AI -v- Achieving for Children and another (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Case number: CO/72/2023

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

16 March 2023

Before:

Mr Justice Andrew Baker

Between:

The King on the application of
AI

-v-

Achieving for Children

Royal Borough of Windsor and Maidenhead

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12) and for interim relief
Following consideration of the application bundle
ORDER by the Honourable Mr Justice Andrew Baker

  1. The application for permission to apply for judicial review is granted as against the Second Defendant only. As against the First Defendant, these proceedings are dismissed with no order as to costs.
  2. The Claimant is granted anonymity within the proceedings and shall be referred to as ‘AI’.
  3. This Claim is transferred to the Upper Tribunal for a final determination of the Claimant’s age.
  4. As between the Claimant and the Second Defendant, costs in the case.

Observations

  1. I consider it reasonably arguable that the Claimant’s claim to be still 17 (d.o.b. 11 Tir 1384 (Iranian), i.e. 2 July 2005) might be established upon a final determination by the Upper Tribunal. Without limiting the matters it will be open to the Claimant to rely on, I consider in particular that: the assessment that the Claimant so obviously appeared to be an adult, rather than 17 as he claims, that it should be assumed he is an adult in the absence of compelling contrary evidence, is doubtful; and the credibility concerns the age assessors record in their decision are arguably over-stated, and well arguably irrelevant to whether the Claimant’s consistent claim as to his date of birth should be disbelieved.
  2. I am not persuaded that interim relief should be ordered, save that I grant the application for anonymity. I trust that the Upper Tribunal will undertake a final fact-finding as to the Claimant’s age with expedition, but realistically the Claimant cannot expect to have a decision before, on his own case, he will have turned 18 in 3½ months’ time. I do not consider that the risk of harm to the Claimant from being treated (for accommodation and support) as an adult rather than as a youth in the last few months of childhood, if his claimed age is upheld, outweighs the prejudice to the Second Defendant in being required to put different arrangements in place for the Claimant over the next few months only to be vindicated, if the finding of fact is that the Claimant is already an adult. The justice of this case, as it seems to me, will be amply served, if the Claimant’s claimed age is upheld, by the Claimant then having a binding declaration as to his age, with a judgment of the Upper Tribunal in his favour, for the purpose of engagement with local and/or national authorities in this country going forward.
  3. There was never any proper basis for including the First Defendant as a defendant. The footnote to paragraph 1 of the Claimant’s Statement of Facts and Grounds indicates that those representing the Claimant should have appreciated full well that the administrative authority with responsibility that would be the only proper defendant to any claim was the Second Defendant.
  4. Given the immediate transfer to the Upper Tribunal for a determination as to the Claimant’s age, I do not set any further directions as they will be a matter for a designated Upper Tribunal Judge promptly following transfer.