The decision of the Court of Appeal in Derby City Council v R (UYR) [2025] EWCA Civ 1648 provides important guidance in the context of claims for interim relief in age assessment cases.
See Summary of the guidance given by the Court of Appeal: https://www.no5.com/2025/12/court-of-appeal-gives-guidance-on-interim-relief-in-age-assessment-judicial-reviews/
Factual and procedural background (see paragraphs [3]-[17] of the judgment)
The Respondent (hereinafter “Claimant”), a national of Ethiopia, arrived in the UK on 17 March 2025. The second day after his arrival, he underwent a brief age assessment by Bedford Borough Council, which concluded he was clearly an adult. He was thus dispersed into adult accommodation provided by the Home Office. Four days later, he was dispersed to the administrative area of Derby City Council, where he was again aged assessed to be an adult on 28 March 2025, and continued be supported by the Home Office. On 23 April 2025, he was once more dispersed by the Home Office into the administrative area of Manchester City Council.
On 2 May 2025, the Claimant issued his claim to judicially review Derby City Council’s decision, accompanied by an application for interim relief.
Approximately on 6 May 2025, he presented at a hospital after collapsing. The staff nurse on duty, noting that he looked very young, made a safeguarding referral to Manchester City Council. Emergency duty social workers of Manchester City Council visited the Claimant, who was in the children’s ward, and decided to accommodate him as a child under section 20 of the Children Act 1989. At the time, Manchester City Council were not aware of the earlier age assessments and did not conduct their own age assessment. The Claimant has remained in foster care since then, except for an additional period of hospitalisation.
On 14 May 2025, the Administrative Court heard the Claimant’s interim relief application. Prior to the hearing, Manchester City Council had endeavoured to reach an agreement with Derby City Council regarding the future care of the Claimant. It is important to note that at the time of the hearing, Manchester City Council had not confirmed whether the Claimant was being accommodated under section 20 of the Children Act 1989 or whether they were willing to continue to provide accommodation during the determination of the proceedings.
After reserving her decision, the Deputy Judge granted the Claimant’s application for interim relief: R (on the application of UYR) v Derby City Council v Bedford Borough Council, Manchester City Council [2025] EWHC 2081 (Admin). In doing so, it is relevant to note that the Deputy Judge found that there was no guarantee that Manchester City Council would continue to accommodate the Claimant as a child (at paragraph [30] of the Deputy Judge’s judgment); and if Derby City Council’s age assessment was wrong, then Derby City Council would have the responsibility for safeguarding the Claimant’s needs (at paragraph [29] of the Deputy Judge’s judgment).
See Article in relation to the Administrative Court judgment: https://www.no5.com/2025/08/brief-enquiry-of-age-interim-relief-granted-in-judicial-review-challenge-involving-three-local-authorities/
Judgment of the Court of Appeal
The issues to be determined by Lord Justice Moylan, Lord Justice Zacaroli (who gave the leading judgment), and Lady Justice Yip were articulated as follows:
- Whether it is a threshold, or gateway, requirement that there is a strong prima facie case on the merits of the underlying judicial review claim.
- What bearing it has, if any, on the exercise of the balance of convenience in a claim for interim relief against local authority A, that the claimant is already being accommodated as a child by local authority B.
After Derby City Council obtained permission from the Deputy Judge to appeal against the grant of interim relief on the second ground relating to the second issue, and from Phillips LJ on the first ground relating to the first issue, the grant of interim relief was stayed pending the determination of the appeal. The full wording of Derby City Council’s grounds of appeal can be found at paragraph [18]. Zacaroli LJ noted, at paragraph [22] of the judgment, that Counsel for Derby City Council “had not put the case before the Deputy Judge on the basis that there was a requirement, let alone a threshold requirement, for a strong prima facie case”. It was in the application for permission to appeal that this was first raised.
Ground (1): Whether it is a threshold, or gateway, requirement that there is a strong prima facie case on the merits of the underlying judicial review claim. (see paragraphs [33]-[61] of the judgment)
Submissions made by the parties
Derby City Council
It was submitted that the test is different in applications for interim mandatory orders. This was on the basis of the below three cases: (1) De Falco v Crawley BC [1980] QB 460; (2) Francis v Kensington and Chelsea Royal London BC [2003] 1 WLR 2248; and (3) British Standards Institution v R (on the application of RRR Manufacturing Pty Ltd) [2024] EWCA Civ 530. First, the Court of Appeal noted that there was no mention of a threshold or gateway condition in De Falco; and Bridge LJ’s suggestion that the American Cyanamid principles are of no relevance has not been followed in later authority (paragraphs [36]-[38] of the judgment).
Second, although Francis followed De Falco, the Court of Appeal stated that this must be considered in having regard to National Commercial Bank Jamaica Limited v Olint Corporation Limited [2009] UKPC 16. There was no justification for assuming that it was the intention of Lord Diplock to confine the principles in American Cyanamid to prohibitory injunctions only (paragraphs [39]-[41] of the judgment).
Third, in addressing the second ground of appeal in RRR on whether De Falco had been overruled in later cases, Elisabeth Laing LJ observed at paragraph [87] that:
[…] One of the first instance decisions, which concerned a dispute about age assessment, is not relevant, as such disputes are a rare example of disputes in which the Administrative Court (or the Upper Tribunal) makes a factual decision on an application for judicial review, and, as a result, the test for granting permission to apply for judicial review in such cases is different from the test in most public law cases. […]That is to say, as articulated by Zacaroli LJ at paragraph [46] of the judgment, that:
The fact that, in judicial review proceedings against an age assessment, the age of the young person concerned is an objective fact subject to ultimate determination by a court, was established by the Supreme Court in R(A) v Croydon London BC [2008] UKSC 8; [2009] 1 WLR 2557 . That is in contrast to the court being required to review the local authority’s decision on conventional public law principles, where considerable deference is afforded to the primary decision maker’s decision.
The Claimant
It was submitted that regardless of the general position for an interim application for a mandatory injunction, there is no threshold requirement of a strong prima facie case on an application for interim relief in a claim for judicial review in an age assessment case. There is no case concluding that there is such a threshold and RRR distinguished age assessment cases. The Court of Appeal was taken to cases where the Administrative Court did not follow De Falco (including R (BG) v Oxfordshire County Council [2014] EWHC 3187 (Admin) and R (AS) v Liverpool City Council [2021] EWHC 3531 (Admin)), and cases where the American Cyanamid principles adapted as in R (on the application of Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin) to the public law context were applied (including R (KRA) v Cheshire East Council [2024] EWHC 575 (Admin)) (paragraphs [48]-[54] of the judgment).
Judicial Reasoning and Outcome
The Court of Appeal dismissed the appeal on ground (1), finding that the test is that there is a serious issue to be tried or a real prospect of success. Should the test be met, then the balance of convenience is the next consideration (see paragraph [33] of the judgment). In reaching that conclusion, the Court of Appeal held:
- The absence of damages as an adequate remedy and the difference between mandatory and prohibitory injunctions “carry little if any weight” for needing a strong case (paragraph [56] of the judgment);
- There is an important difference between a judicial review in an age assessment case and other judicial review claims, as in the first “it is for the court to reach its own decision as to the age of the claimant” (paragraph [57] of the judgment);
- “While the consequence of a conclusion that a person is a child can impose a significant financial burden on the relevant local authority, there is no direct impact on other children within the local authority’s jurisdiction because a local authority is obliged to provide accommodation for a child in need, irrespective of how many other children in need there are within its jurisdiction” (paragraph [58] of the judgment);
- Article 3 of the United Nations Convention on the Rights of the Child considerations and “whether a child awaiting an assessment was to be treated as a child unless there were cogent reasons for not doing so” did not assist with the discrete question as to whether there is a heightened merits threshold at the first stage of the test (paragraph [60] of the judgment).
- Although there was no need to consider the addition of “strong” to prima facie case and how it contrasts with a serious issue to be tried, had this been required, the Court of Appeal would have concluded that “the fact that a medical professional, who observed the Claimant, and two social workers in Manchester City Council, accepted that the Claimant was a child without the need to carry out any assessment – justified a conclusion that there is any event a strong prima facie case” (paragraph [61] of the judgment).
Ground (2): What bearing it has, if any, on the exercise of the balance of convenience in a claim for interim relief against local authority A, that the claimant is already being accommodated as a child by local authority B. (see paragraphs [62]-[93] of the judgment)
Submissions made by the parties
Derby City Council
It was submitted that the Deputy Judge made an error of principle in finding that the balance of convenience favoured a grant of interim relief, when the Claimant was already being cared and accommodated as a child by Manchester City Council. The Judge was wrong to rely on: (1) The fact that “Manchester City Council were looking to Derby City Council to potentially assume the care of the Claimant or come to some agreement”; (2) The Joint Working Guidance; and (3) The fact that “there is no guarantee that Manchester City Council will continue to accommodate the Claimant as a child now that they are aware of the dispute as to his age” (paragraphs [62]-[65] of the judgment).
The Claimant
It was submitted that the Deputy Judge was entitled to reach her decision on the basis that the arrangements were precarious “because Manchester City Council was merely exercising, on an interim basis, a safeguarding duty towards a putative child” (paragraph [66] of the judgment).
Manchester City Council
Manchester City Council’s intervention was confined to the second issue in dispute. It was accepted on behalf of Manchester City Council that it was “not currently in a position unilaterally to cease treating the Claimant as a child”, as “at the very least, Manchester City Council would first need to conduct its own age assessment”. It was “an implicit, if not explicit, acceptance that Manchester City Council is currently subject to a section 20 of the Children Act 1989 duty in respect of the Claimant” (paragraph [67] of the judgment). This was the first time that confirmation was given by Manchester City Council in this regard.
It was further submitted that the Deputy Judge’s order implicitly recognised an arrangement whereby Derby City Council would pay for the foster care provided to the Claimant in Manchester. “It would be ‘invidious’ to require a young person who was settled in foster care to leave that foster care”. If that was not the view of the Court of Appeal, then the Deputy Judge’s order should be varied to reflect the same. Reliance was placed on Liverpool City Council v Hillingdon London Borough Council [2009] EWCA Civ 43; and R (HA) v London Borough of Hillingdon [2012] EWHC 291 (Admin) (paragraphs [68]-[71], [74] of the judgment).
Judicial Reasoning and Outcome
Whilst recognising that the Deputy Judge reached an unimpeachable conclusion that the Claimant had to be accommodated as a child pending the resolution of the judicial review proceedings, the Court of Appeal allowed the appeal on ground (2) (paragraph [94] of the judgment). In reaching that conclusion, the Court of Appeal held:
- Manchester City Council accepted responsibility for the Claimant as a child without reservations. There was no mention of this being without prejudice to whether Manchester City Council had any obligation under section 20 of the Children Act 1989 and it was only when Manchester City Council became aware of the previous age assessments that sought to reach an agreement with Derby City Council (paragraphs [80], [91] of the judgment);
- Whilst HA and R (G) v Southwark London Borough Council [2009] 1 WLR 1299 support the Deputy Judge’s conclusion that if Derby City Council was wrong about the Claimant’s age, “then it would have had responsibility under section 20 of the Children Act 1989” from the date of their decision on age, but “it is not known whether the decision was lawful or not” (paragraphs [86] of the judgment);
- The possibility exists, at least in the interim period, that both Manchester City Council and Derby City Council “owe concurrent duties under section 20 of the Children Act 1989” (paragraph [87] of the judgment);
- “Manchester City Council cannot simply choose to cease to accommodate the Claimant”, and such a prospect is “remote” while the issue is before the court and remains unresolved (paragraph [92] of the judgment).
- “It is no part of a balancing exercise [who is the local authority] liable for the cost of the Claimant’s interim relief accommodation” (paragraph [93] of the judgment).
Points for Consideration
First, the Court of Appeal clarifies that there is no gateway/threshold requirement of “strong prima facie case” in age assessment cases for the grant of interim relief. This is welcome guidance to ensure that parties to a judicial review claim in an age assessment case apply the correct legal framework. In other judicial review claims, the question of whether there is a heightened merits threshold remains undecided, as this was not the focus of this appeal, albeit the Court did make obiter comments which doubted whether such a test as per De Falco has survived more recent authority.
Second, the Court of Appeal takes the view that when the Claimant was taken into care by Manchester City Council, this triggered a section 20 of the Children Act 1989 duty. One of the reasons provided for this, other than the acceptance provided on behalf of Manchester City Council at the appeal hearing that they had taken him into care under section 20 of the Children Act 1989, was that at the time of writing to the Administrative Court before the interim relief hearing, Manchester City Council had not mentioned that they had taken the Claimant into care without prejudice to whether Manchester City Council had any obligation under section 20 of the Children Act 1989. It follows that it is unlikely that a Claimant will require interim relief if being accommodated under section 20 of the Children Act 1989 by a local authority, even if there is an extant dispute as to which local authority is responsible for such accommodation. Naturally, each case should be assessed on its own merits, and this statement is not intended to constitute legal advice.
The issue that remains to be explored and determined by the courts is the possibility of two or more local authorities owing concurrent duties under section 20 of the Children Act 1989. For those interested on this issue, Liverpool City Council v Hillingdon London Borough Council [2009] EWCA Civ 43 and the ADCS Joint Working Guidance 2023 are a good starting point alongside the obiter dicta of Zacaroli LJ at paragraph [87].
Third, the Court of Appeal accepts that the cases of HA and G the Deputy Judge’s conclusion that if Derby City Council’s assessment of age is wrong, it would have been responsible for safeguarding the needs of the Claimant; and if it were not for their decision to treat him as an adult, he would not have been dispersed to Manchester City Council’s administrative area. Despite this, the Court of Appeal goes onto state that until the judicial review proceedings are determined, this is not known whether Derby City Council’s decision was lawful or not. The judgment does not go as far as to consider that given that the Claimant’s age has now been accepted, the judicial review proceedings become academic. In these circumstances, where does the liability fall? Does Derby City Council owe concurrent duties to Manchester City Council? These questions remain unanswered.
Last, yet of no lesser significance, in obiter dicta, the Court of Appeal emphasised the importance of discouraging applicants travelling from one local authority to another until their age is accepted; and discouraging local authorities from dumping applicants on another local authority, practice described by Lady Hale as “passing them from pillar to post”.
The Respondent (UYR) was represented by David C. Gardner and Susana Ferrin of No5 Barristers’ Chambers. They were instructed by Martin Bridger and Megan Paterson of Luke and Bridger Law.
Link to the judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2025/1648.pdf
Link to the video of the hearing: https://www.no5.com/2025/08/brief-enquiry-of-age-interim-relief-granted-in-judicial-review-challenge-involving-three-local-authorities/
Other related articles:
