reasons not to do so. |
Referenced when considering whether Article 3 of the UN Convention on the Rights of the Child and prior authority affect the balance stage, but not the threshold merits question. |
Court's Reasoning and Analysis
Judge Zacaroli addressed each ground of appeal in turn. The first ground raised the legal question whether a threshold "strong prima facie case" is required before interim relief may be granted in an age assessment judicial review claim.
On Ground 1, the Court analysed the authorities relied upon by Local Authority A (notably De Falco and Francis) which, in housing/temporary accommodation contexts, had been understood to require a strong prima facie case before granting mandatory interim accommodation relief. The Court examined more recent and relevant authorities (including decisions in RRR and first instance age assessment cases) and the distinctive features of age assessment judicial review claims.
The key analytical points were:
- American Cyanamid remains the governing framework for interim relief (serious issue to be tried; adequacy of damages; balance of convenience), adapted for public law contexts.
- De Falco and Francis were carefully considered. The Court concluded that the specific justifications for a higher threshold in those housing cases (concern about interference with allocation priorities and financial burdens) do not translate to age assessment cases.
- Age assessment judicial review differs from ordinary public law review because age is an objective fact for the court to determine (per the Supreme Court in Croydon). Consequently, the usual reasons for a higher merits threshold (deference to the primary decision‑maker) are less applicable.
- First instance authorities dealing with age assessment disputes have generally applied the American Cyanamid framework without imposing a categorical "strong prima facie" threshold; instead the court's provisional assessment of the strength of the claim informs the balance of convenience.
- Accordingly, the Court rejected the submission that a threshold "strong prima facie case" is required in age assessment judicial review interim relief applications; the correct first stage is whether there is a serious issue to be tried (or real prospect of success).
The Court further observed that even if it had been necessary to determine whether a "strong" prima facie case existed, the deputy judge's findings regarding medical observations and Local Authority C social workers' view that the Claimant appeared to be a child would have justified that conclusion on the facts.
On Ground 2 (balance of convenience where the Claimant is already accommodated by another local authority), the Court examined whether the deputy judge erred in ordering Local Authority A to provide accommodation when Local Authority C had already accommodated the Claimant under s.20.
The Court's analysis here proceeded as follows:
- The Court accepted that if Local Authority A were wrong and the Claimant was a child, Local Authority A would have been responsible from the date of its assessment; earlier authorities support the proposition that interim relief can be directed at the assessing authority in that circumstance.
- However, the deputy judge's reasoning that the arrangement with Local Authority C was precarious (such that relief against Local Authority A was necessary) was based on an incorrect premise: the evidence before the deputy judge showed Local Authority C had, before knowing of earlier assessments, unequivocally decided to accommodate the Claimant as a child.
- Local Authority C could not simply stop accommodating the Claimant without first conducting an assessment and satisfying statutory obligations; the prospect that Local Authority C would cease accommodation while the judicial review remained unresolved was remote.
- The Joint Working Guidance encourages cooperation between local authorities and contemplates agreeing which authority will take responsibility, but reliance on the Guidance did not justify the deputy judge's finding that Local Authority C's provision was precarious.
- Given these factors, the Court concluded that there was no need, in the balance between the Claimant and Local Authority A, to order Local Authority A to secure accommodation because the Claimant was already being adequately accommodated by Local Authority C. The court emphasised that resolving which authority should pay for interim accommodation or which authority bears ultimate responsibility was not an issue properly determinable on this application where Local Authority C was not a defendant and had not sought relief against Local Authority A.
Holding and Implications
Holding:
The Court made two dispositive findings:
- It rejected the contention that a threshold "strong prima facie case" is required on an application for interim relief in an age assessment judicial review; the proper merits threshold is the first limb of American Cyanamid — whether there is a serious issue to be tried (a real prospect of success).
- The Court allowed the appeal on the second ground: the deputy judge erred in concluding that the Claimant's accommodation by Local Authority C was precarious and should therefore have concluded there was no real risk that the Claimant would cease to be accommodated as a child pending resolution. Consequently, the balance of convenience did not justify ordering interim relief against Local Authority A.
Implications:
The direct consequence is that the Court would dismiss the appeal on the first ground and allow the appeal on the second ground: the deputy judge's interim order against Local Authority A is overturned on the basis that Local Authority C's ongoing accommodation removed the need for interim relief directed at Local Authority A. The Court emphasised that it did not disturb the deputy judge's core conclusion that, on the merits, the Claimant ought to be treated as a child pending determination; rather, it held that, given the factual position (the Claimant's accommodation by Local Authority C), the balance of convenience did not justify an order requiring Local Authority A to provide/secure accommodation.
The Court noted that it was not establishing any new categorical rule requiring a "strong prima facie case" in age assessment judicial review interim relief; instead, the ruling clarifies that the American Cyanamid first‑stage test applies and that the factual circumstance of an alternative authority already providing accommodation is highly material to the balance of convenience.
Disposition
The appeal was dismissed insofar as it challenged the absence of a threshold "strong prima facie case" requirement. The appeal was allowed insofar as it challenged the deputy judge's exercise of the balance of convenience: the interim relief ordered against Local Authority A was set aside on the basis explained above.
Panel
Decision given by Judge Zacaroli, with concurrence of Judge Yip and Judge Moylan.