The House of Lords Opinions in Holmes-Moorhouse v LB Richmond upon Thames [2009] UKHL 7 were handed down today. This concerned whether a shared residence order under s.8 Children Act 1989 meant that a child was ‘reasonably expected’ to be resident with both parents following a divorce, for the purposes of  s.189(1)(b) Housing Act 1996, so as to confer priority need in a homeless application.

The Court of Appeal said that, in certain circumstances, it might well mean just that, and that the Local Authority should intervene in the Children Act proceedings if it wished to argue the point. The House of Lords disagrees, and adds some ‘helpful’ observations…

Lord Hoffmann considers that when a residence order is made, the Court’s decision is based upon the welfare of the child in circumstances as they are or may reasonably be expected to be. However, a decision under Part VII on whether the child can reasonably be expected to reside with the parent is not made on the assumption that the parent will have accommodation available, but instead involves deciding whether such accommodation should be secured, which brings in wider considerations than the welfare of the child.

‘Reasonably expected to reside’ is an objective criteria – a social norm. Unlike 5th Century BC Sparta, a boy of 7 might now reasonably be expected to live with his mother. The HA 1996 (dating from the 1977 Housing Act) provisions are aimed to enable the nuclear family to live together. But the social norm must be applied in the context of a scheme for allocating scarce resources. Although the statute did not expressly state this:

14. 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 was wrong to suggest that considerations of resources should have no part to play in the decision on whether it was reasonable to expect the child to reside with the applicant. The Court of Appeal was also wrong to suggest that the LA should intervene in the family proceedings. The Housing Act and Children Act proceedings should not become entangled.

The Homeless Code of Guidance at 8.10 (now deleted) was muddled in its reasoning and said little about ‘reasonably expected’, hence the necessity of this judgment. But the suggestion in the code that it would be an exceptional case where both parent could be said to have the children residing with them is right [para 21]:

I think it will be only in exceptional circumstances that it would be reasonable to expect a child who has a home with one parent to be provided under Part VII with another so that he can reside with the other parent as well. It seems to me likely that the needs of the children will have to be exceptional before a housing authority will decide that it is reasonable to expect an applicant to be provided with accommodation for them which will stand empty for at least half of the time. I do not say that there may not be such a case; for example, if there is a child suffering from a disability which makes it imperative for care to be shared between separated parents. But such cases, in which that child (but not necessarily any sibling) might reasonably be expected to reside with both parents, will be unusual.

The Review Officer in this case had clearly misunderstood what was intended to be the effect of the shared residence order, referring instead to residing with one parent and staying with the other. But this was irrelevant. It didn’t matter what the current situation was or what it would be if the order was implemented, all that mattered was the decision as to whether the children might be reasonably expected to live with the father as well as the mother. The review officer had ample grounds for answering this in the negative.

Baroness Hale concurs and adds that the Family Courts are to deal with the situation as it is, not with creating options where none exist. In practice, the distinction between consent and contested orders drawn by the Court of Appeal doesn’t hold. In this case, it appears that the Family Court had not considered any evidence of the children’s wishes and had not adjudicated between competing accounts of the care of the children and breakdown of the relationship. The wishes of the children ought to have been paramount. The residence order should not have been made, particularly when it should have been clear that the father would have no accommodation available to him on leaving the home pursuant to the order. The Family Court should not use a residence order as a means of putting pressure on the LA to provide resources. A fully reasoned order may have more weight with the LA in a Part VII application than an order by consent, but it is not determinative.

Baroness Hale adds another example of what might be an exceptional case, where “a shared residence order was made some time ago and has been working extremely well, but one of the parents has unexpectedly and unintentionally become homeless (perhaps because of domestic violence from a new partner)”, but upholds the appeal.

Lord Neuberger agrees with both, then adds some views on the treatment of s.202 review decisions. In this case the review decision contained a ‘technical error of law’ which did not invalidate its conclusion. While challenges to review decisions should be carefully considered in view of their humanitarian importance:

47. However, a Judge should not adopt an unfair or unrealistic approach when considering or interpreting such review decisions. Although they may often be checked by people with legal experience or qualifications before they are sent out, 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.

Attention must be paid to the question of whether the error does or does not ‘on a fair analysis’ undermine the basis of the decision.

Lord Neuberger adds, in a passage which will doubtless be raised by virtually every s.204 appeal respondent from now on:

50. Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical 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.

So there we have it. I think the point that order in the Family Court under Children Act s.8 cannot be taken to create an option when it does not otherwise exist is a good one and that, where as in this case, the order is made prior to one parent leaving the family home, it cannot be determinative on the Part VII decision.

I’m less convinced by Lord Hoffmann’s assertion that resource considerations can play a part in a decision about ‘reasonable to expect to reside’. He says at para 16

[…]There seems to me no reason in logic why the fact that Parliament has made the question of priority need turn upon whether a dependent child might reasonably be expected to reside with the applicant should require that question to be answered without regard to the purpose for which it is being asked, namely, to determine priority in the allocation of a scarce resource. To ignore that purpose would not be a rational social policy. It does not mean that a housing authority can say that it does not have the resources to comply with its obligations under the Act. Parliament has placed upon it the duty to house the homeless and has specified the priorities it should apply. But so far as the criteria for those priorities involve questions of judgment, it must surely take into account the overall purpose of the scheme.

But resource issues clearly play no part in consideration of any of the other criteria for priority need, making this one unique in Lord Hoffmann’s view. The indicative absence of express provision for consideration of scarcity of housing in s.189, as argued in the Court of Appeal, does make sense, because consideration of scarcity in relation to pregnancy, or vulnerability would be logically ridiculous. Unless Lord Hoffmann is taken at face value, in which case it becomes alright to consider resource issues in relation to ‘reasonably expected to reside’ for the partner of a pregnant woman (189(1)(a)), or a partner or carer of a vulnerable person (189(1)(c)). Resource considerations can clearly play a part in determining if someone is homeless – overcrowding, for instance – but these are logically separate to priority need.

I also wonder whether the ‘exceptional’ cases are quite so exceptional as their Lordships seem to think. The situation is surely quite different in the example set out by Baroness Hale – where there is existing shared residence and one of the parents subsequently becomes homeless. I doubt that Holmes-Moorhouse will be the end of issues over shared residence for Part VII applications.

I’m not sure that Lord Neuberger’s additions are wholly helpful. As far as the Court of Appeal were concerned, the error over living/staying was fatal to the review decision because it held the review out to be based on a misunderstanding of the nature of residence. The Court of Appeal may have been wrong, but it was neither nit-picking nor unfair.