Holmes-Moorhouse v Richmond upon Thames London Borough Council

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date04 Feb 2009
Neutral Citation[2009] UKHL 7

[2009] UKHL 7


Appellate Committee

Lord Hoffmann

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Neuberger of Abbotsbury

Holmes-Moorhouse (FC)
(Original Respondent and Cross-appellant)
London Borough of Richmond upon Thames
(Original Appellants and Cross-respondents)

Original Appellants:

Andrew Arden QC

Matthew Hutchings

(Instructed by Legal Services, London Borough of Richmond upon Thames)

Original Respondent:

Jan Luba QC

Nicholas Nicol

(Instructed by Scully & Sowerbutts)


My Lords,


When parents separate, a court may make a shared residence order which stipulates that their children are to reside with both parents in their separate households. On 9 August 2005, the judge in the present case ordered the father to leave the family home in Richmond upon Thames by 20 September 2005 and provided that he and the mother were to have shared residence of three of their children. The order said that they should spend alternate weeks and half of their school holidays with each parent.


The father had no other accommodation available to him and so on 18 August 2005 applied to the Housing Services of Richmond London Borough Council for assistance under Part VII of the Housing Act 1996, which imposes upon housing authorities duties in respect of accommodation for people who are homeless or threatened with homelessness. The nature of the duty varies according to whether or not the applicant has priority need. If he does, the duty is to secure that accommodation is available for his occupation: section 193(2). If not, the duty is only to provide advice and assistance in any attempts he may make to obtain accommodation. The Council accepted that he was homeless but not that he had priority need. The father requested a review of this decision under section 202 but on 3 May 2006 the Council affirmed it.


Section 189(1) lists the categories of people who have priority need, of which the relevant one is in paragraph (b): "a person with whom dependent children reside or might reasonably be expected to reside." The father said that he had dependent children living with him in the family home and that the effect of the shared residence order was that, when he left, they might reasonably be expected to reside with him. That meant that he had priority need and that it was the duty of the Council to provide him with accommodation for himself and the children: section 176. I shall in due course examine the precise way in which the Council expressed its final decision, but essentially it said that the children could not reasonably be expected to reside with the father if that required the Council to provide a second home for them. The fact that the court thought it was in the interests of the children to have two homes could not bind the Council.


The father had a right of appeal to the County Court on a point of law but Judge Oppenheimer dismissed his appeal on 27 October 2006. He appealed to the Court of Appeal, where the chief question was the extent to which the Council's determination as to whether the children could reasonably be expected to live with the father had been pre-empted by the shared residence order. The Court of Appeal, in a judgment delivered by Moses LJ, decided that once a court had decided in contested proceedings that residence should be shared, the housing authority could not deny that the children might reasonably be expected to reside with the father for the purposes of the 1996 Act: [2008] 1 WLR 1289, para 48. If the housing authority wished to dispute this, (on grounds concerning, for example, local conditions and the effect on others having priority need) it should intervene in the court proceedings and put its case. On the other hand, the housing authority would not be bound by a consent order rubber-stamped by the judge. It could decide the matter for itself, but should take into account the children's needs in assessing the reasonableness of an expectation that they would live with the father: para 49.


As the order had been made by consent, the Court of Appeal held that the Council had been entitled to make its own decision. But, on examination of the decision letter by the reviewing officer, it decided that he had misdirected himself in law as to what counted as residing with the father and that the decision should be quashed and remitted for reconsideration.


I shall in due course return to the question of misdirection in the decision letter. The important question of principle concerns the relationship between the decision-making powers of the court under the Children Act 1989 and those of the Council under Part VII of the 1996 Act.


Shared residence orders are not nowadays unusual. They do not necessarily provide for the children to spend equal time with each parent. In the recent case of In re A (A Child)(Joint Residence: Parental Responsibility) [2008] 3 FCR 107 the Court of Appeal approved the practice of making a shared residence order in order to confer parental responsibility upon a man who was not the natural father, even though the child actually stayed with him only on alternate week-ends. But the present order provided for residence to be shared equally. I therefore propose to decide the case on the footing that the judge had decided that the children should reside in the fullest sense with both father and mother.


When a court determines any question with respect to the upbringing of a child, the child's welfare is the paramount consideration: section 1(1) of the 1989 Act. Section 1(3) contains the welfare check list to which regard must be had when considering, among other things, whether to make a residence order. These include his physical, emotional and educational needs (paragraph (b)), and the likely effect on him of any change in his circumstances (paragraph (c)). Thus the court will take into account the emotional need for a child to be able to treat his father's home as his own and the effect which depriving him of this security would have upon his development. But paragraph (f) also requires the court to consider "how capable each of his parents…is of meeting his needs." A child may have needs which a parent cannot meet. It may be in the interests of a child to reside for substantial periods with his father if the father has suitable accommodation. If he has not, the court has no power under the 1989 Act, whether in exercise of its public or private jurisdiction, to conjure such accommodation into existence: compare In re G (A Minor)(Interim Care Order: Residential Assessment) [2006] 1 AC 576 and in particular Baroness Hale of Richmond at p 599, para 65. The court's decisions as to what would be in the interests of the welfare of the children must be taken in the light of circumstances as they are or may reasonably be expected to be.


The question for a housing authority under Part VII of the 1996 Act is not the same. In deciding whether children can reasonably be expected to reside with a homeless parent, it is not making the decision on the assumption that the parent has or will have suitable accommodation available. On the contrary, it is deciding whether it should secure that such accommodation is provided. And this brings in considerations wider than whether it would be in the interests of the welfare of the children to do so. The fact that both the court and the housing authority apply criteria which look superficially similar - the court deciding what would be in the best interests of the child and the housing authority deciding whether the children can reasonably be expected to reside with the father - does not mean that the questions are the same. The contexts are quite different. The housing authority is applying the provisions of a Housing Act, not a Children Act. The question of whether the children can reasonably be expected to reside with him must be answered in the context of a scheme for housing the homeless. And it must be answered by the housing authority, in which (subject to appeal) the statute vests the decision-making power.


There was some dispute about whether the words "might reasonably be expected" referred to the expectations of the applicant or those of the Council. The Court of Appeal thought it meant that the applicant's expectations had to be reasonable: paragraph 19. The Council said it referred to what it, as an independent body, would consider reasonable. I think that this is a barren argument because the phrase clearly refers to an impersonal objective standard. It is therefore unnecessary to ascribe the expectation to anyone in particular. That is the point of it being impersonal. The question is rather: what considerations does the Act require or allow to be taken into account in deciding whether one person ought reasonably to be expected to live with another?


The phrase clearly appeals to an objective social norm. Might a boy of 7 reasonably be expected to reside with his mother? In 5th century BC Sparta, definitely not. In 21st century England, ordinarily yes. The social norms were different. The scheme of housing provision in Part VII, which dates back to the Housing (Homeless Persons) Act 1977, was intended to give effect to the contemporary social norm that a nuclear family should be able to live together. In Din (Taj) v Wandsworth London Borough Council [1983] 1 AC 657, 668 Lord Fraser of Tullybelton said:

"One of the main purposes of [the 1977] Act was to secure that, when accommodation is provided for homeless persons by the housing authority, it should be made available for all the members of his family together and to end the practice which had previously been common under which adult members of a homeless family were accommodated in hostels while children were taken...

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