Comments on: We're not in Sparta any more.

By: A few titbits… « Pink Tape

A few titbits… « Pink Tape — Fri, 06 Feb 2009 16:54:51 +0000

[...] of Lords Judgment in Holmes-Moorhouse v LB Richmond. See Family Lore and Nearly Legal who have beaten me to it. This as I understand it basically says you can’t force a LA to treat [...]

By: NL

NL — Thu, 05 Feb 2009 23:48:45 +0000

Rudy, I must admit that I didn’t read the judgments in quite that way. I think the realistic distinction between a consent order and otherwise is purely that for a contested order the Court has (supposedly) conducted inquiries into the circumstances, including the children’s wishes, but also into the practical position. Both Hoffmann and Hale are clear that neither consent nor contested order would be determinative for a Part VII application, but, just on an evidential basis, a reasoned judgment (which is naturally the result of a contested case) might have more persuasive value. But, and it is a big but, the residence order cannot be prescriptive on third parties. So the disappointing answer to your concern is that it wouldn’t matter if the order was contested or not if it prescribed residence where that residence was not an option unless an LA was to provide it on the basis of the residence order. And, in Baroness Hale’s or Lord Hoffmann’s examples of a ‘maybe’ exception it also wouldn’t matter if the order was by consent or contested.

In short, I don’t think the Lords did back the distinction made by the CoA between consent and otherwise. Any difference would be purely evidential and in no way determinative on a Part VII application. This doesn’t mean that I don’t agree that there are a number of issues for housing lawyers to be concerned about in the judgment. I do agree. I’m just not sure that your concern is one of them.

By: Rudy

Rudy — Thu, 05 Feb 2009 22:45:39 +0000

There is much in these speeches to feel sad about, as a housing lawyer. I’m too disheartened to read the full speeches right now.

But as one who deals also with family cases, and almost as a footnote, I do not want practitioners to fail to be dismayed by the HL’s repetition of the CA’s distinction about the weight to be accorded to orders made in the Family Court by consent, as opposed to fully reasoned orders made after contested proceedings. This only seems to encourage wrongly disputatious litigation and discourage constructive agreement – even where a shared order of some sort is the obviously sensible outcome, and in the child’s best interest (remember them?)- in contact and residence proceedings. Then the inconsistent message is given that the family court should not use a shared residence order as a means of pressurising the LHA.
The corollary seems to be this, for many who will find their clients in this upsetting position: parents – fight your residence and contact order applications to the end, in order to gain a shared order which may amount to the sort of circumstances that might establish an exception to the post Holmes-Moorhouse rule. But then don’t expect to use this order as a device to force the LHA to re-house you and the family…

By: NL

NL — Thu, 05 Feb 2009 12:42:44 +0000

More or less, yes. But on the basis that the order will need amending anyway as the father will not be able to provide accommodation for shared residence.

By: Barrack Room Advice Services

Barrack Room Advice Services — Thu, 05 Feb 2009 12:18:09 +0000

Maybe it is just my hangover but the Lords seem to saying that it would be wrong for the local authority to intervene in the family proceedings but have then gone on, without having heard let alone tested any of the relevant evidence, to effectively quash the Family Court order.

By: Family Lore: Holmes-Moorhouse v LB Richmond upon Thames: Family Courts should deal with the situation as it is

Wed, 04 Feb 2009 19:28:52 +0000

[...] for the first time, Nearly Legal has drawn my attention to the case of Holmes-Moorhouse v LB Richmond upon Thames, this time as it reaches the House of [...]

By: chief

chief — Wed, 04 Feb 2009 16:41:08 +0000

Mr Holmes-Moorhouse’s solicitors are called Scully & Sowerbutts. That is going straight into my top 5 names for a firm of Solicitors. I freely accept that this is not the most important thing to come out of the judgment, but it tickled me, so please take a benevolent approach before judging me.