[Edit Feb 2008 – Richmond have been given permission to appeal this judgment to the House of Lords. No date yet.]
An interesting situation, if perhaps an increasingly common one, has just been set out in the Court of Appeal case of Holmes-Moorhouse v London Borough of Richmond-Upon-Thames  EWCA Civ 970.
The situation is a family break up where, by consent or otherwise, a s.8 Children Act 1989 shared residence order has been made for the children. One parent then applies to the local authority as homeless and claims resident children as priority need.
In this case, the local authority said no priority need for the father as the mother was receiving benefits and had housing for the children. Upheld on review and on County Court Appeal.
In a Judgment that takes a survey of the current situation, the Court of Appeal held that in the case in question, the local authority was wrong in that its decision referred to the children ‘staying’ with the father and living with the mother. The Court was clear that
A child who is residing with each parent is living with each of them; he is not living with one and staying with the other.
But beyond this, the Court gave guidance on the assessment of homeless applications by those with residence orders.
Where the shared residence order is contested, the local authority has had the opportunity to make representations on housing issues. It is therefore for the local authority to follow the decision of the Family Court.
Where the shared residence order is made by consent, and the local authority has not had the opportunity to make representations, then
there is every reason that the local authority should consider afresh the reasonableness of an applicant’s expectation that a dependent child will reside with the applicant. Furthermore, in considering the reasonableness of that expectation, a local housing authority is not just entitled, but obliged to consider the extent to which the children’s needs require the child to live with, as opposed to stay with, the applicant.
The requirement is that the local housing authority be able, carefully, to enquire into and consider the children’s needs in assessing the reasonableness of the parents’ expectation.
The suggestion, via R (Bibi) v Camden London Borough Council  1 FLR, 413, seems to be that a 50/50 residence order should be sufficient to make the ‘staying with’/’living with’ difference.
Where the Local Authority, having considered afresh the reasonableness of the applicant’ expectation, refuses the housing duty, the applicant should return to the Family Court for a reconsideration of the residence order.
Should the order be confirmed by the Court, one would imagine that a fresh homeless application could be made, this time with the equivalent of a contested order, but the Court doesn’t say this.