MM -v- Westminster City Council (anonymity order)

Administrative CourtCivilHigh CourtKing's Bench DivisionAnonymity Order

Case number: AC-2024-LON-003046

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

In the matter of an application for judicial review

8 November 2024

Before:

David Pievsky KC
sitting as a Deputy Judge of the High Court

Between:

The King
on the application of
MM

-v-

Westminster City Council

Order

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 Acknowledgment of service filed by the Defendant

ORDER by David Pievsky KC sitting as a Deputy Judge of the High Court:

  1. Pursuant to CPR 39.2 there shall be no publication of the Claimant’s name, nor any other particulars likely to lead to his identification. In the proceedings, he shall be referred to as “MM”. Pursuant to s.11 of the Contempt of Court Act 1981, there shall be no publication of his identity, nor any particulars likely to lead to his identification, in any report of, or otherwise in connection with, these proceedings.
  2. The Claimant’s application for an extension of time to file and serve a Reply pursuant to CPR 54.8A by 4pm on 14 October 2024 is granted.
  3. The Defendant has permission to rely on the witness statement of Marcus Padraig Bara dated 3 October 2024.
  4. The application for permission to apply for judicial review is granted.
  5. The application for interim relief is refused.
  6. The claim is transferred to the Upper Tribunal.
  7. Costs in the case.

Observations

  1. Whilst the Defendant has pointed to a number of reasons which may justify scepticism about the Claimant’s account, I cannot say that he has no properly arguable case. He has copies of what he says is a birth certificate, and a registration document. He has Mr Verney’s considered view that these documents appear to be genuine. Mr Bara is evidently more sceptical but does not say in terms that the documents are not or cannot be genuine. I cannot resolve at this stage the dispute about that. The test I have to apply is low. Taken at its highest, and notwithstanding the very significant difference of 9 years between the parties’ cases on the Claimant’s age, I consider that his case could properly succeed in a contested factual hearing.
  2. Whilst I have granted permission, on the relatively low test that must be applied in this context, it does not automatically follow that interim relief is justified. A careful and close analysis of the balance of convenience (or “balance of justice”, as it is often described) is required. There are, in cases like this, risks going both ways which are not easy to compare. It is obviously undesirable for the Claimant to continue to be accommodated with adults, if he is a child. On the other hand, if the Claimant is to be treated as a child, the Defendant says he “would” be placed with a foster parent, potentially alongside another child, until this claim is resolved. If he is in fact an adult, that would not be desirable either, and could raise safeguarding issues (in circumstances where his overall credibility is currently unknown) as well as potentially undermining the consent of the relevant foster parents. I do not consider that the evidence currently before the Court is such as to demonstrate that any harm or risk to the Claimant in continuing the status quo would be such as to outweigh the considerations going the other way. I remind myself that there is no requirement for a “strong prima facie case” in this context, once a serious issue to be tried has been identified. But the strength of the case is relevant to the balance of justice. The Claimant’s case is properly arguable, as I have said, applying the relevant test; but I cannot say that it is any stronger than that. The balance of justice test comes down in favour of refusing interim relief.
  3. I will follow the normal course and transfer the case to the Upper Tribunal for a trial on age.
  4. Whether the Defendant should be entitled to rely on Mr Bara’s statement is not seriously in dispute. The Claimant has made points about the weight properly to be attached to it, and whether he is to be treated as an “expert” or not. These are matters for the Upper Tribunal to consider, if relevant.

    Signed: David Pievsky KC

    Date: 8 November 2024