Claim number: AC-2023-LON-002756
In the High Court of Justice
King’s Bench Division
29 September 2023
Mr Justice Johnson
The King on the application of
London Borough of Merton
On an application for interim relief
Following consideration of the documents lodged by the claimant and the defendant
ORDER by Mr Justice Johnson
- The claimant shall hereinafter be referred to in these proceedings as ODN. Pursuant to CPR rule 39.2(4) there shall not be disclosed in any report of the proceedings the name or address of the claimant or any details leading to the identification of the claimant and the claimant, if referred to, shall only be referred to as ODN.
- Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been anonymised such that: (a) the claimant is referred to in those documents only as ODN; and (b) that any reference to the names of the claimant be deleted from those documents.
- The application for interim relief is adjourned to the judge considering the application for permission to claim judicial review.
- The parties shall urgently cooperate with a view to procuring an independent, jointly instructed, expert to report on the claimant’s care needs and the extent to which these can (or cannot) be provided by the claimant’s mother. In particular:
(1) The defendant shall, within 3 working days of the service of this order, identify 3 people who may be able to carry out such an assessment (or shall give reasons for not doing so).
(2) The claimant shall, within 2 working days of receipt of those 3 names, select one to be a joint independent expert (or shall give reasons for not doing so) and shall confirm that the expert will be given access to the claimant’s home for the purpose of carrying out an assessment.
(3) The defendant shall then, within 3 working days send a joint letter of instruction to the expert, seeking a report as soon as is practicable.
- The defendant shall, with its acknowledgement of service, inform the court of the steps that have been taken to comply with paragraph 4 above and, if a report is to be made available, when it will be available.
- Any person affected by this Order may apply on notice to all parties to have this Order set aside or varied.
The claimant is a child and has significant medical difficulties. The non-disclosure of her identity is necessary in order to protect her interests pursuant to rule 39.2(4) of the Civil Procedure Rules and section 11 of the Contempt of Court Act 1981 and rules 5.4C of the Civil Procedure Rules.
This is a concerning case, made more (and unnecessarily) difficult because of the factual issues between the parties.
The claimant has a high hurdle to secure mandatory interim relief before the summary grounds have been filed. On the face of it she does have very significant care needs which cannot satisfactorily all be met by her mother. On the other hand, the defendant says (and this does not seem to be denied) that the defendant has not been permitted access in order to assess those needs. The defendant has proposed an extensive package. It appears that the claimant is at school until 4.30, and a home carer is present between about 6pm and 9pm when she is settled in bed. The claimant’s mother says she needs help at night, and the defendant has offered the provision of 6 nights of care a month. The claimant’s mother clearly has her own difficulties, but it does not appear to be suggested that she is unable to provide any care. In the absence of the defendant being allowed access to carry out an assessment, I do not consider that a sufficiently strong case has been shown that the defendant has acted unlawfully so as to merit the grant of interim relief. Further, I do not consider that the balance of convenience merits the making of a mandatory order for the relatively short period of time between now and the time when a decision will be made on the application for permission to claim judicial review (at which point the court will have the benefit of summary grounds).
The case is, though, crying out for a more cooperative approach between the parties. I have, at paragraph 4, provided a possible way forward. If the parties take that up then the court will be in a much better position to assess the application for interim relief. If either party refuses to engage, then they will need to explain why.