Case No: CO/3197/2022
In the High Court of Justice
King’s Bench Division
22 November 2022
Upper Tribunal Judge Elizabeth Cooke sitting as a Deputy High Court Judge
The King on the application of LGM
London Borough of Hackney
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
- The Defendant is granted an extension of time until 13 October 2022 for the filing of its acknowledgement of service.
- The application for permission to apply for judicial review is granted.
- Pursuant to CPR r.39.2(4) the Claimant is granted anonymity; the Claimant’s identity shall not be disclosed directly or indirectly and thus application shall be known and listed only as LGM v Hackney.
- Pursuant to CPR r.21.2(3) the Claimant has permission to conduct these proceedings without the appointment of a litigation friend.
- The application for interim relief is refused.
- The matter is transferred t0 the Upper Tribunal.
- Costs are reserved
I take the above orders by number.
- The Defendant has provided an explanation for late filing. The Claimant disagrees with the reasons given but it is not appropriate to conduct a mini-trial on the point.
- The Defendant’s decision to assess the Claimant’s age at 26 to 28, and therefore to terminate support and accommodation for the Claimant as a child is challenged primarily on grounds of procedural fairness.
a. It is said that the procedure adopted for determining the Claimant’s age was unlawful because reliance was placed on an unlawful, non-Merton compliant interview conducted when the Claimant arrived in the UK. It is arguably irrational to rely upon material gathered during such an interview when a later interview is conducted. I appreciate that the Defendant’s decision was taken for a range of reasons but arguably reliance upon material gathered in an unlawful interview formed too great a part of them.
b. It is argued that too great a reliance was placed upon the Claimant’s physical appearance, contrary to guidance in the case law. I accept that this ground is arguable. I note that the decision contains a number of inexplicable comments about the Claimant’s physical characteristics; it is impossible, for example, to know what is meant by the assertion that the Claimant has “a husky and monotone voice for someone claiming to be 17 years old” (page 3 of the report). The comment is made that the Claimant’s body is fully developed; no explicit inference is drawn from this but one has to wonder, since the comment is made, whether the interviewers felt that this was evidence against the Claimant’s account of her age (which would arguably be irrational).
c. It is said that the Defendant ignored evidence given in support of the Claimant (given by Ms Holbach), whilst mentioning evidence given against her. Arguably this was unfair and reasons should have been given for the rejection of supporting evidence.
d, It is said that inadequate reasons were given for the very specific conclusion reached that the Claimant is 26 to 28 years old. Again, this is arguable.
I would add that the decision is poorly reasoned and appears to seize upon inconsistencies, particularly in childhood memories, and to draw tenuous conclusions from them.
The challenge is also made on a factual basis. I note the guidance given by the Court of Appeal at paragraph 9 of R (FZ) v London Borough of Croydon  EWCA Civ 59:
“We consider that at the permission stage in an age assessment case the court should ask whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. If so, permission should be refused. If not, permission should be granted…”
On that basis it is clearly right to grant permission in this case.
- The Defendant raises no objection to the anonymity application and there is no reason not to grant where the basis of the claim is that the Claimant says she is a minor.
- There is no objection from the Defendant to the application for the Claimant to proceed without a next friend, and the reasons given in support are cogent.
- The application for interim relief is refused because no explanation is given as to why the Claimant’s present accommodation is inadequate; indeed nothing is said about it. If there is a reason why interim relief is needed the Claimant has liberty to renew her application to the Upper Tribunal.
- The matter is transferred to the Upper Tribunal; I said above that the challenge is primarily on procedural grounds but the challenge is also factual, and it is well-established that the Upper Tribunal is therefore the correct venue.
- I have made no case-management directions as my understanding is that I should leave this to the Upper Tribunal.