CoA Local Authority Housing

Holmes-Moorhouse v Richmond-upon-Thames LBC [2007] EWCA Civ 970
(Court of Appeal; Auld, Rix and Moses LJJ; 10 October 2007) [2008] FLR (forthcoming)

Before their separation the appellant father and the mother lived with their four children in council accommodation. By consent the court ordered that the father leave the home and that the children should live with him on alternate weeks under a shared residence order. The father applied to the local housing authority for assistance as a homeless person under Part VII of the Housing Act 1996. The housing authority accepted that he was homeless and eligible for assistance but took the view that he was not in priority need, either in respect of the children or on any other grounds. That decision was upheld on review. On appeal, the county court decided that the housing authority was entitled to take into account that it would be required to provide two houses, that for part of the time the houses were likely to be under-occupied and concluded that the review decision disclosed no error of law. The father appealed on the ground that the order of the family court making a shared residence order determined whether the appellant was a person with whom dependent children might reasonably be expected to reside pursuant to s 189(1)(b) of the Housing Act.

Held - allowing the appeal -

(1) A s 8 order under the Children Act 1989 was not dispositive of the question whether a dependent child might reasonably be expected to reside with the appellant. The local housing authority was required, pursuant to s 193(1) of the Housing Act, to satisfy itself of the reasonableness of that expectation.

(2) In considering the weight to be attached to a shared residence order by the housing authority there was a distinction to be drawn between cases where the order was made despite opposition and those where it was made by consent. In contested hearings there was an obligation on the family court to consider the parents' capability to provide accommodation pursuant to s 1(3)(f) of the 1989 Act and thus no room for a fresh assessment by the authority to displace a conclusion that the expectations of the parent would be reasonable. Where an order was made by consent the authority was obliged to consider afresh the reasonableness of the parent's expectations.

(3) If the authority decided that the expectations were not reasonable then the parent should return to the family court so that the consent order could be reconsidered. However, a less cumbersome and better solution may lie in the power of the Secretary of State to vary the terms of s 189(1) of the Housing Act to alleviate the burden which a shared residence order could place on the housing authority.

(4) The court should not shrink from making shared residence orders on the basis of any principle that they should only be made in exceptional cases. Such orders were not necessarily exceptional and should be made if they were in the best interests of the children concerned.

(5) Scarcity of housing was not a factor to be taken into account in judging the reasonableness of an applicant's expectations under s 189(1)(b).

(6) The reviewing officer had erred in law in that he had elided the concept of shared residence with 'merely staying'. Once a residence order had been made it was not open to the authority to regard the children as staying with the father, even though the order was obtained by consent.

COUNSEL (solicitors) NICHOLAS NICOL (Scully & Co)

ANDREW ARDEN QC and MATTHEW HUTCHINGS (London Borough of Richmond-upon-Thames)

Comment This case is a significant one in acknowledging the effect of shared residence orders on local housing authorities. Whenever such an order is made, the authority faces the prospect that the parent who left the matrimonial home may claim that he or she is in priority need under s 189(1)(b): that parent may seek accommodation from the authority even though he or she formerly lived in a private house. The authority required to make the decision has no right to be heard in opposition to the making of a shared residence order (although see R (Bibi) v Camden London Borough Council [2005]1 FLR 413, where Davis J suggested that the family court may wish to invite representations from the authority in such circumstances). However, that does not deal with the difficulties of shared residence orders made by consent. The distinctions between an order made by consent and an order made after opposition are crucial with respect to the authority.

Where a shared residence order is opposed, the court is bound, by virtue of s 1(3)(f) of the 1989 Act, to have regard to the parents' capability to accommodate the child. To satisfy itself, the family court is bound, where it is relevant, to make enquiries about local authority accommodation becoming available and it is here that the authority may want to comment upon the effect of such an order on others in priority need and on its own allocation scheme. It will not be enough for a parent to merely assert that they want the child to live with them for part of the time: that parent must expect to be faced with the authority's own representations on the issue. If the family court is armed with these representations and goes ahead with the order, despite opposition, it is difficult to see any room for the authority to do anything other than follow the decision of the family court. Where the order is made by consent, and the family court is not under an obligation to consider s 1(3)(f) (apart from being satisfied that the agreed order is consistent with the children's welfare) there is every reason for the authority to consider the reasonableness of the applicant's expectations afresh.

This case also reiterates some of the important principles and considerations concerned in the decision to make a shared residence order (see held (4) above). In particular see D v D (Shared Residence Order) [2001] 1 FLR495 and Re F (Shared Residence Order) [2003] 2 FLR 397. The present case adds to the jurisprudence.