Summary of Opinion — Judge Ross
Factual and Procedural Background
The Plaintiff claims Vietnamese nationality and a date of birth of 14 June 2008 and arrived in the United Kingdom on 17 January 2025. Home Office staff initially considered the Plaintiff to appear over 18 and allocated a date of birth of 14 June 2001. The Plaintiff was provided with hotel accommodation in The City by the Home Office, later travelled within the Defendant's area and sought support from the Defendant in March 2025 as an unaccompanied asylum-seeking child.
Two social workers (Attorney Marchbank and Attorney Kolek) interviewed the Plaintiff on 24 March 2025 with an appropriate adult and interpreter present. The Defendant issued a three-page "Brief Enquiry Decision" signed on 2 April 2025 (endorsed by Attorney Morrison on 4 April 2025) recording observations and answering, in a two-question pro-forma, "no" to (i) whether the person was under 18 and (ii) whether the stated age was accurate; it also recorded that a full age assessment was not required.
On 5 May 2025 the Plaintiff sought reconsideration by solicitors. The Defendant reviewed the material and on 14 May 2025 maintained that no full age assessment was required. The Plaintiff lodged affidavit evidence from volunteers and representatives of assisting organisations (Company C, Company D, Company E, Company F).
The Plaintiff raised judicial review proceedings on 20 June 2025 seeking (i) a declarator that his date of birth is 14 June 2008, (ii) reduction of the Brief Enquiry Decision, and (iii) an order for specific performance of the Defendant's duty under section 25(1) of the Children (Scotland) Act 1995. The Plaintiff obtained interim specific-performance orders on 25 July 2025; he presently remains in accommodation provided by the Defendant.
A procedural hearing framed the substantive hearing to consider legal arguments, with any necessary factual inquiry to be fixed thereafter. The joint statement of issues focused on the legal basis for the Brief Enquiry Decision, the nature of the exercise undertaken, the competency of a declarator of age and whether any legal error justified reduction of the decision.
Legal Issues Presented
- What is the legal basis for the Defendant undertaking the Brief Enquiry Decision (interaction of section 25 of the 1995 Act with sections 49–51 of the Nationality and Borders Act 2022)?
- What is the nature of the exercise undertaken by the Defendant (brief enquiry v. age assessment) and what are the consequences for judicial review?
- Is the Plaintiff's proposed declarator of date of birth a competent order and can the court determine the Plaintiff's age as a matter of precedent fact?
- Did the Defendant make an error of law in the Brief Enquiry Decision, and if so, does that justify reduction of the decision?
Arguments of the Parties
Plaintiff's Arguments
- Judicial review is the correct procedure and the court can determine age as a precedent fact (relying on R (A) v Croydon LBC and West principles).
- The Brief Enquiry Decision was not an age assessment under section 50 of the 2022 Act but a decision under section 25 of the 1995 Act; therefore the court should decide age as fact.
- Alternatively, even if the Defendant acted under section 50, the decision was not an entrusted exclusive function and a declarator remains competent.
- The Defendant failed to apply the correct legal test; the local authority should determine whether it was "very obvious" the person was over 18 (citing R (B) v Merton LBC) and provide reasons why no prolonged inquiry was required.
- An Article 8 ECHR point was advanced but not pressed.
Defendant's Arguments
- Judicial review is the correct procedure but the declarator sought is incompetent; the Defendant was exercising statutory functions under section 50 of the 2022 Act (age assessment) and section 25 of the 1995 Act.
- The Defendant had jurisdiction to decide age under section 50(3)(b); that decision is for the local authority and the court's supervisory jurisdiction reviews legality, not merits.
- The standard of proof for an age assessment is the balance of probabilities (section 50(6)); the Brief Enquiry Decision reflected a view that the Plaintiff was clearly over 18 and was a lawful exercise of the section 50 power.
- The doctrine of precedent fact does not permit the court to substitute its own view on age where Parliament has conferred decision-making on the local authority.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Abdullah v Aberdeenshire Council [2024] CSOH 8; 2024 SLT 143 |
Authorities on procedural route/competency regarding age disputes in Scotland. |
Noted as earlier authority on competency; court held section 50 has since altered the statutory landscape. |
| Ahmat v Aberdeenshire Council [2025] CSOH 15; 2025 SLT 735 |
Procedural context and prior treatment of declarator actions and age disputes. |
Referenced for procedural history; distinction drawn that competency issues were not live there. |
| West v Secretary of State for Scotland 1992 SC 385 |
Limits of supervisory jurisdiction; merits reserved to entrusted decision-making bodies. |
Applied to conclude that section 50(3)(b) entrusts decision-making to the local authority and the court cannot review merits. |
| R (A) v Croydon LBC [2009] 1 WLR 2557 |
Doctrine that courts decide precedent facts where executive power depends on objective fact. |
Considered by the Plaintiff; court held that subsequent statutory changes (section 50) mean Parliament entrusted age decisions to local authorities in this context. |
| R (B) v Merton LBC [2003] 4 All ER 280 |
Guidance on when a "brief" enquiry suffices and the "very obvious" test for age assessments. |
Used as supporting authority for the proposition that brief enquiries may suffice; court incorporated this reasoning into its analysis of section 50 assessments. |
| R (HAM) v Brent LBC [2022] EWHC 1924 (Admin) |
Recent authority discussing the non-binary nature of depth of enquiry for age assessments. |
Relied upon to support flexibility of brief v full assessments under section 50. |
| Ibrahimi v Glasgow City Council [2026] CSIH 4 |
Inner House comment that where it is very obvious an individual is over 18 no prolonged inquiry is needed. |
Accepted as consistent with the view that a brief enquiry can suffice under section 50. |
| Napier v Scottish Ministers 2005 1 SC 229 |
Example where factual determinations were required in supervisory review. |
Cited to acknowledge courts may sometimes determine precedent facts, but held inapplicable where statute entrusts decision to local authority. |
| Crocket v Tantallon Golf Club 2005 SLT 663 |
Discussion on the binding effect of internal decision-making within bodies. |
Distinguished: court held Crocket concerned internal club rules and did not assist the Plaintiff's argument about non-binding age decisions. |
| AN [2025] CSOH 89; 2025 SLT 1322 |
Procedural route in cases raising declarator actions on age. |
Noted as prior practice where competency and precedent-fact issues were not central. |
| R (on the application of UYR) v Derby City Council [2025] EWCA Civ 1648 |
Availability of interim relief in judicial review challenges to age assessments (English CA). |
Held to be of limited assistance because it did not consider the 2022 Act provisions. |
| SB [2022] EWHC 308 (Admin) |
Judgment cited for the proposition that depth of enquiry is not binary. |
Used via citation in HAM to support flexible approach to brief v full enquiries. |
Court's Reasoning and Analysis
The court read section 25 of the Children (Scotland) Act 1995 together with sections 49–51 of the Nationality and Borders Act 2022. Section 49 identifies an "age-disputed person" and section 50 requires a local authority, where it needs to know age for children's functions, to refer to the NAAB, conduct its own assessment, or inform the Secretary of State that it is satisfied of the claimed age.
The court concluded that where the Defendant had insufficient evidence as to age the statutory process under section 50 applied; the recorded "brief enquiry" in this case was an age assessment within section 50 (it being open for that assessment to be brief or full depending on circumstances). Section 50(3)(b) entrusts the local authority with the decision-making function in such cases.
The court addressed the doctrine of precedent fact and the Plaintiff's reliance on R (A) v Croydon LBC and West. It held that, given Parliament's specific allocation of decision-making under section 50(3)(b), the determination of age in this statutory context is for the local authority and not for the court to substitute its own assessment; the supervisory jurisdiction is limited to review of legality and not merits.
On the legal test for a brief enquiry, the court accepted the balance of probabilities standard in section 50(6) but preferred a nuanced approach: fairness normally requires that unless age is clear and obvious a full assessment should be conducted. Thus, a local authority should consider whether a brief enquiry yields a clear and obvious answer; if so, it may decide on the balance of probabilities, otherwise a full assessment is required.
Applying that framework, the court examined the Brief Enquiry Decision. Although it did not use the express words "clear and obvious" or state satisfaction on the balance of probabilities, the document and contemporaneous notes allowed the court to infer that the social workers considered the Plaintiff's age to be clear and that a full assessment was unnecessary. The reasons provided, though brief, met the adequacy threshold and any omission to use precise formulations was immaterial.
Accordingly the court found no material error of law in the Defendant's decision and refused the Plaintiff's challenge.
Holding and Implications
REFUSED
Holding: The petition for judicial review is refused. The court sustained the Defendant's pleas-in-law and did not reduce the Brief Enquiry Decision; the declarator sought by the Plaintiff was held not to be a competent form of relief in the circumstances.
Implications: The direct effect is that the Defendant's Brief Enquiry Decision stands and the Plaintiff's substantive remedies sought (declarator of date of birth and reduction of the decision) were not granted. The opinion applies the 2022 Act to vest primary responsibility for such age determinations in the local authority and does not purport to create a new general precedent beyond its statutory interpretation and application to the facts; no broader change in law was declared by the court.