Housing and shared residence

Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] UKHL 7 TLR 5 February

The local authority appealed against a Court of Appeal ruling that one of their housing officers had misdirected himself in not taking account of a shared residence order when refusing housing for a separated father. The House of Lords overturned the decision of the Court of Appeal and restored that of the circuit judge in the county court. Where a court in family proceedings makes a shared residence order providing for children to spend alternate weeks with each parent, and one parent is homeless, a housing authority is not obliged on account of that order to regard the homeless parent as having priority need on the ground that he was the person with whom dependent children might reasonably be expected to reside. The Court of Appeal was wrong when it held that whether as a matter of law, logic or social policy, the fact that housing was a scarce resource should be regarded as irrelevant to the question of whether it was reasonable to expect the children to live with the father. The Court of Appeal was also wrong to suggest that a housing authority should intervene in family proceedings to argue against the court making a shared residence order. It was relevant to the housing authority to know that the court considered that the children should live with both parties, but it was not concerned to argue that the court should not make an order to that effect. The order, if made, would only be part of the material, which the authority took into account in coming to its decision. The two procedures for deciding different questions must not be allowed to become entangled with each other. The Court of Appeal had made a further order recording its concern that due to no fault of either party the shared residence order had not been implemented by reason of the father’s inability to obtain suitable accommodation. The Council’s reviewing officer was quite right to take no notice of that order. It was not the business of the court exercising its jurisdiction under the Children Act 1989 to try to exert pressure upon the housing authority to provide resources for one or other of the parties. A local authority is 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 reviewing officer had ample grounds upon which he was entitled to give a negative answer to the question whether in the context of the housing authority’s duty to make provision for the homeless, the children might reasonably be expected to live with the father, as well as the mother.