JR 262's Application for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Mr Simpson KC sitting as HCJ |
| Judgment Date | 27 September 2023 |
| Neutral Citation | [2023] NIKB 93 |
| Court | King's Bench Division (Northern Ireland) |
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Neutral Citation No: [2023] NIKB 93
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: SIM12266
ICOS No: 23/019343/01
Delivered: 27/09/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY JR 262
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF BELFAST HEALTH & SOCIAL
CARE TRUST
___________
Stephen McQuitty (instructed by Phoenix Law, Solicitors) for the Applicant
Andrew Montgomery (instructed by the Directorate of Legal Services) for the Respondent
___________
SIMPSON J
Introduction
[1] The applicant in this case is a minor and an Eritrean national. He will be 18 in
January 2024. He challenges the alleged failure of Belfast Health and Social Care
Trust to provide accommodation for him as a ‘separated child.’ The Committee on
the Rights of the Child, in its General Comment No.6 (2005) provides the following
definition:
“Separated children” are defined as children who have
been separated from both parents, or from their previous
legal or customary primary care-giver, but not necessarily
from other relatives. These may, therefore, include
children accompanied by other adult family members.
[2] Anonymity was granted to the applicant by Scoffield J. Initially the challenge
was brought against both the Trust and the Home Office, but the case proceeded
only against the Trust, “the respondent.”
[3] The original Order 53 statement relied on wide-ranging and diffuse grounds
of challenge: breach of statutory duty under Articles 18, 21 and/or 66 of The
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Children (Northern Ireland) Order 1995 (“the 1995 Order”); breach of the relevant
policy, including a failure to act in the child’s best interests or to make a best
interests determination, or to carry out an adequate consultation; irrationality (both
as to outcome and leaving relevant matters out of account); breach of the applicant’s
rights under article 8 of the European Convention on Human Rights (“ECHR”) and
his rights under article 14 ECHR, in conjunction with article 8. However, as the case
opened before me it became clear that the applicant’s focus was on the respondent’s
obligations under, and the interpretation of, Article 21 of the 1995 Order, without the
applicant formally abandoning any other ground of challenge.
[4] Scoffield J listed the matter for a rolled-up hearing on 14 September 2023. I
was provided with two trial bundles of factual material, skeleton arguments from
both counsel and a bundle of authorities comprising statutory provisions and case
law. Those bundles included submissions made by the Children’s Law Centre, an
intervener in the proceedings. I have read and considered all the documentation in
the bundles. I do not intend to set out in detail the factual events, but my failure to
do so (in an effort to keep this judgment as short as feasible) does not mean that
some matter not specifically mentioned was not considered by me.
[5] I am indebted to both counsel for their skeleton arguments and their
well-marshalled oral submissions.
[6] There were a number of factual disputes which arose in the affidavits filed in
the case — two from the applicant’s brother, two from the applicant’s solicitor
(Sinead Marmion) and one for the respondent, sworn by Joanne Mayes. However, it
has long been the case that a judicial review court is not the forum for a fact-finding
exercise, and where these disputes have arisen, I have not sought to resolve them.
Background
[7] The application was grounded on an affidavit filed by the applicant’s brother,
AB (not his actual initials). AB is presently 21, and acts as the applicant’s next friend
in these proceedings. His affidavit records the history of their joint journey from
their home country to Northern Ireland, which I set out in brief compass.
[8] In 2009 the applicant, AB and their mother fled Eritrea for Ethiopia after the
boys’ father was imprisoned for seeking to escape conscription. Thereafter, they had
no contact with their father and do not now know whether he is alive or dead.
Around 2017 they left Ethiopia for Sudan, staying there for only some 9 months. The
family then attempted to travel from Sudan to Turkey, using what AB believes were
false documents. However, their mother was prevented from leaving Sudan, so that
only the applicant and his brother travelled to Turkey, being then aged 11 and 15
respectively. Since then, according to AB, they have not seen or had any contact
with their mother. The boys then travelled from Turkey to Greece, then to
Macedonia, Serbia, Romania and Belgium. From Belgium they travelled to Ireland,
before making their way to Belfast, arriving in December 2021.
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