Holmes-Moorhouse v London Borough of Richmond-Upon-Thames

If a family court makes a shared residence order, settling arrangements whereby children will live with their parents in two different homes, a local housing authority may be faced with an obligation to provide two sets of accommodation for one family. The statutory obligation of a family court to consider the children’s’ welfare as paramount may conflict with a local housing authority’s duty to satisfy itself of priority need for a scarce resource.

In this appeal the conflict is stark. A family court has made a shared residence order, by consent, without any consideration of the impact on the local housing authority. The local authority protests at the father’s application to be housed in a way which will accommodate his children, who will live with him on alternate weeks, in consequence of an order, obtained by consent, without any opportunity for the authority to be heard. The judge upheld its refusal to recognise the father’s asserted priority need, under s.189(1)(b) of the Housing Act 1996. The father appeals.

Before August 2005 the appellant lived with his partner and their four children, aged between 17 and 7, in council property in Richmond. The appellant’s partner is the sole tenant. The youngest child suffers from a disability.

On 9 August 2005, H.H. Judge Knowles, at Wandsworth County Court, ordered, by consent, that the appellant leave the home by 20 September 2005 and that he and his partner should have shared residence with the three younger children. She ordered that they should spend alternate weeks with the appellant and his partner and half of each school holiday. I re-iterate that this order, as was accepted, although it does not appear to that effect on its face, was by consent. A review was ordered on a date after 20 November 2005.

On 15 August 2005 the appellant applied to the London Borough of Richmond-upon-Thames, the respondent, (Richmond) for assistance as a homeless person under Part VII of the Housing Act 1996 (The Housing Act).

By letter dated 24 February 2006 Richmond notified the appellant of its decision. It accepted that he was homeless and eligible for assistance but took the view that he was not in priority need, neither on the medical grounds he had asserted nor in respect of his children. It is necessary to record the material terms of that letter. The letter recorded the court order and added:-

It is apparent that the decision was based upon the view that, because residency and care were shared and the children’s needs could be met whilst they lived with their mother, the requirements of s.189 (1)(b) of the Housing Act were not satisfied.

The appellant sought a review pursuant to s.202 of the Housing Act. On 3 May 2006 Richmond told the appellant that they had upheld the earlier decision that he did not have priority need. The grounds on which they reached that conclusion were the subject matter of the appellant’s appeal to the county court on a point of law pursuant to s.204 of the Housing Act and are central to this appeal. The decision letter again recorded that the care provided by the appellant was no greater than that which was provided by his partner. The review letter continued:-

H.H. Judge Oppenheimer decided that the decision of the family court did not determine the issue before the local housing authority. The local housing authority was entitled to take into account that it would be required to provide two houses and that for part of the time the houses were likely to be under- occupied. He concluded that the review decision disclosed no error of law.

S.189 is in Part VII of the Housing Act concerned with homelessness and threatened homelessness. The most stringent duty is imposed upon the local housing authority where, in its judgment, the applicant is homeless, eligible for assistance, has priority need and did not become homeless intentionally. S.193, relevantly, provides:-

A less onerous duty is imposed upon the local housing authority where it is satisfied that, although an applicant has a priority need it is also satisfied that he has become homeless intentionally (s.190(1) and (2)). If the local housing authority is not satisfied that he has a priority need it is under the least onerous obligation; it must provide him with advice and assistance in attempts to secure accommodation available for his occupation (s.190(3)).

The Code of Guidance relevant to Richmond’s decision on review dated 3 May 2006 was published by the Secretary of State in July 2002. The local housing authority is required to have regard to that Code pursuant to s.182 of the Housing Act. Paragraph 8.10 provided:-

The omission of the final sentence may, in part, be due to the more prevalent use of shared residence orders. It is, therefore, appropriate to turn to the statutory scheme relating to the making of a residence order.

S.8 of the Children Act, 1989 (Residence, contact and other orders with respect to children), provides:-

S.9 contains restrictions on making s.8 orders. It is to be noted that no application may be made by a local authority for a residence or contact order (s.9(2)) and there is a restriction on making an order under s.8 in respect of a child who has reached the age of 16 unless the circumstances of the case are exceptional. S.10 confers power on the court to make s.8 orders on the application of those who include a parent and one who has obtained the leave of the court to make the application, subject to the restrictions contained in s.9. S.8 explicitly admits of the possibility of making a residence order in favour of two or more persons who do not themselves live together:-

In all the questions relating to the upbringing of a child, the child’s welfare is the paramount consideration (s.1(1) of the Children Act 1989). For the purposes of the instant appeal it is necessary to stress s.1(3) of the 1989 Act which provides:-

the court is considering whether to make, vary or discharge a s.8 order, if the making, variation or discharge of the order is opposed by any party to the proceedings…”

The appellant’s primary ground of appeal is that the order of the family court, making a shared residence order, determines whether the appellant is a person with whom dependent children might reasonably be expected to reside. This issue turns on the meaning of the words in s.189(1)(b):-

The appellant’s essential submission was that the test is purely predictive. In other words, the only question as to which the local housing authority has to be satisfied is as to the likelihood of a dependent child residing with the applicant for accommodation. The adverb merely excludes a fanciful expectation.

I do not agree. The phrase connotes something more than mere prediction. It requires an evaluative judgment to be made by the local housing authority which is required, by s.193, to be satisfied of priority need. The adverb requires a judgment as to whether the expectation of the applicant is reasonable.

Once the family court has made a Part VII Residence Order in favour of an applicant for accommodation, I accept that it is, generally, likely that the dependent children, the subject matter of the order, will reside with that applicant in accordance with the terms of the order. But that is not the statutory limit of the question posed by s.189(1)(b); the question is whether the expectation is reasonable.

The test for priority need within s.189 covers cases where no order in relation to the children has been made. Absent any order under s.8 of the Children Act, an applicant for accommodation might well assert that he is confident that his dependent children will reside with him. It would be surprising, in such a circumstance, if the local housing authority was required to act upon his assertion rather than to judge whether his expectation is reasonable in performance of their duty to exercise a judgment under s.193(1).

There is unlikely to have been a relevant court order in any of the other circumstances in which a local authority has to satisfy itself of the reasonableness of the expectation (e.g. s.189(1)(a)-(c), s.176, or s.177). It is inconsistent with the thrust of s.193(1) to suggest that the authority must act upon an applicant’s own assessment of the expectations in issue. I conclude that the order of the family court under s.8 is not dispositive of the question whether a dependent child might reasonably be expected to reside with the applicant.

My conclusion is consistent with earlier decisions as to provisions of the 1977 and 1988 Housing Acts. Simon Brown J, as he then was, in R v London Borough of Lambeth ex parte Ly [1986] 19 HLR 51 emphasised that the question of whether a person might reasonably be expected to reside with an applicant for the purposes of s.16 of the Housing Act, 1977 was a question of fact which required the local housing authority to weigh a number of different considerations including the degree of emotional and financial dependency and the practicality of providing a single unit for an entire family of eleven (see page 55). In R v London Borough of Hackney ex parte Tonnicodi [1998] 30 HLR 916, the deputy high court judge considered the phrase in the context of s.75 of the 1985 Act, the successor to s.16. He concluded that the local housing authority had applied an incorrect test when it considered whether the applicant needed a live-in carer. (See page 920). But he reached that conclusion on the basis of the Code of Guidance which referred only to persons who normally lived with the applicant. The conclusion was understandable since the applicant and his carer had been faithful companions for at least three years. In any event, the question would not now arise since s.176 now incorporates that which had previously merely been in the Code of Guidance, by referring to other persons who normally reside with the applicant. In an application for permission to appeal, this court, in R v Port Talbot Borough Council ex parte McCarthy [1990] 23 HLR 207 considered the predecessor to s.189, s.59(1)(b) of the 1985 Act. The issue in that case was whether a joint custody order with care and control to one parent but staying access to the other should have been judged by the housing authority to be the foundation for a reasonable expectation of residence. Since this was only an application I need not deal with the case more fully save to observe that the judgment of Butler Sloss LJ is consistent with the proposition that the authority must judge the reasonableness of the expectation (see page 209).

In R v Oxford City Council ex-parte Doyle [1997] 30 HLR 506, Tucker J considered s.59(1)(b) of the 1985 Act in the context of a shared residence order made by consent. He concluded that the decision of the local housing authority that the applicant was not in priority need was justified. He took the view that the order of shared residence was not determinative and that the local housing authority was entitled to take into account the short supply of three bedroom council homes. This conclusion is not entirely consistent with an earlier endorsement by the judge of counsel’s observation that the word “reasonably” qualifies the expectation rather than the residence but since I agree with the conclusion I need not consider the judge’s comments further. I shall turn later to the question of whether a shortage of housing is relevant at all to the value judgment of the reasonableness of the expectation.

I conclude that the local housing authority is required, pursuant to s.193(1), to satisfy itself of the reasonableness of an applicant’s expectation that dependent children will come to live with the applicant.

Now that I have concluded that the order of shared residence is not dispositive, the next question relates to the weight to be attached to such an order by the local housing authority. This requires some consideration as to the circumstances in which a shared residence order may be made. A number of principles emerge from the authorities.

A residence order, as s.8(1) of the Children Act makes clear, settles arrangements about where a child is to live. (See re A [2002] 1 FCR 177, paragraph 17 page 181). It is to be distinguished from a contact order which makes directions permitting a child to visit or stay with a person other than the person with whom the child lives. Residence orders were proposed in the Law Commission’s Report (Law Com No. 172, 1988, on Guardianship and Custody). The Law Commission reported that it had not been their intention , when considering such orders, (in their Working Paper no.96, published in 1986), to suggest that children should share their time more or less equally between their parents. The Commission recognised that a child might well live with both parents but spend more time with one than the other and they took the view that it was more realistic to reflect the responsibilities of both by making a residence order (see paragraph 4.12). It was this report which founded Hale LJ’s judgment in the leading authority D v D (Shared Residence Order) [2001] 1 FLR 495. She said, in that case, that a residence order was “entirely appropriate” where children are spending substantial amounts of time with each parent. Wilson J observed that in that case a shared residence order was approved although the children only spent 38% of each year with the father. (See Re F (Shared Residence Order) [2003] 2 FLR 397.)

It is clear, therefore, that a court should not shrink from making a shared residence order on the basis of any supposed principle that they should only be made in exceptional cases. As Hale LJ has repeated, such orders are not necessarily exceptional; they should be made if they are in the best interests of the children (see D vD (qv.supra) and Re A [2001] FCR 177 at para 15). It was, no doubt, the recognition that it was not necessary to show exceptional circumstances before making a Shared Residence Order, which led to the change in the Code of Guidance.

But none of these cases acknowledge the effect upon local housing authorities. The impact on such authorities requires no hyperbole. Each time a shared residence order is made, they may be faced with the prospect that the parent leaving the former matrimonial home will claim that he or she is in priority need by virtue of s.189(1)(b). It is important to note that that will not always be in cases where the parents have previously lived in social housing. The parent, who has left, may seek accommodation from the local authority even though he or she has previously lived in a private house.

Yet the local housing authority, required to make these decisions by the statutory imperative contained in s.193(1), has no right to be heard in opposition to the making of a shared residence order. Prompted by that concern, Davis J, in R (Bibi) v Camden London Borough Council [2005] 1 FLR 413 made a number of general observations which are of assistance in the instant appeal.

Bibi was a case concerning Part VI of the Housing Act 1996 and Camden’s allocation scheme. Camden had allocated 3-bedroom accommodation to the father. Subsequently a shared residence order was made, by consent, pursuant to which the children were to share their time equally between the parents. The mother applied for re-housing and the Exceptions Panel accepted her application but was prepared to offer only one-bedroom accommodation. Davis J quashed Camden’s decision on the grounds that it had failed properly to apply its own allocation scheme in relation to those within the mother’s family and what each of the parents’ household required (see para 37). But the importance of the decision, for the instant appeal, is that for the purposes of Part VI of the Housing Act 1996 the judge faced the difficulties caused to the local housing authority by shared residence orders. For the purposes of the allocation scheme he distinguished between a shared residence order where the children spend an equal amount of time with both parents and an order where a greater part of the week was spent with one rather than the other (see para 42(2)). He noted that although shared residence orders were becoming more frequent, those of what he described as a “50/50 type” would be rare (42(3)). He speculated as to whether such orders were of sufficient frequency to require them to be addressed in published allocation schemes but noted:-

It is important to re-emphasise that this was a case concerned not with Part VII but with Part VI. As the judge remarked, the allocation scheme made pursuant to s.167 of the 1996 Act must have regard not only to those who have priority under Part VII (see s.167(2)) but, inevitably, shortage of housing stock (see para 35). I shall turn later to the question as to whether shortage of housing stock should play any part in consideration of reasonable expectations under s.189(1)(b) of Part VII. But the sensible suggestions of the judge as to the approach of the family court which “may wish to consider inviting representations from the housing authority” do not grapple with the difficulties of shared residence orders obtained by consent without any opportunity for the local housing authority to intervene in cases which are, after all, concerned with what is in the best interests of the children.

The different and opposing considerations which the family court and the local housing authority have to bear in mind are a reflection of the different statutory obligations imposed on them. S.1 of the Children Act 1989 requires the family court to make a child’s welfare its paramount consideration. The statutory obligation of the local housing authority under s.193(1) of the Housing Act 1996 is, for the purposes of recognising a priority need for accommodation, to judge whether a dependent child might reasonably be expected to reside with a person other than one with whom that child is already residing. The local housing authority is, as I have said, not entitled to be represented before the family court and will be, as I have pointed out, often faced with an order obtained by consent. There is ample authority for the proposition that agreed arrangements are usually preferable to those imposed by a court (see, e.g, Baroness Hale in re G (Children) (Residence: Same Sex Partners) [2006] 1 WLR 2305 at 2319 D-E). A housing authority has no power to apply to set aside or vary a residence order.

The Children Act is not concerned with the identification of a priority need for accommodation. But there is one important provision which casts some light on the proper approach which the family court should adopt. I have already referred to it. In circumstances where the making, variation or discharge of a s.8 Order is opposed, the court is required to have regard to:-

In order to comply with its statutory obligation, the family court is obliged, where an order is opposed, to have regard to the accommodation available to both parents at the time the s.8 order is under consideration. Accordingly, in order to have regard to the capability of a parent to meet the needs of a child in circumstances where that parent has no available accommodation in which the child could reside, in the statutory sense of “living” with that parent, the court is obliged to consider the likelihood of such accommodation becoming available. To satisfy that enquiry it seems to me that a family court is bound to enquire of the relevant local housing authority as to what accommodation is currently available and what is likely to become available in the future. In answering such a necessary enquiry, a local housing authority may take the opportunity to place before the family court those matters relevant to the local housing authority’s own consideration in pursuance of its statutory obligation under s.193.

Thus, where a s.8 order is opposed, it will not be sufficient for a parent merely to assert that he or she wants a child to come, for at least part of the time, to live with him, that parent must expect to be faced with the local housing authority’s own representations on the issue.

If, armed with those representations and despite opposition, the family court makes a shared residence order, then the question arises as to the weight which a local housing authority must attach to an order in considering whether it is satisfied that the children, might reasonably be expected to reside with the parent who has claimed a priority need for accommodation.

Before answering that question it is necessary to consider whether there are other considerations which the local housing authority should bear in mind. This raises the question as to the extent to which the scarcity of public housing is a relevant consideration. Pressing on the local housing authority’s mind will, after all, be the realisation that an acceptance that children might reasonably be expected to live with both parents may trigger an obligation to provide two family-sized units for the same set of children.

It is important to appreciate the limits of that which is contended by Mr Arden QC on behalf of Richmond. Richmond did not rely upon its own lack of resources as a ground for refusing to accept that the applicant was in priority need of accommodation. No reference to lack of resources finds its way into either the original refusal letter or the decision on review. But Richmond does contend that the context in which reasonableness is to be judged is that of public housing, which is a scarce resource. That, so it is contended, lends force to the submission that the shared residence order made by the family court is merely a relevant factor which the local housing authority should take into account in approaching its own distinct duty to exercise judgment under s.193(1).

In support of that submission Richmond relies upon ample authority for the relevance of resources in considering a need for services to be provided by a public authority. In considering the Housing (Homeless Persons) Act 1977 in Din (Taj) v Wandsworth LBC [1983] AC 657 Lord Wilberforce said:-

In R v Gloucestershire County Council ex-parte Barry [1997] AC 584, a majority of the House of Lords accepted a local authority had to balance the severity of the applicant’s infirmity against the cost of arrangements he needed and thus, in the assessment of his needs for the purposes of the Chronically Sick and Disabled Persons Act 1970, the availability of resources was a proper consideration, (see too R v Sefton Metropolitan Borough Council ex-parte Help the Aged [1997] 4 All ER 532 (in relation to an assessment of whether an applicant needed care and attention)).

First instance judges seem to have had no difficulty in regarding limited resources as a relevant consideration. In R v Oxford City Council ex-parte Doyle ( q.v. supra) Tucker J took the view that the short supply of 3-bedroom council homes was relevant to consideration of a priority need provided it was not what he described as “unduly influential” (see page 512). Simon Browne J in ex-parte Ly (q.v. supra) took the view that the impracticability of finding a single unit for an 11-child family was relevant (see page 55). In the context of Part VI and Camden’s allocation scheme shortage of housing stock was accepted by Davis J to be relevant in R (Bibi) (qv supra).

The difficulty in accepting the proposition that shortage of public housing is a relevant consideration lies in the statutory context in which that decision falls to be made. Parliament has enacted housing legislation which distinguishes between provisions which allocate housing accommodation, within Part VI, and those provisions which recognise a priority need for accommodation, contained within Part VII. Under that Part, s.193(2) imposes a duty to secure that accommodation is available until it ceases to be subject to the duty in the circumstances set out in the following provisions of s.193; these include the acceptance of an offer of accommodation under Part VI (see s.193(6)(c)). Under Part VI, s.167(2) requires an allocation scheme to be framed so as to secure that reasonable preference is given to, amongst others, those who are homeless within the meaning of Part VII. I derive from the distinction between the provisions contained in Part VI and Part VII the proposition that Parliament has already decided how the scarce resource of public housing should be deployed. It has, in the context of the scarcity of such accommodation, decided that priority shall be afforded to those with whom dependent children might reasonably be expected to reside. It seems to me therefore that there is no room for permitting the scarcity of resources to play a part in considering the reasonableness of the expectation.

This conclusion finds some support within Part VII since, in relation to the issue whether it is reasonable for a person to continue to occupy accommodation (unless it is probable that this will lead to domestic violence or other violence), the local housing authority is permitted to have regard to what the statute describes as:-

In the supplementary provisions to Part VII the local housing authority is required to discharge its functions to secure the availability of accommodation in its own district but only so far as reasonably practicable (see s.208(1)). Those provisions suggest to me that scarcity of housing is not a factor to be taken into account in judging the reasonableness of an applicant’s expectation under s.189(1)(b).

The enactment of a series of provisions according to which priority need may be recognised and an absolute duty to provide accommodation may be imposed, shows that Parliament has itself decided how scarce resources should be deployed.

It is now necessary to apply that principle to cases where the making of a shared residence order is contested.

As I have said, where a shared residence order is opposed, the Court is bound, by virtue of s.1(3)(f) to have regard to the capability of the parents to accommodate the child. The local housing authority ought, therefore, in that circumstance, be given the opportunity to comment upon local conditions and the effect of a shared residence order on others in priority need and on its own allocation scheme. Accordingly, where those matters have been taken into account, as they ought to have been, it is difficult to see that there is any room for a local housing authority to do other than follow the decision of the family court on a contested hearing. After all, in that contested hearing, the court will have been bound to consider not only the capability of the parents to accommodate the children but also the needs of the children. The family court will have been in a far better position to assess such needs. I conclude, therefore, that in contested hearings there will be no room for a fresh assessment by the local housing authority of the reasonableness of the expectation, unless, by the time of its consideration, circumstances have changed.

The real problem, however, arises where an order for shared residence is made by consent. In such circumstances, as I have already noted, the family court is under no obligation to consider those matters identified in s.1(3). Provided that it is satisfied that the agreed order is consistent with the children’s welfare, it is unlikely that it will have exercised any independent judgment, still less to have had regard to the impact on a local housing authority. In such circumstances, I see every reason why a local housing authority, in performance of its obligation under s.193(1), should consider afresh the reasonableness of an applicant’s expectation that a dependent child will reside with the applicant. Furthermore, in considering the reasonableness of that expectation, a local housing authority is not just entitled, but obliged to consider the extent to which the children’s needs require the child to live with, as opposed to stay with, the applicant. Exercising that judgment is not a substitution for the judgment of the family court which may never have been fully exercised. I accept that a local housing authority will lack the expertise of the family court but the local housing authority, before reaching any decision, will be able to tap different sources of information before reaching a conclusion. After all, the instant case shows the local housing authority was aware of the background of the children and the views of those who had come into contact with them. The authority will have experience in considering the reasonableness of expectations in the different contexts of a person who might reasonably be expected to reside with an applicant as a member of his family (s.176(b)) or , under s.189(1)(a) or (c), as a pregnant women, or as one who is vulnerable. In none of those cases will the local housing authority have the benefit or disadvantage of a court order. I would, accordingly, expect a local housing authority to be able, carefully, to enquire into and consider the children’s needs in assessing the reasonableness of the parents’ expectation.

I conclude that a distinction must be drawn between those cases where the residence order is made despite opposition and those where it is made by consent. Where it is made despite opposition and the family court has complied with its statutory obligation then I cannot foresee any room for other considerations to displace a conclusion that the expectation of the parent who benefits from a shared order will be reasonable.

There is one further consideration of importance. There will be room for the local housing authority to provide accommodation of a size which reflects the length of the expected residence of the child pursuant to the shared order. Cramped quarters may be suitable where residence is limited.

On the other hand, where an order is made by consent and it is apparent that the court has not considered the capability of a parent to meet the accommodation needs of the child, a local housing authority is obliged, in pursuance of its statutory duty, to consider afresh the reasonableness of the parents’ expectation. If it decides that it is not reasonable then the parent should return to the family court so that that court can reconsider the order previously made by consent.

I acknowledge that this conclusion is a cumbersome solution which fails adequately to recognise the pressures on family courts and local housing authorities. I suggest that a better solution may lie in the power of the Secretary of State, under s.189(2) to vary the terms of s. 189(1) and by that means alleviate the burden on a local housing authority which a shared order may cause.

There remains the question as to how Richmond’s decisions sit with the principles I have attempted to identify. It is important to note that, as agreed between the parties and recorded by the judge, the issue of dependency has not yet been decided by Richmond. This seems somewhat curious in the light of the terms of the review decision which specifically refers to the fact that the appellant does not contribute financially towards the support of the children. But we are bound by that agreement since no argument was advanced before us as to dependency. Nor have we heard argument as to the meaning to be attached to the reference to “dependent children” in s.189(1)(b).

The review letter indicates that the reviewing official bore in mind the shared residence order and the Code of Guidance relating to such orders. But the crucial factor, in the mind of the reviewing official, seems to have been that because residence was shared, the children were not expected to live with the father but merely to stay with him :-

That is not to resile from the principles I have set out in relation to cases where a family court makes an order by consent. As I have said, where an order is made by consent a local housing authority must consider the reasonableness of the expectation that the child will live with the applicant. But it is not a ground for rejecting the application that something less than living with a parent on a permanent basis should be regarded as merely “staying”. If that was a correct approach then a local housing authority could always say that in the case of a shared residence order where one parent was already adequately housed, the expectation of the other was not reasonable. This seems to be the basis upon which the reviewing officer reached his decision in the instant appeal.

For that reason I conclude that the reviewing decision does disclose an error of law. I would quash that decision and order the local housing authority to reconsider the application in the light of the principles I have identified. For the future, unless the Secretary of State exercises his power under s.189(2), it seems to me that the interests of the local housing authority will be protected in cases where a shared residence order is opposed. Where it is not, the local housing authority ought to consider afresh the needs of a child to live with the applicant, always bearing in mind that those concerned have already agreed that the children should live with more than one parent. In short, the current Code of Conduct at 10.10 accurately states the law in relation to cases where a shared residence order has been made by consent. In cases where it has not, the family court, in the exercise of its duty under s.8 (3) and (4) of the Children Act should afford the housing authority an opportunity to make its views known to the family court and there will be no room thereafter for any fresh consideration, save into any changed circumstance. I would allow the appeal.

I agree.

I also agree.