ABAJ -v- West Sussex County Council (anonymity order)

Administrative CourtCivilHigh CourtKing's Bench DivisionAnonymity Order

Case number: AC-2024-LON-003281

In the High Court of Justice
King’s Bench Division
Administrative Court

In the matter of an application for judicial review

8 November 2024

Before:

David Pievsky KC
sitting as a Deputy High Court Judge

Between:

The King
on the application of
ABAJ

-v-

West Sussex County Council

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimant and the Acknowledgment of Service filed by the Defendant

ORDER by David Pievsky KC sitting as a Deputy High Court Judge:

  1. Pursuant to CPR 39.2 there shall be no publication of the Claimant’s name, nor any other particulars likely to lead to his identification. In the proceedings, he shall be referred to as “ABAJ”. Pursuant to s.11 of the Contempt of Court Act 1981, there shall be no publication of his identity, nor any particulars likely to lead to his identification, in any report of, or otherwise in connection with, these proceedings.

  2. The application for permission to apply for judicial review is granted.

  3. The application for interim relief is refused.

  4. Costs in the case.

Observations

  1. It is arguable that the Defendant has acted unlawfully by relying entirely (or too heavily) on the view of the Home Office about the Claimant’s age, and not carrying out its own enquiries e.g. by meeting him. That appears to me to be arguable whether or not the Defendant was obliged to carry out a “full age assessment”. I cannot say, certainly at this stage, that it is highly likely that such an assessment would not have made a substantial difference to the outcome, as the Defendant has contended.

  2. Whilst I have granted permission, on the relatively low test that must be applied in this context, it does not automatically follow that interim relief is justified. A careful and close analysis of the balance of convenience (or “balance of justice”, as it is often described) is required. There are, in cases like this, risks going both ways which are not easy to compare. It is obviously undesirable for the Claimant to continue to be accommodated with adults, if he is a child. He is an asylum-seeker, with all of the potential vulnerability that flows from that. On the other hand, if the Claimant is to be treated as a child, he could be accommodated with children until this claim is resolved. If he is in fact an adult, that would not be desirable either, and could raise safeguarding issues. I do not consider that the evidence currently before the Court is such as to demonstrate that any harm or risk to the Claimant in continuing the current status quo would be such as to outweigh the considerations going the other way. Indeed, his evidence is that he is currently sharing a room with “another young person who is also struggling with his age”. I remind myself that there is no requirement for a “strong prima facie case” in this context, once a serious issue to be tried has been identified. But the strength of the case is relevant to the balance of justice. The Claimant’s case is properly arguable, as I have said; but I cannot say that it is any stronger than that. The balance of justice test comes down in favour of refusing interim relief.

  3. The claim does not appear to be one in which findings of fact and potentially oral evidence / cross-examination are required. It is a judicial review claim raising conventional public law issues about the legal adequacy of the Defendant’s decision-making. For that reason I have not transferred the matter to the Upper Tribunal, as is sometimes appropriate in age assessment claims.

  4. The Claimant says he is a child, and he is claiming asylum. Bearing in mind his vulnerability, and balancing this against the fundamental principle of open justice, I accept that the balance comes down in favour of anonymity.

Case management directions

  1. The Defendant and any other person served with the Claim Form who wishes to contest the claim or support it on additional grounds shall, within 35 days of the date of service of this Order, file and serve (a) Detailed Grounds for contesting the claim or supporting it on additional grounds, and (b) any written evidence that is to be relied on. For the avoidance of doubt, a party who has filed and served Summary Grounds pursuant to CPR 54.8 may comply with (a) above by filing and serving a document which states that those Summary Grounds shall stand as the Detailed Grounds required by CPR 54.14.

  2. Any application by the Claimant to serve evidence in reply shall be filed and served within 21 days of the date on which the Defendant serves evidence pursuant to 1(b) above.

  3. The parties shall agree the contents of the hearing bundle and must file it with the Court not less than 4 weeks before the date of the hearing of the judicial review. An electronic version of the bundle shall be prepared and lodged in accordance with the Guidance on the Administrative Court website. The parties shall, if requested by the Court lodge 2 hard-copy versions of the hearing bundle.

  4. The Claimant must file and serve a Skeleton Argument not less than 21 days before the date of the hearing of the judicial review.

  5. The Defendant and any Interested Party must file and serve a Skeleton Argument not less than 14 days before the date of the hearing of the judicial review.

  6. The parties shall agree the contents of a bundle containing the authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared in accordance with the Guidance on the Administrative Court website. The parties shall if requested by the Court, prepare a hard-copy version of the authorities bundle. The electronic version of the bundle and if requested, the hard copy version of the bundle, shall be lodged with the Court not less than [3] days before the date of the hearing of the judicial review.

  7. If permission has been granted on some grounds but refused on others, the Claimant may request that the decision to refuse permission be reconsidered at a hearing by filing and serving a completed Form 86B within 7 days after the date this order is served on the Claimant. The reconsideration hearing will be fixed in due course. However, if all parties agree and time estimates for substantive hearing allow, the reconsideration hearing may take place immediately before the substantive hearing. The Administrative Court Office must be notified within 21 days of the service and filing of Form 86B if the parties agree to this course.