Case No: CO/4331/2022
In the High Court of Justice
King’s Bench Division
16 December 2022
Hugh Southey KC (sitting as a Deputy Judge of the High Court)
The King on the application of
AXI (A child, by his litigation friend SARAH TAIT)
London Borough of Hackney
Secretary of State for the Home Department (Interested party)
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 Acknowledgement of service filed by the Defendant.
ORDER by HUGH SOUTHEY KC (sitting as a Deputy Judge of the High Court)
- The application for permission to apply for judicial review is granted.
- The Claimant’s application for an anonymity order is granted pursuant to CPR 39.2(4) and/or the Court’s general case management powers in CPR 3.1(2).
- There be substituted for all purposes of this case, in place of references to the Claimant by name whether orally or in writing, references to “AXI”.
- Pursuant to CPR 5.4(c), a person not a party to the proceedings may obtain a copy of the statement of case, judgment or order of the court records, only if such statement of case, judgment or order has been anonymised.
- The Defendant shall provide the Claimant with age-appropriate accommodation and support pursuant to the Children Act 1989 forthwith until further order.
- The matter to be transferred to the Upper Tribunal. The matter to be
put before an Upper Tribunal judge within 14 days to make any case
- Liberty to apply on notice within 24 hours.
- This is a case where there is significant evidence both supporting the argument that the Claimant is a child. As a consequence, it is arguable that as a fact the Claimant is a child (applying the approach in R(FZ) v London Borough of Croydon  EWCA Civ 59).
- The public law arguments may be subsidiary to the primary issue of the Claimant’s age but I would not want to restrict what the judge considers.
- The fact that it is arguable that the Claimant is a child justifies the making of an anonymity order. However, that order should be reviewed by the judge at the conclusion of the substantive hearing.
- There is clearly a serious issue to be tried in light of the grant of
permission. It appears to me that the balance of convenience favours the grant of interim relief. Given that the Claimant may be a child, it is important that he receives necessary support until the issue is resolved. There is no adequate relief that can ordered after the substantive hearing for any lack of support.
- Given that there is a need to determine the age of the Claimant, it is clear that the case should be transferred to the Upper Tribunal (applying the approach in FZ).
- It appears to me that the Upper Tribunal should case manage the hearing going forward.