In Davies v Hertfordshire CC [2018] EWCA Civ 379, the Court of Appeal addressed the question of the relevance of s 11, Children Act 2004 on a mandatory possession claim brought by Herts against Mr Davies, a former school caretaker living in tied accommodation with his wife and four children.  Herts claimed mandatory possession on service of a notice to quit (which was not necessary in this case).

S 11 requires that local authorities in England make arrangements for ensuring that their “… functions are discharged having regard to the need to safeguard and promote the welfare of children”.  At first instance ([2017] EWHC 1488 (QB)), Laing J said, at [105]

I also accept that this was the exercise of a function to which section 149 of the 2010 Act and section 11 of the 2004 Act could apply in theory. However, neither of those duties confers a private law right on the Defendant. That means, on the authority of Mohamoud and Lambourne, that even if the Defendant could have applied for judicial review of the decision to serve the notice to quit, on the grounds that the Claimant had not complied with those public law duties, any failure to comply with them would not provide a defence to the claim for possession. Contrast the attack on the decision to increase the rent due in Winder’s case.

It was this paragraph that was in particular in issue in this appeal.  Sharp LJ in the Court of Appeal provided a relatively learned analysis of the development of the Article 8 and public law jurisprudence (no disrespect intended – it did not need to be any more than relatively learned) to demonstrate that the jurisprudence had moved on since Wandsworth LBC v Winder [1985] AC 461, such that an occupier was entitled to raise questions relating to either Article 8 or s 11 in response to a decision to serve a notice to quit and the notice itself.  As Sharp LJ said, at [28]: “… to my mind it makes perfect sense for issues about the wellbeing of children caught up in possession proceedings to be dealt with at the same time and before the same tribunal whether they are raised by reference to article 8 or section 11. In either case, the same or similar sensitive factual questions are likely to arise which the process of judicial review is not well adapted to determining, and which are better left to the County Court. Certainly, it was not suggested to us that if there were to be a real issue about the wellbeing of children who were at risk of being evicted, the appropriate venue for the determination of those issues would be the Administrative Court.”

However, that was not the end of the matter, and there is a note of caution for advisors in these cases.  Mr Davies was unsuccessful because there was no evidence about the effects on his children before the court:

It is notable for example, that no mention was made of the position of the appellant’s children in his skeleton argument, and we were referred to no material about them during the course of argument.  This lacuna in the appellant’s case was at one with the position in the pleaded defence where the appellant failed to particularise how, if at all, consideration of the children’s welfare would have made any difference to the ultimate outcome of this claim. As for the evidence before the judge, the court made no finding as to the children having any unusual or compelling circumstances beyond the normal and understandable difficulties arising from the uncertainty over the future of their home. … In the light of these matters the section 11 issue might have been disposed of on a summary basis. Further, as Mr Lane pointed out, the appellant did not seriously suggest before the judge that article 8 on its own imposed any bar to possession in this claim, and in those circumstances it could not be suggested that the corresponding defence refused by reference to section 11 of the 2004 Act had been made out. [30]).

And, as a final flourish, it was noted that Herts was not a housing authority and that the court could trust the local housing authority to consider its Parts 6 and 7 obligations: “If the respondent had considered the best interests of the children by reference to section 11 of the 2004 Act before serving the notice to quit, the outcome for the appellant would in my view, inevitably have been the same”.

There are some lessons from this appeal for occupiers seeking to plead s 11 – plead against the decision to serve any NTQ, as well as the NTQ itself; note in the pleadings the significance of the property on the children, as well as the effects on them of having to leave the property; and, in particular, note any “unusual or compelling circumstances”.  Finally, be prepared that, even if theoretically successful, it may well be that a Part 7 application will suffice.  Here, it was accepted by Mr Davies that “… the most [he] could have hoped for, even had – contrary to realities – his defence raised by reference to section 11 been successful, was a temporary reprieve”.

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