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Equal Care and Housing: Welfare v Resources?

Byron James, of Guildford Chambers, reviews the recent Lords decision in Holmes-Moorhouse v LB of Richmond which dealt with the clash between court orders on residence and the housing resources of a local authority.

image of Byron James, Barrister, Guildford Chambers

Byron James, Barrister, Guildford Chambers

This article will be of relevance to anyone involved in a shared residence case whereby one parent depends on a housing body to provide them with housing so as to give efficacy to an equal care arrangement.

Whilst shared residence orders are becoming more common, it is still a great feeling to walk away from court, following hours of argument and negotiation, having achieved such an order providing something of an equal care arrangement, for a parent, usually a father, departing a family home. For those parents who deeply care for their children, leaving the family home can be an anxious and worrying time as a consistent home life, where one can see loved ones whenever one wants, is potentially transformed into scheduled visits for a few hours each week.

Equal care arrangements are an excellent mechanism by which children are given more than just a label (by way of shared residence order) to demonstrate that both parents are equally important in their lives. Whilst this article is in no way intended to criticise the bravery of single parents who struggle against circumstances that they have unwittingly been placed into, it is something of record that children who have the support and love of both their parents in a balanced form, preferably equally, have a more rounded development throughout their childhoods.

There are many reasons one can think of where an equal care arrangement should not be put in place, it is by no means a panacea. However, what of a situation where it has been agreed by the parents and where the Court has ordered, on two occasions, that it is in the best interests of the children? Imagine the frustration for all those involved therefore when such an order is made in those circumstances but cannot be given efficacy for reason of resources.

This was the case in the recent House of Lords decision Holmes-Moorhouse v London Borough of Richmond Upon Thames [2009] UKHL 7. In this case a consent order was made giving alternate weekly residence of the children to each parent, with the holidays to be shared equally as well. The intention was for the father to leave the family home and apply to the local council’s housing services under Part VII , Housing Act 1996 as someone who was facing homelessness with a priority need.  The provision that the father sought to rely upon to assert his ‘priority need’ was section 189(b), whereby “ a person with whom dependant children reside or might reasonably be expected to reside” is considered in priority need. 

The father asked the council to interpret the shared residence order, which specifically provided for an equal care arrangement, as giving him a reasonable expectation that the children might reside with him. The council objected, ever keen to limit the distribution of their resources, on the grounds that the father could not have a reasonable expectation if that expectation was based upon the council providing the children with a second home.

It was in these two positions that two legal frameworks collided. An explanation of this collision formed part of the lead judgment by Lord Hoffmann. An order under the Children Act 1989 must be made with section 1(1) in mind, the paramountcy of children’s welfare. This is a provision which should pervade every Children Act order. It is the guiding principal that should never be contravened. However, Part VII of the Housing Act 1996 places different strictures on the council’s housing services. In the determination of reasonable expectation of residence (of children with the applicant) the relevant housing body does not make the same assumption as the family court that suitable accommodation was or would be available. In other words, their determination is wider than the confines of the children’s welfare. The reasonableness of the children’s residence must be seen within the context of the applicant’s dependence on a scheme to provide the homeless with housing. As part of this criteria, Lord Hoffmann pointed to an objective standard derived from the wording of ‘might reasonably be expected’. This objective standard, it was reasoned, must be referable to ‘a scheme for allocating scarce resources’ whereby the council must operate in the realities of the resources they have available. This should be contrasted with the applications under the Children Act, whereby resources are a secondary consideration to others such as the welfare of the child, leading to a perception of a world of ‘unlimited resources’. 

In Holmes-Moorhouse, the children already had one home with their mother, so the father’s priority need was based upon the provision of a second home. This allowed the council, and indeed the Lords, to hold that the children were in no way homeless and it was the father’s homelessness that was being addressed by his application for housing:, the children would be housed regardless of the outcome of that decision. This was held to be a distinguishing factor from other applications whereby the homelessness of the children would not be avoided if the application were refused. 

Initially, it had been held by the Court of Appeal that the fact of scarce resources was irrelevant to the question of whether the children, who already had a home with their mother, could reasonably be expected to also reside with the father in a second home, within the context of a scheme to provide homes for the homeless. The Lords however held that the Court of Appeal’s decision had no basis in ’law, logic or social policy’. It was held that there was no reason under these criteria why the priority need should be determined without regard to the purpose for which it was being asked to determine it, that is to say the allocation of a scarce resource.  Lord Hoffmann stated that to ignore that ’would not be sensible social policy’. 

The Lords were also critical of the Court of Appeal’s suggestion that the council should have become involved in the family proceedings in which shared residence was ordered as, this would provide a confusion between two systems. It was sufficient for the council to have all the information in their possession when they made their decision and it was not for the family court to intervene.

Any practitioner who has dealt with local authorities, children and the provision of scarce resources will be familiar with frustration that comes as the local authority shrug their shoulders and say ‘we are doing all we can do, but there are no resources’. As one explains to the client, missing out on contact or residence with their children because of this, it is something that they cannot adequately be held to account for. It is totally right that decisions are made in the family courts with the children’s welfare as paramount, it is also right that councils apply their resources appropriately and in accordance with the criteria of statute. As always, it is about striking the right balance between these competing interests. 

It was notable in the Lord’s decision that they were also critical of a subsequent order by the family court which recorded with concern that the shared residence order was made but not able to be complied with. The Lords stated that the family court, ’had no business trying to exert pressure upon a housing authority to provide resources for one or other of the parties’.  This is something that the writer respectfully disagrees with. The Court have a duty to uphold the welfare of the children involved in family proceedings. They should be able make the council aware of the importance that the Court places upon a particular housing arrangement. As the Lords have said, the council needs to have all the information in front of them when they make decisions and if part of the information is that the family court think it really important that such housing is provided, then so be it.

It is unlikely that the council applied the same technical analysis of the priority need legislation in their rejection of the father’s housing claim as was undertaken by the Lords in this case. More likely, they rejected it because on a simple level they did not see the need to provide a second home for the children. It is this form of qualitative reasoning that is extremely dangerous in the hands of the unchallengeable housing bodies. What do they know of the reasons why an equal care arrangement was needed, of the damage caused to the children if it was not upheld?

Furthermore, it is circular reasoning to suggest that children might only ‘reasonably be expected to reside’ with a parent if the housing association provide that person with a home. It means (forgive the tautology) that of those seeking to be housed only those who be will housed, will be housed. If the family court orders that the children should reside with the father and mother equally, for the writer, this is a reasonable expectation that they will reside with both parents, including the father without a home.  The expectation of residence and the actuality of residence are different things: the actuality is based upon the provision of housing, the expectation is based upon what the family court orders or what is agreed between the parents. The council should not be able to have had a hand in determining expectation of residence, as the Lords have decided; it is putting the miser in charge of the bank, giving the housing bodies an easy way out in such circumstances, with the end result of equal care arrangements being frustrated.

As stated, for the writer, it was clear that in this case there was a reasonable expectation of residence on the part of the father, albeit logistically impossible without the assistance of the council. If they had the resources they should have provided them; if there were not the resources, it was open to them, as admitted by the Lords in their decision, to declare that they simply do not have the resources to comply.

Unfortunately, this decision will now mean worrying times ahead for a parent leaving the family home, relying upon a housing association to provide them with a home so as to give efficacy to an equal care arrangement. Yes, such a parent will remain homeless, but it is also the children who will be missing out.

Guildford Chambers