LB, R (on the application of) v London Borough of Enfield [2025] EWHC 2094 (Admin)

[2025] EWHC 2094 (Admin)Case No AC-2025-LON-000186
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 th August 2025
Before
KAREN RIDGE SITTING AS A DEPUTY HIGH COURT JUDGE
Between
THE KINGClaimantLONDON BOROUGH OF ENFIELDDefendant
Donnchadh Greene (instructed by Osbornes Law) for ClaimantHilton Harrop-Griffiths (instructed by London Borough of Enfield) for DefendantHearing Hearing date: 20 May 2025
APPROVED JUDGMENT

Deputy High Court Judge Karen Ridge :

[1]The Claimant is an asylum seeker who is now 18 years old. His age and date of birth of 14 October 2006 are established and accepted by the Defendant. The Claimant was in the care of the Defendant as a looked after child in the 10 weeks immediately preceding his 18th birthday. Had he been in the care of the Defendant for 13 weeks or more prior to his 18th birthday he would have the right to be treated as a former relevant child and been provided with support and assistance as such. The Defendant has refused to treat the Claimant as a former relevant child (or care leaver) for the purposes of the Children Act. The Claimant now seeks to challenge the Defendant’s refusal to exercise its discretion to treat him as if he were a former relevant child and provide him with leaving care support under the Children Act 1989.[2]Counsel have helpfully agreed that the issue raised by this claim is whether the Defendant is acting unlawfully in refusing to consider whether to exercise its discretion and treat the Claimant “as if” he were a former relevant child and provide him with leaving care support under the Children Act 1989.[3]In order to determine this issue, Counsel jointly invite the Court to consider the following:a. Whether the Defendant acted unlawfully in response to the Early Help referral made by the Claimant’s immigration solicitors on 26 March 2024.b. If the Defendant did act unlawfully, whether: i. the Defendant must consider whether to exercise its discretion to treat the Claimant “as if” he were a former relevant child and provide him with leaving care support under the Children Act 1989; or, ii. in all the circumstances, the sole justifiable outcome is that the Defendant must exercise its discretion and treat the Claimant “as if” he were a former relevant child and provide him with leaving care support under the Children Act 1989. Factual Background The timeline of events[4]The Claimant is a Turkish national who fled his home country sometime in October 2023 because he had been tortured by the police for participating in political rallies. On the 31 October 2023 he arrived in the UK where Home Office officials concluded that he was a 23 year old adult. He was then dispersed to adult asylum support accommodation at a hotel. Shortly thereafter the Claimant left that accommodation, because he felt uncomfortable being with adults, and he effectively sofa surfed between different family members. For the majority of each week the Claimant stayed with his maternal uncle and his wife and two children in a one-bedroom property. For the remainder of the week he stayed with other extended family members.[5]On the 26 March 2024 the Claimant’s immigration solicitors contacted the Defendant by completing an online Early Help Referral Form. That form informed the Defendant that the Claimant was a child claiming asylum who had a birth certificate certifying his date of birth and requested that the Defendant carry out an age assessment. The referral was progressed to the Defendant’s Leaving Care Team (LCT). On the 10 April 2024 the LCT declined to conduct an age assessment on the basis that the Claimant was not a looked after child and that an age assessment was not necessary for the purposes of deciding whether or how to exercise any of its functions under the relevant legislation.[6]Following the Defendant’s refusal to conduct an age assessment, the Claimant’s immigration solicitors informed the Claimant that they did not have expertise in challenging age assessments. The solicitor advised him that they could contact his local MP and gather further evidence of his age. The Claimant relied upon this advice. The local MP then referred the Claimant to the Refugee Council. The Refugee Council then conducted a screening interview with the Claimant and made a referral to the Defendant which was registered on 26 July 2024 as a safeguarding referral. The Claimant was, at the same time, put in contact with his current legal representatives.[7]On the 31 July 2024 the Defendant determined that the Claimant was a child in need and accommodated him under section 20 Children Act 1989. He became a looked after child at that date and remained so until his 18th birthday some 10 weeks later. On the 16 August 2024 the Defendant’s current legal representatives wrote to the Defendant seeking clarification as to its position on the Claimant’s age. The Defendant, on 19 August 2024, replied to say that the Claimant’s age and date of birth were accepted, that the Claimant would be accommodated until his 18th birthday but he would not be provided with leaving care support thereafter because he had not been in care for the requisite 13-week period.[8]On the 7 October 2024 the Claimant’s legal representative wrote to the Defendant with a request that the Defendant exercise its discretion to treat the Claimant “as if” he were a former relevant child. On the 11 October 2024 the Defendant replied to say it had not acted unlawfully in relation to the referral made on 26 March 2024; that it had correctly accepted the Claimant as a looked after child in July and that he would not have been in care long enough to acquire former relevant child status.[9]Then, on the 28 October 2024, the Claimant’s representatives sent a pre-action protocol letter challenging the Defendant’s refusal to exercise its discretion. By response dated 6 November 2024 the Defendant maintained its position. On the 12 November 2024 the Defendant terminated the Claimant’s accommodation placement and the Claimant moved back in with his maternal uncle. In response to a further pre-action letter the Defendant wrote to the Claimant’s representatives on the 3 January 2025 reiterating its previous response. The Claimant[10]The Claimant’s witness statement sets out his background, his political activities in Turkey and his arrest, detention and torture by the police. He explains his journey to the UK. The Claimant found it upsetting and frustrating not to have his stated age believed by officials and has difficulty in trusting strangers due to his previous experiences with the Turkish authorities. During the Home Office assessment the Claimant was distressed and banged his head against the interview table.[11]The Claimant subsequently had four counselling sessions provided by Enfield CAHMS. There is a letter of 10 December 2024 from his psychotherapist which explains the traumatic effect of Home Office officials not accepting his age on his mental health and his traumatic experiences more generally “seemed to create a negative cognition related to trust anyone and suffer from hallucinations and nightmares”. The Claimant has a history of self-harm and suicidal ideation.[12]Between November 2023 and the end of July 2024 the Claimant predominantly lived at his maternal uncle’s home for the majority of the week and for a few days a week he would go to stay at his other uncle’s home. Less frequently he was at his cousin’s property. The Claimant explained the difficulties he had staying with these extended family members; he was sleeping on the sofa, worried that he was a financial burden and resorted to self-harming. He felt isolated and depressed.[13]After his age was accepted, the Claimant was placed in age appropriate accommodation and he felt better supported and safe. He received advice from his social worker about cooking and buying clothes and accessed therapy sessions. Following the termination of his local authority accommodation the Claimant has returned to live with his maternal uncle in a one-bedroom property. His uncle’s wife and children have now left due to his uncle’s difficulties, having been diagnosed with schizophrenia. His uncle tells him to leave on a daily basis and the Claimant is struggling with his mental health. The referrals to the Defendant[14]The referral made on 26 March 2024 was made by the Claimant’s immigration solicitor, Naim Rahman, who completed an online referral form. That document is a template which asks a series of questions. The first question on the form is “Do you have Child Protection concerns?” to which the answer was “Yes”. The solicitor’s details are provided, then details of the Claimant, including his date of birth. The section entitled “signs of safety” contains the following information:[15]Whilst the Statement of Facts and Grounds contend that a score of 10 on the vulnerability scale indicated that the Claimant was extremely vulnerable, the Claimant’s advisors now accept, firstly, that the scoring was completed by the Claimant’s previous solicitor and secondly, that a score of 10 was ‘not very worried at all’.[16]Three attachments accompanied the completed form: an email confirming the Home Office age assessment, a pro forma letter dated 31 October 2023 from the Home Office confirming that the Claimant was assessed as being significantly over the age of 18 years based on his physical appearance and demeanour; and the Claimant’s birth certificate.[17]The Defendant, via its interim multi-agency safeguarding hub, then transposed those entries on to a ‘Referral and Information Record’ and recorded the following:
“INITIAL MANAGEMENT OVERSIGHT- AMBER This is an asylum seeking child who the Home Office disputes his age but his Solicitor is now requesting Age Assessment. Child's claimed age places him at 17yrs Progressed to Leaving care Service”
Progressed to Leaving care Service”[18]The form records the reason for contact as “Unaccompanied Asylum Seeking Children” and reconfirmed the initial Red/Amber/Green (RAG) rating of amber. The Defendant does not offer any explanation for that rating since the social worker involved, Ms Nnamah (the person transposing the details) have left the local authority.[19]A subsequent update is recorded on the form on the 10 April 2024 by Mr Luis Herrero, a service manager in the LCT. That update records the rejection of the age assessment request as follows:
“Update - 10/04/2024 Luis Herrero, Service Manager - LCT on 5th April 2024 has rejected Age Assessment request as LB is not a LAC to Enfield, nor are LA services being requested for LB. Luis view is that the solicitor themselves can challenge the Home Office decision directly by requesting that the age assessment is completed via the National Age Assessment Board (NAAB). The solicitor can also seek support in verifying LB’s presented birth certificate. Luis sought advice from Ben Feder, Practice Lead for Asylum and Immigration who is in agreement with Luis view and has provided guidance to support. Email therefore sent to the solicitor (referrer) to that effect; 10/04/24 15:08 - Email sent to nr@br-law.co.uk - uploaded to docs tab. No role for Enfield CSC. Solicitor advised accordingly”
No role for Enfield CSC. Solicitor advised accordingly”[20]The final RAG rating was green.[21]The email to Naim Rahman says:
“Thank you for your referral for LB DOB: 14.10.2006 with the request of an Age Assessment to be undertaken by the LA. As LB is not a looked after child to Enfield, nor are any services being requested of Enfield for LB to become looked after and/or provided with accommodation, we cannot assist with the Age Assessment. Our view is that you can challenge the Home office decision directly by requesting that the age assessment is completed via the National Age Assessment Board (NAAB) who will also be able to assist with verifying LB's presented birth certificate”
[22]Mr Rahman did not reply to the email. Subsequently, when the Claimant’s current solicitors enquired of Mr Rahman what action he took on receiving the email, he responded on the 25 November 2024 to say “We took no further action following the response of 10th April – our instructions were that LB was content with the accommodation, that it was suitable, and no safeguarding concerns were raised. We advised that we could investigate the possibility of obtaining an independent age assessment if so instructed.” The Proceedings to Date[23]The claim for judicial review was filed on 10 January 2025. Summary Grounds of Defence were filed on 13 February 2025 and the Claimant’s Reply was filed on 20 February 2025. Permission to commence judicial review proceedings was granted on the papers on 20 March 2025, together with an order that the claim be expedited.[24]There are further applications before the Court. An application for an extension of time for the filing of various documents as directed by paragraphs 4, 5 and 6 of the Order dated 20 March 2025 is agreed and therefore granted. The Claimant further seeks permission to rely on the psychiatric report of Dr Freedman; an Independent Needs Assessment report prepared by two Independent Social Workers and the Claimant’s second witness statement. The Defendant consents to the second witness statement of the Claimant being relied upon but opposes the applications to rely on the two reports because it is submitted that they are not reasonably required to resolve the issues at hand. I shall return to this issue later. The Legal Framework[25]Local authorities are under a duty to safeguard and promote the welfare of children within their area who are in need: s.17(1)(a) Children Act 1989. This is done by providing a range and level of services appropriate to those children’s needs. A child will be a child who is “in need” if he satisfies the following criteria:
“s.17(10) Children Act 1989: (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or (c) he is disabled, and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.”
[26]The extent and nature of the duty imposed by section 17 was considered by the House of Lords in R (G) v Barnet LBC [2004] 2 AC 208 as follows:
“32……It is implicit in section 17(1) that a local authority will take reasonable steps to assess, for the purposes of the Act, the needs of any child in its area who appears to be in need.”
[27]Section 20(1) Children Act 1989 provides that where a child is a “child in need” the local authority is under a duty to provide them with accommodation:
“(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or, (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with accommodation or care.”
[28]Age assessments are a tool to establish whether a person is an adult or a child. The status of an asylum seeker as an adult or a child is necessary in order to establish whether the Children Act duties and obligations apply. The part which such an assessment plays in the discharge of a local authority’s duty to safeguard children was considered by Lang J in R (KA) v Croydon LBC [2017] EWHC 1723:
“27. Section 17(1) of the Children Act 1989 ('the Act') imposes a 'general duty' on every local authority to 'to safeguard and promote the welfare of children within their area who are in need…by providing a range and level of services appropriate to those children's needs.'. 'For the purpose principally of facilitating the discharge' of that general duty, section 17(2) provides that every local authority is to have 'the specific duties and powers' in Part 1 of Schedule 2 to the Act. One of those duties is imposed by paragraph 3 of Schedule 2. This provides that where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of the Act at the same time as it assesses his needs for the purposes of other listed statutory provisions. … 31. The Act imposes no express duty on a local authority to do an age assessment. Nonetheless, a public body has a duty to take reasonable steps to equip itself with the information which is necessary to enable it to decide whether or not to exercise a statutory function: cf. R v Secretary of State for Education and Science ex p Tameside Metropolitan Borough Council [1977] AC 1014 per Lord Diplock at p 1065B. In order to equip itself to decide whether it has a duty under paragraph 3 of Schedule 2 to assess a child's needs, a local authority must take reasonable steps to investigate whether or not a person asking it for help is in fact a child.”
[29]When looked after children attain 18 years, a local authority will continue to owe duties towards them when they are eligible as a former relevant child. Those duties and entitlements are important, providing a legal entitlement to the former relevant child of a wide range of support which would not otherwise be available.[30]A relevant child is defined in s.23A(2) Children Act 1989 as a child who has left care having been an eligible child. Further, an eligible child is one who has been “looked after” (accommodated under s.20 Children Act 1989 or in care under s.31 Children Act 1989) for a prescribed period of time of 13 weeks which need not be continuous. (para 19B Sch. 2 Children Act 1989).[31]Where a child was previously looked after for a period of at least 13 weeks, s.23C provides that:
“23C Continuing functions in respect of former relevant children. (1) Each local authority shall have the duties provided for in this section onwards – (a) A person who has been a relevant child for the purposes of section 23A (and would be one if he were under eighteen), and in relation to whom they were the last responsible authority; and (b) A person who was being looked after by them when he attained the age of eighteen, and immediately before ceasing to be looked after was an eligible child, And in this section such a person is referred to as a “former relevant child”. (2) It is the duty of the local authority to take reasonable steps – (a) To keep in touch with a former relevant child whether he is within their area or not; and (b) If they lose touch with him, to re-establish contact.” (a) A person who has been a relevant child for the purposes of section 23A (and would be one if he were under eighteen), and in relation to whom they were the last responsible authority; and (b) A person who was being looked after by them when he attained the age of eighteen, and immediately before ceasing to be looked after was an eligible child, And in this section such a person is referred to as a “former relevant child”. (b) If they lose touch with him, to re-establish contact.”
[32]The Court of Appeal considered the implications of incorrect age assessments on section 23C rights in R (GE (Eritrea)) v. Secretary of State for the Home Department and Bedford Borough Council [2014] EWCA Civ 1490 and recognised that the specific purpose of s.23C is to ensure that a relevant child remains supported after his 18th birthday and:
“to provide some continuity of care and assistance after a child who has been looked after by the local authority becomes 18.”
[33]Notwithstanding the requirement to be accommodated for 13 weeks, the Court of Appeal in GE (Eritrea) held at §54 and §73 that “54…a local authority may use its discretionary powers to make good any unlawfulness that it has committed in the past and may, in some circumstances, be obliged to do so… 73 …it does not seem to me right in principle to rule out the need to consider any remedy for past breaches of duty in this field. Parliament chose to confer an entitlement to important rights on those who were in fact children at the relevant time. If, as it turns out, they have wrongfully been deprived of that entitlement, the possible need to remedy an injustice should be addressed.”[34]The discretionary power available to local authorities, and the principles in GE (Eritrea) were considered by Mr Justice Fordham in R (HP) v Greenwich Royal London Borough Council [2023] EWHC 744 (Admin) at §23 he opined:
“iv) The Discretionary Power – to choose to treat the affected individual as a former relevant child – is in the nature of a remedial power to “remedy”, and for “correcting”, the present “injustice” (§23iii above) arising from the past “unlawfulness” (§23ii above). I derive this further proposition from GE at §73 (Christopher Clarke LJ) and §96 (Davis LJ). v) It can be important to establish whether the Age/Needs Assessment was relevantly-flawed, and whether the consequence is a present denial of “former relevant child” status, because that will engage the Discretionary Power. I derive this proposition from the outcome in GE. There, the High Court had concluded that an Age Assessment was “unnecessary” (§20). The claimant accepted that – by the time of the Court of Appeal’s judgment – she was now aged 20 (§§1, 5). But the High Court’s conclusion was overturned: the remedy was remittal to the High Court for determination of the claimant’s age (§§77, 78, 101). This was important precisely because it could engage the Discretionary Power (§§70, 75, 79, 101). … vii) The duty to consider exercising the Discretionary Power will be triggered by a request by or on behalf of the affected individual; and delay in making that request can be a relevant consideration in the exercise of the Discretionary Power. I derive this proposition from GE at §75 (Christopher Clarke LJ), §78 (Sir Bernard Rix), §§95 and 98 (Davis LJ). viii) In considering whether to exercise the Discretionary Power, regard should be had to all the circumstances of the case, with relevance and weight being matters for the local authority’s reasonable judgment. I derive this proposition from GE at §55 (Christopher Clarke LJ: “much will depend on the circumstances… The matter would be … to be determined … in the circumstances applying”). As to relevance and weight, being in principle primarily matters for the decision maker’s reasonable judgment, this is reflected in GE at §99 (Davis LJ). ix) The circumstances of the case may involve matters of such obvious seriousness that the Discretionary Power can only be exercised favourably, as the sole justifiable outcome. I derive this proposition from GE at §54 (Christopher Clarke LJ: “In an extreme case the court could hold … that there was only one way in which the [decision-maker] could exercise [their] discretion”) and §96 (Davis LJ: “the court may even, exceptionally, compel such a result”). See too A (Enfield) at §54. x) One relevant consideration is the degree to which the relevantly flawed age or needs assessment stands to be criticised, including by reference to the degree of fault or blameworthiness. I derive this further proposition from GE, para 55 (Christopher Clarke LJ: “Much will depend on the circumstances, including … to what extent the authority … should be regarded as blameworthy”) and para 98 (Davis LJ: “it will be relevant for the local authority to consider whether [it] had acted fairly and reasonably at the time of the original age assessment or whether the erroneous initial age assessment was attributable to some culpable or unreasonable conduct”). See too R (A) v Enfield, para 55. xi) The degree of unfairness, blameworthiness, culpability or other serious maladministration may be what makes a favourable exercise of the Discretionary Power the sole justifiable outcome (§23ix above). I derive this proposition from GE at §54 (Christopher Clarke LJ: “In an extreme case the court could hold the unfairness was so obvious, and the remedy so plain, that there was only one way in which the [decision-maker] could exercise [their] discretion”), §96 (Davis LJ: “in cases of gross maladministration and conspicuous unfairness the court may even, exceptionally, compel such a result”). … xiv) Given that the statutory duties and entitlements owed to a “former relevant child” apply to an affected individual who was – as a historical fact – a “looked after child” when they turned 18, it may be relevant to the Discretionary Power that it does not involve the envisaged “continuity” of services. I derive this proposition from GE at §98 (Davis LJ: “Also potentially relevant [is] the fact that there will ordinarily not have been continuity between what the applicant now seeks by way of benefits and services as an adult and what the applicant had received as a child”).”
[35]Mr Justice Fordham went on at §24ii) to make observations about the idea of a ‘sole justifiable outcome’:
“One question is whether the circumstances are so powerful that the favourable exercise of the Discretionary Power is the sole justifiable outcome (para 23(ix), (xi) above). In such a situation the local authority cannot reasonably decline to exercise the Discretionary Power. It is right for the decision-maker to address whether the circumstances are of that nature. This could include an injustice seriously aggravated, including by virtue of blame or culpability. But there may be other reasons why a favourable decision is the sole justifiable outcome. These could include needs on the part of the affected individual which are so powerful and so pressing that it could not be reasonable to exercise the Discretionary Power unfavourably. Whether favourable exercise is the sole justifiable outcome is an important question. But it cannot exhaust the consideration that has to be given to the favourable exercise of the Discretionary Power. Any discretionary power is required to be exercised reasonably. If there is a sole justifiable outcome then, in the circumstances, the discretion hardens into a duty. Often, that will not be the case. What is left is the area of latitude, within which the Discretionary Power is exercised on the merits. Here, the local authority decision-maker exercises a choice, without rigidity but with open-minded consideration of the circumstances, to do what is evaluated as being the “right” thing on the “merits”
. And here —within the area of latitude for judgment and appreciation—the law will require that relevant considerations are taken into account.” Other Guidance[36]The statutory guidance “Care of unaccompanied migrant children and child victims of modern slavery” defines an Unaccompanied asylum seeking child as “a child who is claiming asylum in their own right, who is separated from both parents, and who is not being cared for by an adult who in law or by custom has responsibility to do so” and the Guidance explains that “The cohort of unaccompanied migrant children and child victims of modern slavery includes a wide range of children with a variety of circumstances that a local authority will need to be aware of in order to ensure that the child receives appropriate legal advice and support.” Further the Guidance sets out training and awareness expectations as follows:
“17. All those involved in the care of unaccompanied children and child victims of modern slavery should be able to recognise and understand the particular issues likely to be faced by these children.”
[37]This Statutory Guidance further provides:
“1. Unaccompanied migrant children and child victims of modern slavery, including trafficking, can be some of the most vulnerable children in the country. Unaccompanied children are alone, in an unfamiliar country and may be surrounded by people unable to speak their first language. Modern slavery includes human trafficking, slavery, servitude and forced or compulsory labour. Exploitation takes a number of forms, including sexual exploitation, forced labour, forced criminality, begging, organ harvesting and domestic servitude and victims may come from all walks of life. 2. Unaccompanied children are likely to be uncertain or unaware of their rights and whom they should trust. They are at increased risk of going missing, often leaving the care of those who would protect them to return to traffickers who will continue their exploitation. All groups may have experienced emotional trauma in their country of birth, on their journey to the UK or through their treatment by adults in the UK. 3. Local authorities have a duty to protect and support these highly vulnerable children. Because of the circumstances they have faced, unaccompanied migrant children and child victims of modern slavery, including trafficking, often have complex needs in addition to those faced by looked after children more generally. The support required to address these needs must begin as soon as the child is referred to the local authority or is found in the local authority area. It will be most effective where this support is provided through a stable, continuous relationship with the child.”
Analysis[38]Mr Greene, on behalf of the Claimant, contends that, when taken together, section 17 and section 20 Children Act 1989 essentially impose a duty upon a local authority to provide accommodation and support to any unaccompanied asylum-seeking children within their area. That contention disregards the definition of ‘family’ within section 17(10) as including any other person with whom the child has been living. Further I note that section 20(1)(c) provides for a situation in which a person has been caring for the child, on a temporary or permanent basis for whatever reason, and is subsequently prevented from providing him with accommodation or care.[39]Mr Harrop-Griffiths rightly points out that there is no free-standing duty to carry out an age assessment. As I have already set out, age assessments are a tool to establish the age of a potential user of services and thus direct them appropriately to adult or child services.[40]The question of whether a child is in need calls for an evaluative judgment by the local authority but that judgment must be based on reasonable inquiry. The assessment of need was considered by Helen Mountfield QC, sitting as a Deputy High Court Judge, in R(O) v London Borough of Lambeth [2016] EWHC 937 (Admin) at [15]-[18]:
“15. The duty of a local authority pursuant to paragraph 1 of schedule 2 to the Children Act 1989 is to take ‘reasonable steps to identify’ whether a child is in need. What those steps are is a matter for the local authority, subject to complying with public law requirements. Statutory guidance as to child in need assessments is set out in “Working Together to Safeguard Children”, dated March 2015, and departure from that guidance as to assessment without reasonable explanation would be a public law failing. However, that is not the suggestion in this case. 16. The duty to make reasonable enquiry is a duty to make those enquires which are either suggested by the applicant or which no reasonable authority could fail to undertake in the circumstances. 17. Whether or not a child is ‘in need’ for these purposes is a question for the judgement and discretion of the local authority, and appropriate respect should be given to the judgements of social workers, who have a difficult job. In the current climate, they are making difficult decisions in financially straitened circumstances, against a background of ever greater competing demands on their ever diminishing financial resources. So where reports set out social workers’ conclusions on questions of judgement of this kind, they should be construed in a practical way, with the aim of seeking to discover their true meaning (see per Lord Dyson in McDonald v Royal Borough of Kensington & Chelsea [2011] UKSC 33 at [53]). The way they articulate those judgements should be judged as those of social care experts, and not of lawyers. Nonetheless, the decisions social workers make in such cases are of huge importance to the lives of the vulnerable children with whose interests they are concerned. So it behoves courts to satisfy themselves that there has been sufficiently diligent enquiry before those conclusions are reached, and that if they are based on rejection of the credibility of an applicant, some basis other than ‘feel’ has been articulated for why that is so. 18. The converse is also true. An applicant parent who is seeking to persuade a local authority that they and their child are destitute or homeless, so as to trigger the local authority’s duties of consideration under section 17 Children Act 1989 is seeking a publicly funded benefit, to which they would not otherwise be entitled, which diverts those scarce funds from other Claimants. Even the process of assessment is a call on scarce public funds. It therefore behoves such an applicant to give as much information as possible to assist the decision-maker in forming a conclusion on whether or not they are destitute.”
[41]Whether or not any further inquiries are reasonably required on an initial Early Help referral will depend on the facts of the case. There may be circumstances in which sufficient information has been provided on the referral form to assure the local authority that the child in question is not in need and the requirement for further inquiries does not arise. There may be circumstances in which there is more limited information or gaps within that information or matters which give rise to concerns such that further inquiries by the local authority are reasonably required. The extent and need for those inquiries will be based upon the information presented in the referral form.[42]The actions of the Defendant in relation to the referral should be subject to close scrutiny. In R (KM) v Cambridgeshire County Council [2012] UKSC 23 Lord Wilson said at [36]:
“…in community care cases the intensity of the review will depend on the profundity of the impact of the determination.”
[43]Lord Wilson found that such an approach requires a high intensity of review but that the need for close scrutiny should also accord respect to the “distance between the functions of the decision-maker and the reviewing court…”[44]The Fresh Evidence: I remain conscious that it is not for me to determine the claim for assistance but rather to review the actions and decisions of the local authority on receipt of the referral form. In determining whether the Defendant acted unlawfully in relation to the Early Help Referral of 26 March 2024, I am concerned with the information that was available to the decision-maker or the evidence which was likely to have been available in response to any reasonable inquiries which should have been made as a result of the referral.[45]Where there is a dispute about the reasonableness of the inquiry which engages the Tameside duty, the “fresh evidence” which was not before the decision-maker can, in principle, be relevant to illustrate what the claimed reasonable inquiry would or could have elicited, so that “the evidence being proffered goes to the issue of what would have been discovered had due inquiry been made” (R v Haringey London Borough Council, Ex p Norton (1997) 1 CCL Rep 168, 180F–G).[46]In determining whether or not the local authority acted unlawfully in not making further inquiries on receipt of the March referral form I propose therefore to examine the form itself and other information provided and then examine the assumptions made and actions taken. I shall not take into account the fresh evidence at this point of my determination.[47]The form stands to be read as a whole. The response to the first question on the form confirmed that the referrer had child protection concerns, the next three responses confirm that the person with parental responsibility had not been informed about the referral and had not given explicit consent for information sharing. The form records that there were no child protection plan records for him; no child looked after periods; and no key agencies defined; with no immigration status recorded. The main areas of concern are summarised by noting that the Claimant has claimed asylum, that he had claimed to be a child, and his birth certificate supported that claim and there was a dispute about his age and he needed an age assessment. The vulnerability score is indicated at 10, “less worried”.[48]The issue is therefore: was that limited information sufficient to reasonably require a local authority to make further inquiries. The Statutory Guidance highlights the difficulties of dealing with unaccompanied migrant children- they are at risk of trafficking, slavery and exploitation and are likely to be uncertain or unaware of their rights. They are recognised as highly vulnerable children and they often have complex needs in addition to those faced by children in need more generally. Anxious scrutiny is required when dealing with such vulnerable children.[49]The local authority’s initial assessment of this form was that the Claimant was an asylum seeking child who was requesting an age assessment. The reason for the referral recorded correctly by the local authority was “Unaccompanied Asylum Seeking Children”. The rating was amber.[50]It is apparent that the information on the form was sufficient to correctly alert the first professional seeing that information (Ms Nnameh) to the fact that the Claimant may have been an unaccompanied asylum seeking child. That is because the form stated that he had claimed asylum and was a child. Further, there was a clear inference to be drawn that he was unaccompanied because the person with parental responsibility was unaware of the referral. That was a reasonable (and correct) inference for the person seeing the form to have made. The other details on the form are contradictory: they indicate there are child protection concerns but then put the vulnerability concerns at 10.[51]Notwithstanding the purpose of the referral appearing to be a request for an age assessment, the referral in my view put the local authority on notice that there potentially was an unaccompanied asylum seeking child in its area and that the person with parental authority was unaware of the referral. There is no further information as to where the child was staying or with whom. Given the risks to UASCs highlighted in the Guidance, it was in my view incumbent on any reasonable local authority to make further inquiries as to what this child’s situation was. There was a failure on the part of the local authority to make further reasonable inquiries at that point to establish whether this was a child in need.[52]The witness statement of Mr Herrero explains that he does not know why the reason for referral was recorded as UASC and that it may have been an incorrect assumption by a social worker who has now left the Defendant’s employment. In terms of providing justification for the actions for this local authority this is ex post facto justification but it does provide evidence as to what happened when the referral was passed on. For the reasons I have set out, I believe that was a reasonable inference from the limited information on the form. Mr Herrero confirms that when the matter was discussed with him, Michelle Ferdinand, the MASH service manager at the time, did not refer to the Claimant as a UASC and subsequently when the views of Mr Feder were sought, he was not informed that the query involved an UASC.[53]I note that Mr Herrero says that he considered the referral and all the information available on the 5 April and “the fact that the form says that a person with parental responsibility had not given their consent to information-sharing did not change his view”. The lack of someone with parental responsibility knowing of this child’s referral should have been sufficient, together with the other information on the form, to have alerted the Defendant that further information should be sought.[54]Mr Harrop-Griffiths points out that the Defendant then notified the Claimant’s immigration solicitor, Mr Rahman of the following:
“As LB is not a looked after child to Enfield, nor are any services being requested of Enfield for LB to become looked after and/or provided with accommodation, we cannot assist with the Age Assessment.”
[55]The email ends with the words “At this stage, Enfield Children’s Services will be taking no further action.” Mr Rahman later confirmed (in reply to the Claimant) that the Defendant had not contacted him further following this response and that his instructions were that the Claimant was content with his accommodation and it was suitable and that no safeguarding concerns were raised.[56]Mr Harrop-Griffiths says that this reply from Mr Rahman was important for three reasons: firstly, it indicated that the Claimant was aware that he could seek accommodation from the Defendant; secondly, that Mr Rahman was instructed not to seek accommodation from the Defendant; and thirdly it provides an explanation as to why there was no response to the email.[57]The Claimant’s witness statement explains that he did not know of his rights or options and that he only knew what his immigration solicitors told him. He explains that on speaking to “Ali”, (a friend of the Claimant who had also fled Turkey), he learned about his potential entitlements in or around February or March 2024 and he goes on to say:
“20…I remember my conversation with Ali as it was the first time that I felt hopeful that this was available to me as I had been really struggling and needed additional support that my relatives could not provide (given that they could only accommodate me for a couple of days at a time). Following my conversation with Ali, I spoke to my immigration solicitors (Bostanci & Rahman Solicitors) who confirmed to me that children in the UK are entitled to support provisions such as education services, age-appropriate accommodation and support for mental and physical health. They did not raise this as a possibility before. 21. I understand my immigration solicitors submitted a referral to Enfield LBC and requested Enfield LBC to carry out an age assessment. I understand from my lawyers that the referral was submitted on 26 March 2024. In April 2024, I was told by my immigration solicitors that their request for an age assessment to be undertaken had been refused Without waiving privilege, I remember my immigration solicitors informing me that they did not have expertise in age assessments and would not be able to assist with a court challenge to any age assessment decision(s). However, they informed me that they could contact my local MP and gather further supportive evidence. 22. At the time, as an asylum-seeking minor, I did not know of my rights or options to challenge Enfield LBC’s refusal. I only knew what my immigration solicitors told me. At the time, my mental health was deteriorating, and I did not feel that I could cope with finding new solicitors who did age assessments and go through any proceedings in addition to my asylum claim and my family situation. I did not even know where to begin to look for this type of solicitor. I was hopeful that contacting my MP would resolve the issue.”
[58]It is apparent that the Claimant’s motivation in making the referral was to obtain appropriate help, including accommodation given that his relatives could only provide accommodation for a couple of days at a time. He says that he told his immigration solicitors that he was not happy with his living arrangements and that was why he requested his immigration solicitors to request an age assessment. That evidence is in direct contrast to that of Mr Rahman who confirmed that the Claimant was not seeking accommodation. It may be that there has been some misunderstanding by Mr Rahman or miscommunication between solicitor and client. It is clear that in the Claimant’s subsequent contacts with his MP and the Refugee Council that the Claimant has consistently sought help with establishing his age, his accommodation needs and his mental health.[59]The statement by Mr Rahman is in contrast to what happened on the subsequent referrals, when inquiries were made by the Defendant and the Claimant was spoken to directly to ascertain his wishes and feelings and his requirement for accommodation became apparent.[60]Mr Harrop-Griffiths asks the Court to conclude that, had the Defendant asked Mr Rahman directly whether the Claimant sought accommodation and had he answered, he would have told them that the Claimant was content with his accommodation. Therefore Mr Harrop Griffiths contends that it is highly likely that the outcome for the Claimant would not have been substantially different if the failure to make reasonable inquiries had not occurred.[61]However, reasonable inquiries would have entailed more than asking the simple question- do you require accommodation?. A reasonable inquiry relating to a potentially vulnerable UASC would have entailed more than that single question. Therefore, if reasonable inquiries had been made as to the Claimant’s circumstances as a result of the 26 March referral, I find that it is likely that those inquiries would have included questions about the Claimant’s current living arrangements and whether they were appropriate or not. It is instructive that on the later referral, inquiries resulted in the Defendant determining that this was a child in need and in particular, in need of accommodation.[62]Given its failure to make reasonable inquiries, the local authority was not subsequently absolved of its duty to make those inquiries when it notified the Claimant’s solicitor of its decision and there was no further contact. I am not satisfied that the outcome would have been the same and it would have been likely that the Defendant would not have concluded that the Claimant was not a child in need at that time and did not require accommodation. Exercise of the Discretionary Power[63]I now turn to consider the implications of the Defendant’s failure to conduct reasonable inquiries. That failure or unlawfulness triggers the possible exercise of the Local Authority’s discretionary power to treat the Claimant as a former relevant child. I endorse fully the conclusions of Fordham J in his assessment of the matters to be considered in relation to the exercise of that power- the circumstances must be considered in full. The starting point is an acknowledgment that the discretionary power is one to be exercised by the local authority to remedy previous unlawfulness which has led to a present injustice. Therefore, once the court has identified unlawfulness it will usually be the case that the matter is referred back to the local authority with a direction for it to consider the exercise of its power.[64]On the facts of this case the local authority made an error in not undertaking further inquiries. That may be the product of the information on the form being relayed in an incomplete manner on to other departments, it may be a failure to read between the lines and appreciate that this was a child whose circumstances require further investigation. The nature of child protection work is such that professionals are required not to take limited information at face value but that they will, on occasions, need to look behind what is being presented to them. In this case the degree of blameworthiness was not towards the higher end of culpability. The conduct was regrettable but it did not fall within the more blameworthy category of cases in the range of unlawful decisions which come before these courts.[65]On the part of the Claimant, I note that there was little or no delay in making the request to the Defendant to exercise its power. The Claimant’s legal representatives were alive to the issue and sought to address it early on.[66]In terms of the consequence of the failure to make reasonable inquiries, I have made some observations above that it is not possible to conclude that the outcome would have been substantially the same. That is not the same as concluding that the local authority would have accommodated the Claimant at that point. Following two referrals from the Refugee Council, the Defendant quickly accommodated the Claimant under section 20. I bear in mind that the Refugee Council’s second referral was a specific safeguarding referral which required the Defendant to directly address its mind to child protection issues. It was following this second referral that the Claimant was accommodated.[67]On balance I have concluded that it would have been more likely than not that, had the Defendant made reasonable inquiries in response to the 26 March referral, the Claimant would have been deemed a child in need and further, on balance that the Claimant would have been accommodated. Had the Claimant been accommodated at that time, then he would subsequently have obtained the status of former relevant child.[68]I now turn to examine the consequences of the Claimant not having former relevant child status. The fresh evidence in the form of the independent social workers assessment sets out the Claimant’s current needs in terms of accommodation; a personal advisor and education and training as well as mental health support. That evidence is necessary to enable a full appreciation of the consequences of the unlawfulness of the Defendant. The consequences of not having being treated as a former relevant child are significant in this case when set against those needs.[69]It is also relevant to factor into a consideration of the exercise of discretionary powers the highly material fact that this Claimant has already been accommodated as a looked after child for a period of 10 weeks. It is only as a consequence of timing that he has lost out, by a period of 3 weeks, on achieving status as a former relevant child.[70]In the words of Fordham J, I must now consider whether this is a case in which there is a sole justifiable outcome such that the circumstances are such that the discretion to treat the Claimant as a former relevant child has hardened into a duty and the court should step in and direct a positive exercise of the discretion. The court in GE (Eritrea) generally anticipated that it would only be an extreme case that the court could hold that there was only one way in which the decision maker could exercise their discretion. In my view the unfairness must be so obvious and the remedy so plain that there was only one way in which the decision maker could exercise their discretion.[71]In this case the unlawfulness is not extreme but it has led to significant unfairness in the Claimant not being treated as a former relevant child. I have set out the other factors which in my view would need to be taken into account. In particular the fact that this Claimant has already been accommodated for a period of 10 weeks, together with his ongoing needs, are significant factors and in my view they would attract significant weight before a decision maker considering the exercise of its discretion. Those significant factors in combination indicate that if a decision maker were directed to exercise its discretion, the outcome in this case would be obvious. On the particular facts of this case, I therefore take the unusual step of directing that the discretion should be exercised in favour of the Claimant.[72]I grant the relief requested by the Claimant and ask Counsel to agree and draw up an order reflecting the terms of this judgment.