Case number: AC-2023-LON-000105
In the High Court of Justice
King’s Bench Division
9 October 2023
Mr Benjamin Douglas-Jones KC, sitting as a Deputy Judge of the High Court
The King on the application of
Essex County Council
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, including the amended witness statement of the Claimant dated 22 September 2023, the statement of Penelope Bird dated 22 September 2023 and the Reply, and the Acknowledgement of Service filed by the Defendant:
UPON the court considering the Claimant’s application for anonymity pursuant to CPR 39.2(4) and being satisfied that non-disclosure of the identity of the Claimant is necessary to protect his interests;
UPON the Court’s consideration of the Claimant’s application for permission to file further witness statements;
UPON the Court’s consideration of the Claimant’s application for permission to rely upon a Reply;
UPON the Court’s consideration of the Claimant’s application for permission to bring the claim out of time if needed;
UPON the Court considering the Claimant’s application to apply for permission to apply for judicial review;
UPON the Court considering the Claimant’s application for expedition;
AND UPON the Court considering the Claimant’s application for interim relief in the form of an order requiring the Defendant to provide care leaver support
ORDER by Mr Benjamin Douglas-Jones KC, sitting as a Deputy Judge of the High Court
- The Claimant shall be afforded anonymity, to be referred to as “AS”. The identity of the Claimant shall not be disclosed outside these proceedings. There shall not be disclosed in any report of the proceedings the name or address of the Claimant or any details leading to the identification of the Claimant.
- The matter shall be listed as “R (on the application of AS) v Essex County Council”.
- Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been anonymised such that: (a) the Claimant is referred to in those documents only as AS; and (b) any identifying reference to the Claimant be deleted from those documents.
- Any person, including members of the press, may apply to the Court to vary or discharge this Order on seven days’ notice to the parties.
- I grant permission to the Claimant to file his reply; see The Administrative Court Judicial Review Guide 2023, at 8.5.
- I grant permission to the Claimant to file the amended witness statement of the Claimant dated 22 September 2023 and the statement of Penelope Bird dated 22 September 2023.
- The application for permission to apply for judicial review is refused.
- The claim for interim relief is dismissed.
- The costs of preparing the Acknowledgement of Service are to be paid by the Claimant to the Defendant, summarily assessed in the sum of £6,210.00.
- The Claimant has the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amount of costs that the Claimant shall pay shall be determined on an application by the Defendant under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any objection by the Claimant to the amount of costs claimed shall be dealt with on that occasion.
Permission to seek Judicial Review
- The Court notes that the permission threshold in age assessment disputes is substantially lower than in other claims for judicial review, reflecting the unusual nature of such cases and acknowledges that the question for the Court is “whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing” (R (FZ) v London Borough of Croydon  EWCA Civ 59 [§9]).
- I address the individual grounds and sub-grounds as follows:
(1) Ground 1(a)- interpretation: the Claimant was asked during the age assessment whether he could understand the proceedings. He confirmed that he could. The procedure was fair.
(2) The second “Ground 1(a)”- credibility: the challenge here is not a public law challenge but a merits based one. The assessment was holistic. The complaint does not expose unlawfulness or irrationality.
(3) Ground 1(b)- assessors’ reasoning: the illustrative examples underscore that the reasoning is neither irrational nor incomprehensible.
(4) Ground 1(c)- reliance on physical appearance and demeanour: there is no basis for the suggestion that assessors gave undue weight to the Claimant’s appearance. They were entitled to weigh it in the way they did. This ground is without merit.
(5) Ground 1(d)- the interview process and the ACDS Guidance: this is without merit, in particular, insofar as it is predicated on an alleged breach of Article 4 of ECAT and Article 4, ECHR.
(6) Ground 2- Breach of duty of inquiry: the assessors’ approach to the documents on the particular facts of this case was unimpeachable; the views of Shay O’Byrne were taken into account; and the repeated assertion concerning Article 4, ECAT adds nothing when the assessors’ approach is considered.
(6) Ground 3- precedent fact: I am not satisfied that there is a realistic prospect or arguable case that the court would reach a conclusion that the Claimant was of a younger age than that assessed by the local authority. There is no material here to found such a belief.
- The Claim is not arguable and I refuse permission to claim judicial review.
Promptness and expedition
4. I would not have refused permission on the ground that the Claim was not prompt had it been meritorious but in light of my reasons above, this, like expedition, is an issue which I need not resolve.
5. The interim relief sought and/or its terms are not clear. In any event in light of my decision on permission, the balance of convenience is against such an order I refuse the application.