Sarah Hughes, Solicitor
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Introduction
On 4 February 2009, the House of Lords delivered their Judgement in Holmes-Moorhouse (FC) v London Borough of Richmond upon Thames (2009) and held that a father with a Shared Residence Order was not entitled to Local Authority housing because his children ‘could not reasonably be expected to reside with him’.
This case clearly illustrates the overlap and conflict between the jurisdiction of the Family Courts under the Children Act 1989, and that of the Local Authority under Part VII of the Housing Act 1996. It highlights the severe limitations on Local Authority resources and illustrates that winning the battle in the Family Courts does not necessarily mean that you have won the war......
Holmes-Moorhouse: The Facts
This case concerned four children (at the time aged 6, 9, 14, and 16) who lived with their mother and father in a property rented from a registered social landlord. The property was rented in the mother’s sole name and the parties were unmarried.
The initial proceedings were brought under Part IV of the Family Law Act 1996 by the mother who sought non-molestation and non occupation orders against the father. The father gave undertakings and the matter was adjourned until 9 August 2005 to enable a social worker to attend. There was no involvement from CAFCASS and no evidence was filed regarding the children. However, the family had been known to the local children's services since 2003. The social worker concluded that the mother was the primary carer, even though she worked full time. The father argued that he was the primary carer and strongly denied the allegations of domestic violence.
On 9 August 2005, Her Honour Judge Knowles made an Occupation Order requiring the father to leave the family home. At the same time, a Shared Residence Order was made by agreement which provided for the three youngest children to spend alternate weeks and half the school holidays with each parent. This meant the children would spend approximately 50% of their time with each parent. However, when the father left the family home he had no accommodation available and had to apply to the Local Authority for assistance. He applied for permanent housing but his application was refused as he was not 'a person with whom dependent children reside or might reasonably be expected to reside' and therefore he was not in priority need for the purposes of the Housing Act 1996. This meant that the Shared Residence Order could not be complied with and the children remained living with the mother. The father appealed to the House of Lords.
Holmes- Moorhouse: The House of Lords Judgement
On appeal the Court reinstated the original decision of the Local Authority and held that there was not a duty to house the father because he was not in priority need. The Court held that a shared residence order is something which the Local Authority must consider, but that such orders would not be binding on the Local Authority whose decisions must be made against a background of wider social policy considerations.
In his leading Judgement, Lord Hoffman stated that the words 'might reasonably be expected' referred to an objective social norm which must be applied ‘in the context of a scheme for allocating scarce resources'. A key fact in this case was that the mother was already living in social housing and if the local authority were also required to provide the father with housing, they would be providing the family with two properties, both of which would be under occupied for half the time. Lord Hoffman did not agree with this and instead said that ‘…..it is 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’. This appears to have been a distinguishing factor in the case.
At paragraph 24, Lord Hoffman then goes on to state that ‘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’. This clearly divides the powers of the family courts and the local authority and sets the stage for housing authorities to reject applications made by parents with shared residence orders, without recourse to the family courts, despite the fact that it has already been decided that it is in the best interests of the children that this Order be in place.
In her supporting Judgement, Baroness Hale sympathises with the decision of HHJ Knowles but states that, whilst she appreciates that it represents a compromise by removing the conflict in the family home and reaching an agreement in relation to the children, such an Order should never have been made. Baroness Hale points to the lack of evidence available to the Court at the time and concludes that it was impossible to know whether such an Order would be in the best interests of the children.
At paragraph 38 Baroness Hale then goes on to state that ‘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 the some ideal world which has little prospect of realisation.’ This is something which all family practitioners should bear in mind.
Baroness Hale then helpfully makes the practical suggestion that, in cases where there are limited resources, the Court should require a report from the local children’s services under Section 7 of the 1989 Act to ascertain whether housing would be available. Similarly, Baroness Hale suggests that it would be useful to the Housing Authority to have the fully reasoned judgement of a family Court detailing why the children should have a home with both parents as this would assist the Housing Authority in deciding whether the children ‘might reasonably be expected to reside’ with the parent applying for assistance.
The other Judges (Lord Scott, Lord Walker and Lord Neuberger,) concurred with the judgements of Lord Hoffman and Baroness Hale.
Comment
The result of this case is that fathers (and children) will now often find themselves in the unsatisfactory position of having obtained a Shared Residence Order in the family court, often at great emotional and financial expense, only to find that they are unable to benefit from that Order because the Local Authority does not think it reasonable to expect those children to reside with that parent.
Under the Children Act 1989 s1 (1) the child’s welfare is the paramount consideration. This is the guiding principle that runs throughout the Children Act and should be applied to every Order made. In this case it was decided, albeit on limited evidence, that it would be in the best interests of the children’s welfare to reside with both parents for an equal amount of time. Yet, the children were prevented from residing with both parents due to a decision made by the local authority.
Shared Residence Orders have become increasingly popular in the family courts in recent years and are used to reflect the fact that both parents play an equal role in the child’s lives. The Orders specify the amount of time that the child spends with each parent. Whilst it can mean that the child spends half their time with each parent, this is not necessarily so. Shared Residence Orders are even made where the child spends considerably less time with one parent or the parents live in different countries, provided that it is in the best interests of the children to have such an Order in place.
Under Part VII of the Housing Act 1996 the Local Authority does not consider the interests of the child paramount. This is one deciding factor which is weighed up alongside other factors. The determining issue for the local authority in cases involving shared residence is whether it is reasonable for the child to be expected to reside with a parent in the context of limited housing resources.
To succeed in an application for permanent local authority housing under Part VII of the Housing Act 1996 an applicant must satisfy all of the following criteria:
- Eligibility – the applicant must be eligible for housing assistance.
- Homelessness. The applicant must be homeless within 28 days/threatened with homelessness ie. not have any available accommodation which they are entitled to occupy. If they do have accommodation, they can still be treated as homeless if it would not be reasonable for them to continue to reside there.
- Priority Need. The applicant must be in priority need. This can be satisfied in a variety of ways ie. if you are pregnant or it is reasonable to expect you to reside with someone who is pregnant, have dependant children or it is reasonable to expect you to reside with dependant children, are vulnerable due to age, illness, disability, or domestic violence etc, or have been forced out of your home due to flood/fire etc.
- Intentionality. The applicant must not be found to be intentionally homeless ie. not homeless as a result of anything they have deliberately done or failed to do.
- Local connection. The applicant must have a local connection with the local authority to which they are applying for assistance ie. lived there for a minimum period, or have family/work ties there.
In Holmes v Moorhouse the father did not meet the criteria for priority need as he was not 'a person with whom dependent children reside or might reasonably be expected to reside'. When an applicant does not meet all of the criteria then the local authority only owes a limited duty. In this case, because the local authority were considered not to have any duties towards Mr Holmes by virtue of the Housing Act 1996 (Part VII (and the fact that he did not have a priority need for housing), their duties were limited to the provision of advice and assistance to enable Mr Holmes to secure other accommodation. The local authority also had a power to provide Mr Holmes with accommodation from their own housing stock but if they refused to do so, Mr Holmes could not assert any legal rights to be provided with such accommodation. Mr Holmes therefore could only pursue his housing needs via the housing register.
In Holmes – Moorhouse, the father was providing a ‘second home’ for the children and the refusal of his application for housing assistance did not make the children homeless. This was a key factor in the case. In her Judgement Baroness Hale made the comparison to a married couple where the family Courts will use the provisions of the Matrimonial Causes Act 1973 to try and preserve a home for the children with both parents if the resources are available (emphasis added). In this case, the resources were not available. It is also arguable whether such an Order was in the best interests of the children.
However, the decision does leaves open the limited possibility of succeeding in such an application in the circumstances mentioned by Baroness Hale at paragraph 41, where a child is disabled and the care needs to be shared or where a shared residence order has been in place successfully for some time but one parent becomes homeless and Local Authority accommodation should be provided to ensure this continues. Practitioners should therefore give careful consideration as to whether any such circumstances exist before ruling out the possibility of the parent securing accommodation through the local authority.
Sarah Hughes is a solicitor in Anthony Gold's Family & Divorce Law department. For further information email Sarah or call 020 7940 4000.
