The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing.
Held: The authority’s appeal succeeded.
‘When any family court decides with whom the children of separated parents are to live, the welfare of those children must be its paramount consideration: the Children Act 1989, section 1(1). This means that it must choose from the available options the future which will be best for the children, not the future which will be best for the adults. It also means that the court may be creative in devising options which the parents have not put forward. It does not mean that the court can create options where none exist.’
A housing authority when making an assessment had wider responsibilities than does a court considering residence. The criteria look similar but not the same. ‘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.’ The court of appeal had been incorrect to say that resources were not an issue for the authority to consider, and nor should it intervene in children applications.
Baroness Hale said that when making the shared residence order the court should have included among its considerations the residence which either party could provide. In the circumstances where as here a party could not provide the residence facility, a shared residence order should not have been made: ‘Family court orders are meant to provide practical solutions to the practical problems faced by separating families. They are not meant to be aspirational statements of what would be for the best in some ideal world which has little prospect of realisation. Ideally there may be many cases where it would be best for the children to have a home with each of their parents. But this is not always or even usually practicable. Family courts have no power to conjure up resources where none exist. Nor can they order local authorities or other public agencies to provide particular services unless there is a specific power to do so. ‘
Lord Neuberger set out the LA’s task on reviewing its decision: ‘review decisions are prepared by housing officers, who occupy a post of considerable responsibility and who have substantial experience in the housing field, but they are not lawyers. It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court’s judgment. . . Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.’
Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Neuberger of Abbotsbury
[2009] UKHL 7, [2009] NPC 22, [2009] Fam Law 391, [2009] 1 FLR 904, [2009] 1 WLR 413, [2009] 2 FCR 277, [2009] PTSR 698, [2009] 3 All ER 277
Bailii, HL, Times
Housing Act 1996 Part VII
England and Wales
Citing:
Cited – A (A Child: Joint Residence/Parental Responsibility) CA 30-Jul-2008
The Court approved of 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. . .
Appeal from – Holmes-Moorhouse v London Borough of Richmond-Upon-Thames CA 10-Oct-2007
The court considered the duties of a local authority to provide housing where a a court made a shared residence order.
Held: The making of an order for shared residence between a mother and father living apart was not itself determinative to . .
Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
Cited – Din (Taj) v Wandsworth London Borough Council HL 26-Nov-1981
The appellants had applied for emergency housing as homeless persons, anticipating loss of their secure accomodation after falling into arrears. The Council reject their application, but a County Court quashed that decision. The Court of Appeal . .
Cited – Regina v Hillingdon London Borough Council Ex parte Puhlhofer HL 2-Jan-1986
Not Homeless Even if Accomodation Inadequate
The applicants, a married couple, lived with a young child and later also a baby in one room of a guest house. They were given breakfast but had no cooking or washing facilities. They succeeded on a judicial review of the housing authority’s . .
Cited – In re G (a Child) (Interim Care order: Residential assessment) CA 27-Jan-2004
An elder child had died, and the local authority felt unable to exculpate either the father or the mother. On the birth of this child all three had been brought in for a residential assessment. First one then another extension was sought. The court . .
Cited by:
Cited – Hotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .
Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Lists of cited by and citing cases may be incomplete.
Children, Housing
Leading Case
Updated: 01 November 2021; Ref: scu.280436