MAM -v- Medway Council (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: AC-2024-LON-001529

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

15 July 2024

Before:

Kirsty Brimelow KC sitting as a Deputy High Court Judge

Between:

MAM (by his litigation friend, Joshua Singer)

-v-

Medway Council


Order

Notification of the Judge’s decision on the applications for permission to apply for judicial review (CPR 54.11, 54.12), for interim relief (CPR 16.1) and for anonymity (CPR 39.2)

Following consideration of the documents lodged by the Claimant and the Acknowledgement(s) of service filed by the Defendant

ORDER by Kirsty Brimelow KC sitting as a Deputy High Court Judge

Judicial Review

The application for permission to apply for judicial review is granted.

Interim Relief

The Defendant is to provide suitable accommodation to the Claimant pursuant to section 20 of the Children Act 1989 and any further appropriate support under the Children Act 1989 that the Defendant would provide to any unaccompanied child in its area forthwith until the final conclusion of these proceedings, to include any future proceedings in the Upper Tribunal, or until further order.

Anonymity

2. The Claimant’s application for anonymity is granted, both in respect of himself and the two other individuals.

3. There be substituted for all purposes in this claim, in place of reference to the Claimant by name, and whether orally or in writing, reference to the letters “MAM”, and the letters “AA” and the letters “SRS”.

4. The Court file is to be retained by the Court and marked “Anonymised”. Pursuant to CPR 5.4C, a person who is not a party to these proceedings may obtain a copy of pleadings, a Judgment or Order from the Court records only if pleadings, Judgment or Order from the Court records had been anonymised such that the Claimant is referred to as MAM in those documents and any address has been removed.

5. Pursuant to CPR r.39.2 reporting restrictions apply as to the disclosing of any information that may lead to the subsequent identification of the Claimant. In particular, disclosure of the Claimant’s name or address is prohibited.

Procedural Orders

6. Pursuant to CPR 54.8(4)(b) permission is granted to the Claimant to file a Reply, dated 3 June 2024 to the Summary Grounds of Defence dated 23 May 2024.

7. Pursuant to CPR 54.15, permission is granted to amend the Claim to include a further ground (ground three).

8. Permission is granted to file the witness statement of Niki Hadjivasiliou, dated 27 June 2024 and accompanying exhibits.

9. Permission is granted to file the witness statement Ghulum Hazrat dated 14 June 2024.

Transfer

10. Pursuant to section 31A(3) of the Senior Courts Act 1981, as inserted by section 19 of the Tribunals, Courts and Enforcement Act 2007, this matter is to be transferred to the Upper Tribunal for a factual determination of the Claimant’s age.

11. Liberty to apply.

12. Costs in the case

Observations

Permission

1. Applying R(FZ) v Croydon LBC [2011] EWCA Civ 59 the claimant has shown that there is a properly arguable case that the age assessment was not R (B) v Merton London Borough Council [2003] EWHC 1689 compliant, on the facts, taking into account the evidence of the defendant’s reliance on material that appears to be a cut and paste of assessments of AA and SRS, the claimant’s evidence and the extent of enquiries outside the interviews. It also is arguable that the defendant’s decision was wrong as a matter of fact, taking into account all material, including the statement of Ghulam Hazrat (R(A) v Croydon LBC [2009] 1 WLR 2557). Finally, it is arguable that the defendant’s failure to reconsider the claimant’s age was irrational (ground three). In considering ground three, case management directions may be given in the Upper Tribunal as to the defendant’s position on in relation to this ground.

Interim relief

2. By granting permission, this means that there is a serious/real issue to be tried, as is accepted by the defendant. Therefore, in considering whether the balance of convenience lies in favour of granting the interim order it is necessary to balance the harm to the claimant if interim relief is not granted and the claim later succeeds against the harm to the defendant and third parties that would be caused if interim relief is granted and the claim later fails (R(Medical Justice) v Secretary of State for the Home Department [2010] EWCH 1425 (Admin) applying American Cyanamid Company v Ethicon Limited [1975] AC 396).

3. It is noted that, on the claimant’s claimed age, he will turn 18 years’ old on 1 January 2025. The claimant was accommodated as a child until February 2024 and the required accommodation and support provided by interim relief is for a period which may alter in relation to accommodation after six months. However, the claimant would still be entitled to ongoing support under the leaving care regime of the Children Act 1989 as a former relevant child. The defendant argues that the case is weak and that there are more deserving causes for the resources allocation. However, the defendant does not address the limited timeline which mitigates the harm.

4. The harm to the claimant is evidenced by Dr. Galappathie as moderate depression, PTSD and a generalised anxiety disorder. This is disputed by the defendant in light of other evidence that the claimant is happy. However, the claimant also states that his mental health has deteriorated since the age assessment and since being in his current adult accommodation. He says that he fears the men in the hotel and that there are drugs and “other activities” that he does not “want to be a part of.” In addition, Niki Hadjivasiliou records information from an NGO that the claimant is “very stressed and terrified having to share a room with grown adults”. The Claimant communicated that he is feeling low and completely hopeless and has contemplated suicide. The Red Cross confirms that the claimant is not receiving “the support he needs and wants for his mental health and so is at risk of further deterioration.”

5. Considering evidence from multiple sources that the claimant’s mental health has deteriorated since he was moved into adult accommodation, I find that the balance of convenience lies in favour of the claimant and so grant interim relief.

Procedural matters

6. The statement of Niki Hadjivasiliou of Wilson Solicitors (the solicitors) is filed in support of the interim relief application and permission is granted to rely upon it. The information within the statement was only provided to the solicitors on 26 June 2024.

7. The statement of Ghulam Hazrat, resident in Afghanistan, is filed in support of interim relief and judicial review application. Permission is granted to rely upon it. The difficulties obtaining the statement due to lack of easy communication are accepted.

8. As to permission granted to the Claimant to file a reply and amend the Claim to include a further ground, I have taken account of prejudice to the defendant and good administration. The matters relied upon by the Claimant in ground three were raised by the Claimant but not separated into a specific ground. The reply deals with a matter raised by the defendant for the first time (Austrian identity document) and otherwise argues matters in relation to the Claimant’s mental health that are apparent from the documents already filed.

Anonymity

9. I bear in mind the importance of the open justice principle and consider that the anonymity order is necessary and proportionate to protect the interests of a child and to protect the interests of the Claimant and the two people referred to in support of the Claim in the administration of justice. Further, it is an appropriate application of this exception to the open justice principle whilst the age of the Claimant is under dispute (CPR 39.2).

Transfer

10. Following the Court of Appeal guidance in R(FZ) v London Borough of Croydon [2011] EWCA Civ 59 and pursuant to section 31A (3) of the Senior Courts Act 1981, as inserted by section 19 of the Tribunals, Courts and Enforcement Act 2007, this is a suitable case to transfer to the Upper Tribunal for a finding of fact as to the claimant’s age.