BEN -v- West Northamptonshire Council (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: AC-2025-BHM-000097

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

14 May 2025

Before:

Her Honour Judge Carmel Wall

Between:

BEN By his Litigation Friend, TARAN CHEEMA

-v-

West Northamptonshire Council

Order

Notification of Judge’s Decision (CPR 54.11, 54.12)

Following consideration of the documents filed by the Claimant, the Defendant’s Acknowledgement of Service and Summary Grounds of Defence and the Claimant’s Reply

ORDER BY HER HONOUR JUDGE CARMEL WALL SITTING AS A JUDGE OF THE HIGH COURT

  1. Anonymity:
    a) Pursuant to CPR 39.2(4) and/or the Court’s inherent jurisdiction and/or s. 6 of the Human Rights Act 1998:
    i) the Claimant’s name is to be withheld from the public and must not be disclosed in any proceedings in public; and
    ii) the Claimant is to be referred to orally and in writing as BEN.
    b) Pursuant to s. 11 of the Contempt of Court Act 1981, there must be no publication of the identity of the Claimant or of any matter likely to lead to the identification of the Claimant in any report of, or otherwise in connection with, these proceedings.
    c) Pursuant to CPR 5.4C(4):
    i) the parties must within 7 days file a redacted copy of any statement of case filed, omitting the name, address and any other information likely to lead to the identification of the Claimant;
    ii) if any statement of case subsequently filed includes information likely to lead to the identification of the Claimant, a redacted copy omitting that information must be filed at the same time;
    iii) unless the Court grants permission under CPR 5.4C(6), no non-party many obtain a copy of any unredacted statement of case.
    d) Any person wishing to vary or discharge this Order must make an application, served on each party.
  2. Permission to apply for judicial review: Permission is granted on all grounds.
  3. Interim relief: The application for interim relief is refused.
  4. Transfer to the Upper Tribunal: The application for transfer is granted and the entire claim is transferred to the Upper Tribunal (IAC).
  5. Case Management Directions: These are referred to the Upper Tribunal (IAC) for consideration on receipt of transfer.
  6. Any person may apply to vary or set aside paragraphs 1, 3, 4 and 5 of this Order within 7 days of service upon them.

OBSERVATIONS AND REASONS

  1. Anonymity: Until the factual issue of whether the Claimant is a child has been judicially determined, an Anonymity Order is appropriate.  The continuation of the Order should be reviewed in the event the claim is resolved against the Claimant.
  2. Permission: I am satisfied the grounds are arguable.
  3. The Claimant’s overarching ground is that the age assessment was factually wrong. The Claimant further argues it was not Merton compliant nor compliant with procedural fairness.
  4. The Defendant’s social workers determined the Claimant was aged 22 based on their assessment of his physical appearance and demeanour. Although the Defendant was questioned, his answers did not play any part in the age assessment. The Defendant argues the assessment left no room for serious doubt such that a Merton compliant procedure was not required.
  5. It is arguable that the Claimant should not have been denied a Merton compliant assessment. The questioning by the social workers was arguably not in compliance with procedural safeguards. No assessment was made of his credibility. It is arguable that the physical characteristics relied on in the decision that he was aged 22 were not reliable indicators in the context of an age range between 18 (below which the interviewee would be a child) and 22 (the age attributed to the Claimant). It is arguable that in all the circumstances the assessment was not so “clear and obvious” that the procedural safeguards of a Merton assessment should properly have been avoided. In those circumstances the Claimant’s assertion that the assessment was wrong and he is in fact a child is arguable.
  6. Interim relief: On the Claimant’s case he is currently aged 16. He is accommodated as an asylum seeker in adult accommodation and seeks the care and support available to children pursuant to the Children Act 1989.
  7. By granting permission I am satisfied there is a real issue to be tried. However in applying the factors set out in R(KRA) v Cheshire East Council [2024] EWHC 575 (Admin) my conclusion is that the balance of convenience currently weighs in favour of refusing interim relief. Addressing those factors in turn:
    a) The claim is arguable but not strong. There is no independent corroborative evidence to support the Claimant’s own evidence as to age.
    b) The Claimant is currently accommodated and is not destitute, albeit the accommodation is not designed for children.
    c) On his case, the Claimant has experienced adverse life events but there are no other specific factors of vulnerability (such as disability or diagnosed mental illness, for example).
    d) While there are generic risks in accommodating children with adults, no specific risks have been identified in this case.
    e) The risk of losing support because of imminent majority is not present and not a factor to weigh in the balance.
    f) Local authority resources are finite and under pressure.
  8. Transfer to the Upper Tribunal: Where, as here, the primary challenge is one of fact, the Upper Tribunal (IAC) is a more appropriate forum to determine this issue in view of the experience of the Judges of that Tribunal in assessing age. It is not in the interests of justice for the procedural aspects of the claim to remain in the Administrative Court and be separated from the factual dispute in circumstances in which the Upper Tribunal has a sufficient judicial review jurisdiction to deal with all matters.