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Judgments - Holmes-Moorhouse (FC) (Original Respondent and Cross-appellant) v London Borough of Richmond upon Thames (Original Appellants and Cross-respondents)

HOUSE OF LORDS

SESSION 2008-09

[2009] UKHL 7

on appeal from:[2007]EWCA Civ 970

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Holmes-Moorhouse (FC) (Original Respondent and Cross-appellant) v London Borough of Richmond upon Thames (Original Appellants and Cross-respondents)

Appellate Committee

Lord Hoffmann

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Neuberger of Abbotsbury

Counsel

Original Appellants:

Andrew Arden QC

Matthew Hutchings

(Instructed by Legal Services, London Borough of Richmond upon Thames)

Original Respondent:

Jan Luba QC

Nicholas Nicol

(Instructed by Scully & Sowerbutts )

Hearing date :

27 NOVEMBER 2008

ON

WEDNESDAY 4 FEBRUARY 2009

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Holmes-Moorhouse (FC) (Original Respondent and Cross-appellant) v London Borough of Richmond upon Thames (Original Appellants and Cross-respondents)

[2009] UKHL 7

LORD HOFFMANN

My Lords,

1.  When parents separate, a court may make a shared residence order which stipulates that their children are to reside with both parents in their separate households. On 9 August 2005, the judge in the present case ordered the father to leave the family home in Richmond upon Thames by 20 September 2005 and provided that he and the mother were to have shared residence of three of their children. The order said that they should spend alternate weeks and half of their school holidays with each parent.

2.  The father had no other accommodation available to him and so on 18 August 2005 applied to the Housing Services of Richmond London Borough Council for assistance under Part VII of the Housing Act 1996, which imposes upon housing authorities duties in respect of accommodation for people who are homeless or threatened with homelessness. The nature of the duty varies according to whether or not the applicant has priority need. If he does, the duty is to secure that accommodation is available for his occupation: section 193(2). If not, the duty is only to provide advice and assistance in any attempts he may make to obtain accommodation. The Council accepted that he was homeless but not that he had priority need. The father requested a review of this decision under section 202 but on 3 May 2006 the Council affirmed it.

3.  Section 189(1) lists the categories of people who have priority need, of which the relevant one is in paragraph (b): “a person with whom dependent children reside or might reasonably be expected to reside.” The father said that he had dependent children living with him in the family home and that the effect of the shared residence order was that, when he left, they might reasonably be expected to reside with him. That meant that he had priority need and that it was the duty of the Council to provide him with accommodation for himself and the children: section 176. I shall in due course examine the precise way in which the Council expressed its final decision, but essentially it said that the children could not reasonably be expected to reside with the father if that required the Council to provide a second home for them. The fact that the court thought it was in the interests of the children to have two homes could not bind the Council.

4.  The father had a right of appeal to the County Court on a point of law but Judge Oppenheimer dismissed his appeal on 27 October 2006. He appealed to the Court of Appeal, where the chief question was the extent to which the Council’s determination as to whether the children could reasonably be expected to live with the father had been pre-empted by the shared residence order. The Court of Appeal, in a judgment delivered by Moses LJ, decided that once a court had decided in contested proceedings that residence should be shared, the housing authority could not deny that the children might reasonably be expected to reside with the father for the purposes of the 1996 Act: [2008] 1 WLR 1289, para 48. If the housing authority wished to dispute this, (on grounds concerning, for example, local conditions and the effect on others having priority need) it should intervene in the court proceedings and put its case. On the other hand, the housing authority would not be bound by a consent order rubber-stamped by the judge. It could decide the matter for itself, but should take into account the children’s needs in assessing the reasonableness of an expectation that they would live with the father: para 49.

5.  As the order had been made by consent, the Court of Appeal held that the Council had been entitled to make its own decision. But, on examination of the decision letter by the reviewing officer, it decided that he had misdirected himself in law as to what counted as residing with the father and that the decision should be quashed and remitted for reconsideration.

6.  I shall in due course return to the question of misdirection in the decision letter. The important question of principle concerns the relationship between the decision-making powers of the court under the Children Act 1989 and those of the Council under Part VII of the 1996 Act.

7.  Shared residence orders are not nowadays unusual. They do not necessarily provide for the children to spend equal time with each parent. In the recent case of In re A (A Child)(Joint Residence: Parental Responsibility) [2008] 3 FCR 107 the Court of Appeal approved the practice of making a shared residence order in order to confer parental responsibility upon a man who was not the natural father, even though the child actually stayed with him only on alternate week-ends. But the present order provided for residence to be shared equally. I therefore propose to decide the case on the footing that the judge had decided that the children should reside in the fullest sense with both father and mother.

8.  When a court determines any question with respect to the upbringing of a child, the child’s welfare is the paramount consideration: section 1(1) of the 1989 Act. Section 1(3) contains the welfare check list to which regard must be had when considering, among other things, whether to make a residence order. These include his physical, emotional and educational needs (paragraph (b)), and the likely effect on him of any change in his circumstances (paragraph (c)). Thus the court will take into account the emotional need for a child to be able to treat his father’s home as his own and the effect which depriving him of this security would have upon his development. But paragraph (f) also requires the court to consider “how capable each of his parents…is of meeting his needs.” A child may have needs which a parent cannot meet. It may be in the interests of a child to reside for substantial periods with his father if the father has suitable accommodation. If he has not, the court has no power under the 1989 Act, whether in exercise of its public or private jurisdiction, to conjure such accommodation into existence: compare In re G (A Minor)(Interim Care Order: Residential Assessment) [2006] 1 AC 576 and in particular Baroness Hale of Richmond at p 599, para 65. The court’s decisions as to what would be in the interests of the welfare of the children must be taken in the light of circumstances as they are or may reasonably be expected to be.

9.  The question for a housing authority under Part VII of the 1996 Act is not the same. In deciding whether children can reasonably be expected to reside with a homeless parent, it is not making the decision on the assumption that the parent has or will have suitable accommodation available. On the contrary, it is deciding whether it should secure that such accommodation is provided. And this brings in considerations wider than whether it would be in the interests of the welfare of the children to do so. The fact that both the court and the housing authority apply criteria which look superficially similar - the court deciding what would be in the best interests of the child and the housing authority deciding whether the children can reasonably be expected to reside with the father - does not mean that the questions are the same. The contexts are quite different. The housing authority is applying the provisions of a Housing Act, not a Children Act. The question of whether the children can reasonably be expected to reside with him must be answered in the context of a scheme for housing the homeless. And it must be answered by the housing authority, in which (subject to appeal) the statute vests the decision-making power.

10.  There was some dispute about whether the words “might reasonably be expected” referred to the expectations of the applicant or those of the Council. The Court of Appeal thought it meant that the applicant’s expectations had to be reasonable: paragraph 19. The Council said it referred to what it, as an independent body, would consider reasonable. I think that this is a barren argument because the phrase clearly refers to an impersonal objective standard. It is therefore unnecessary to ascribe the expectation to anyone in particular. That is the point of it being impersonal. The question is rather: what considerations does the Act require or allow to be taken into account in deciding whether one person ought reasonably to be expected to live with another?

11.  The phrase clearly appeals to an objective social norm. Might a boy of 7 reasonably be expected to reside with his mother? In 5th century BC Sparta, definitely not. In 21st century England, ordinarily yes. The social norms were different. The scheme of housing provision in Part VII, which dates back to the Housing (Homeless Persons) Act 1977, was intended to give effect to the contemporary social norm that a nuclear family should be able to live together. In Din (Taj) v Wandsworth London Borough Council [1983] 1 AC 657, 668 Lord Fraser of Tullybelton said:

“One of the main purposes of [the 1977] Act was to secure that, when accommodation is provided for homeless persons by the housing authority, it should be made available for all the members of his family together and to end the practice which had previously been common under which adult members of a homeless family were accommodated in hostels while children were taken into care, and the family thus split up. The emphasis on treating the family as a unit appears from section 1 which provides that a person is homeless for the purposes of the Act if he has no accommodation, and that he is to be treated as having no accommodation if there is no accommodation which he ‘together with any other person who normally resides with him as a member of his family ... is entitled to occupy’ (section 1 (1) (a)). The particular emphasis on families with children appears from section 2 which provides that a homeless person has ‘a priority need for accommodation’ when the housing authority is satisfied that he is within one of certain categories, the first of which is that ‘he has dependant children who are residing with him or who might reasonably be expected to reside with him': (section 2 (1) (a)).”

12.  But the social norm must be applied in the context of a scheme for allocating scarce resources. It is impossible to consider only what would be desirable in the interests of the family if resources were unlimited. Part VII provides what Mr Luba QC (who appeared for the father) described as a safety net, a last resort for people who would otherwise be homeless. As Lord Wilberforce said in Din’s case (at p. 664):

“The Act must be interpreted…with liberality having regard to its social purposes, and also with recognition of the claims of others and the nature and scale of local authorities’ responsibilities.”

13.  The scarcity of housing is expressly made a relevant consideration in relation to the question of whether someone is to be regarded as homeless. Section 175(3) says that a person is not to be treated as having accommodation unless it is accommodation “which it would be reasonable for him to continue to occupy” and section 177(2) says that in determining whether this would be reasonable,” regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied.” The Court of Appeal (at paragraph 44) said that the fact that Parliament had expressly provided that, in this context, the scarcity of housing should be taken into account lent support to the view that in relation to the different question of whether children should reasonably be expected to reside with a parent, it should not be taken into account. I respectfully disagree. Even without section 177(2), it would be absurd to decide the question of whether it was reasonable to expect someone to continue to occupy accommodation without regard to some minimum standard of what decency in 21st century Britain requires. I say a minimum because Part VII is intended, as Lord Brightman said in R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484, 517, “provide for the homeless a lifeline of last resort". But such a standard must necessarily take account of the way in which, given the scarcity of housing, many people nowadays have to live. All that 177(2) does is to enable different standards to be applied by different housing authorities, according to their local situations.

14.  The question which the housing authority therefore had to ask itself was whether it was reasonably to be expected, in the context of a scheme for housing the homeless, that children who already had a home with their mother should be able also to reside with the father. In answering this question, it would no doubt have to take into account the wishes of both parents and the children themselves. It would also have to have regard to the opinion of a court in family proceedings that shared residence would be in the interests of the children. But it would nevertheless be entitled to decide that it was not reasonable to expect children who were not in any sense homeless to be able to live with both mother and father in separate accommodation.

15.  In the Court of Appeal, Moses LJ said (at paragraph 43) that the fact that housing was a scarce resource should be regarded as irrelevant to the question of whether it was reasonable to expect the children to live with the father:

“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.”

16.  I am afraid that I cannot agree with this proposition, whether as a matter of law, logic or social policy. There seems to me no reason in logic why the fact that Parliament has made the question of priority need turn upon whether a dependent child might reasonably be expected to reside with the applicant should require that question to be answered without regard to the purpose for which it is being asked, namely, to determine priority in the allocation of a scarce resource. To ignore that purpose would not be a rational social policy. It does not mean that a housing authority can say that it does not have the resources to comply with its obligations under the Act. Parliament has placed upon it the duty to house the homeless and has specified the priorities it should apply. But so far as the criteria for those priorities involve questions of judgment, it must surely take into account the overall purpose of the scheme.

17.  In my opinion the Court of Appeal was wrong to suggest that a housing authority should intervene in family proceedings to argue against the court making a shared residence order. It will obviously be helpful to a court, in dealing with the question of where the children should reside, to know what accommodation, if any, the housing authority is likely to provide. It should not make a shared residence order unless it appears reasonably likely that both parties will have accommodation in which the children can reside. But the provision of such accommodation is outside the control of the court. It has no power to decide whether the reasons why the housing authority declines to provide such accommodation are good or bad. That is a matter for the housing authority and, if necessary, the County Court on appeal. Likewise, it is relevant for the housing authority to know that the court considers that the children should reside with both parents. But the housing authority is not concerned to argue that the court should not make an order to this effect. The order, if made, will only be part of the material which the housing authority takes into account in coming to its decision. The two procedures for deciding different questions must not be allowed to become entangled with each other.

18.  Section 182 of the 1996 Act provides that in the exercise of its functions relating to homelessness, a local housing authority shall have regard to guidance from the Secretary of State. At the time when the Council issued its decision, the relevant guidance was contained in the Homelessness Code of Guidance for Local Authorities, issued by the Office of the Deputy Prime Minister in July 2002. Paragraph 8.10 said:

“Residence does not have to be full-time and a child can be considered to reside with one parent even where he or she divides her time between both parents. However, as mentioned above, there must be some regularity to the arrangement. If the child is not currently residing with the applicant, the housing authority will need to decide whether, in the circumstances, it would be reasonable for the child to do so. An agreement between a child’s parents, or a joint residence order by a court, may not automatically lead to a conclusion that it would be reasonable for the child to reside with the parent making the homelessness application, and housing authorities will need to consider each case individually. However, housing authorities should remember that where parents separate, it will often be in the best interests of the child to maintain a relationship with both parents. It would only be in very exceptional cases though that a child might be considered to reside with both parents.”

19.  I am bound to say that this guidance, while sound in instinct, is muddled in its reasoning. It is correct, as I have said, that the housing authority has to decide whether, in the circumstances, it would be reasonable for the child to reside with the applicant and that a shared residence agreement or court order will not automatically lead to that conclusion. It is also the case that housing authorities will need to consider each case individually. Of course. But the guidance says little about what “might reasonably be expected” means or the considerations which the housing authority should take into account. It is this gap which I would invite your Lordships to fill.

20.  It is certainly desirable that housing authorities should remember that where parents separate, it will usually be in the best interests of the child to maintain a relationship with both parents. But the last sentence does not seem to follow from anything which has been said in the earlier part of the paragraph and might come as a surprise to anyone who knew nothing else about the matter. Perhaps that is why it has been deleted from the recent (2006) edition of the Guidance: see the new paragraph 10.10. If the parents are living together, then of course the children will be residing with both of them. Mr Luba in fact submitted an alternative argument that this was enough in itself to establish his priority need under section 189(1)(b) because, at the time when he made his application, he was still in the family home and the children were residing with him. In my opinion, however, when an application is made on the basis that someone is threatened with homelessness, the question is whether the children will be residing or might reasonably be expected to reside with him when he becomes homeless. In the absence of accommodation provided by the housing authority, the children would not be residing with him when he became homeless. So the only question is whether they might reasonably be expected to reside with him.

21.  Taken literally, therefore, the statement that “it would only be in very exceptional cases though that a child might be considered to reside with both parents” is unhelpful because in most cases (such as this one) the question will not be whether the child is residing with both parents but whether, after a separation, he might reasonably be expected to do so. Nevertheless, the sentiment which it expressed was based on sound instinct because I think it will be only in exceptional circumstances that it would be reasonable to expect a child who has a home with one parent to be provided under Part VII with another so that he can reside with the other parent as well. It seems to me likely that the needs of the children will have to be exceptional before a housing authority will decide that it is reasonable to expect an applicant to be provided with accommodation for them which will stand empty for at least half of the time. I do not say that there may not be such a case; for example, if there is a child suffering from a disability which makes it imperative for care to be shared between separated parents. But such cases, in which that child (but not necessarily any sibling) might reasonably be expected to reside with both parents, will be unusual.

22.  In his admirable extempore judgment in the County Court, Judge Oppenheimer put with clarity and succinctness the points which I have tried to express at what might be thought to be wearisome length. After referring to the fact that shared residence orders were now not very unusual and to the last sentence of the Guidance, he said:

“Different considerations…apply when a local authority rather than a family court is considering whether or not a child might be considered to reside or might reasonably be expected to reside with both parents; and there seems to me to be no necessary inconsistency there. This is particularly so when a local authority is taking account of the fact that if their practice did not accord with this passage in the Code, it might have to provide two houses, one to each parent, both of which houses are likely to be under occupied. In my judgment…a local authority is entitled to take account of such matters…[I]t is…not for the family court but for the local housing authority to decide whether a child might reasonably be expected to reside with an applicant for housing under Part VII. That is a question that Parliament has under the Housing Act 1996 entrusted to the local authority who will consider its housing resources and other matters. Furthermore, there is nothing in the Children Act 1989 which empowers the court hearing residence proceedings to order the provision of accommodation for anyone.”

23.  I entirely agree. Finally, I come to the point upon which the Court of Appeal quashed the Council’s decision. The father’s solicitors wrote two letters of representations to the Council, putting forward reasons why their client should be considered to have priority need. The first reason, in a letter of 20 March 2006, was that the shared residence order was made because until the break-down of the relationship the father was the primary carer (the mother worked full time) and therefore “the children should be considered to reside with both parents". In fact the father was living in accommodation provided by the Council pending resolution of the case and therefore the children were not residing with him. The father said as much when , on 4 April 2006, pending the review decision, the father and mother went back to the court to complain that the Council had been unco-operative in implementing the earlier order. The court made a further order -

“recording it’s [sic] concern that, due to no fault of either party, the shared residence order has not been implemented by reason of the inability of the respondent to obtain accommodation suitable for him to share with the said children, and thus enable him to share residence within the terms of the said order.”

24.  Presumably this order was forwarded to the reviewing officer, who seems to have taken no notice. He was quite right not to do so: it is not the business of a court exercising jurisdiction under the 1989 Act to try to exert pressure upon a housing authority to provide resources for one or other of the parties.

 
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