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

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25.  Clearly what the solicitors meant was that, having regard to the shared residence order, it might reasonably be expected that the children would reside with the father. But the way in which he put his case, namely that “the children should be considered to reside with both parents” seems to have influenced the way the reviewing officer dealt with the point in his decision letter. He said:

“You have submitted that the children should be considered to reside with both parents, and as such your client should be in priority need for accommodation. You argue that the order is intended to be permanent, but this does not seem to me to decide the question of whether in fact the children are staying with Mr Holmes-Moorhouse on a permanent basis. …..When children are staying alternative weeks with each parent, and the other parent is adequately housed, and the main carer, it seems to me that something more than the bare fact of staying is required before one would ordinarily describe the children as ‘residing’ with the homeless parent. I am satisfied that the children do not reside with Mr Holmes-Moorhouse and neither are they expected to reside with him.”

26.  The Court of Appeal said that this was a mis-direction because the effect of the court order, if implemented, would be that the children resided with both parents and not merely reside with one and stay with the other. My Lords, I would accept that the reviewing officer wrongly construed what was intended to be the effect of the court order. But that was irrelevant. It did not matter what the current situation was or what it would be if the order was implemented. The question was whether, in the context of the duty of the housing authority to make provision for the homeless, the children might reasonably be expected to live with the father as well as the mother. To that question the reviewing officer gave a negative answer and in my opinion there were ample grounds upon which he was entitled to do so. I would therefore allow the Council’s appeal. Since drafting this opinion, I have had the privilege of reading in draft the speeches to be delivered by my noble and learned friends Baroness Hale of Richmond and Lord Neuberger of Abbotsbury. They should be required reading by family court judges dealing with residence orders and County Court judges hearing appeals under section 204 of the Housing Act 1996 respectively.

LORD SCOTT OF FOSCOTE

My Lords,

27.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann and am in full and respectful agreement with the explanation he has given of the reasons why this appeal should be allowed. There is nothing I can usefully add and for those reasons I too would allow Richmond’s appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

28.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann. I am in full agreement with it and for the reasons given by Lord Hoffmann I too would allow this appeal. I am also in full agreement with the further observations made by my noble and learned friends Baroness Hale of Richmond and Lord Neuberger of Abbotsbury.

BARONESS HALE OF RICHMOND

My Lords,

29.  I do not agree that my noble and learned friend Lord Hoffmann might reasonably be thought to have expressed his reasons for allowing this appeal at wearisome length. But I agree with everything else which he has said. This case is such a good illustration of the different roles of the family courts and homelessness decision-making system that I shall risk actually wearying the reader by adding a few words from a family lawyer’s point of view.

30.  When any family court decides with whom the children of separated parents are to live, the welfare of those children must be its paramount consideration: Children Act 1989, s 1(1). This means that it must choose from the available options the future which will be best for the children, not the future which will be best for the adults. It also means that the court may be creative in devising options which the parents have not put forward. It does not mean that the court can create options where none exist. Further, the court must not make any order unless it considers that to do so would be better for the children than making no order at all: s 1(5). This means that there must be some tangible benefit to the children from making an order rather than leaving the parents to sort things out for themselves. Additionally, if the making of an order is opposed, the court must have regard in particular to the statutory checklist of factors relevant to the children’s welfare, including the children’s own wishes and feelings and the ability of each of their parents to meet their needs: s 1(3), (4). But the court does not have to do this if the making of an order is unopposed, as it was in this case.

31.  The reality is that every effort is made, both before and during any family proceedings, to encourage the parents to agree between themselves what will be best for their children. There are many good reasons for this. The parents know their own children better than anyone. They also know their own circumstances, what will suit them best, what resources are available and what they can afford. Agreed solutions tend to work much better and last much longer than solutions imposed by a court after contested proceedings. The contest is likely to entrench opposing viewpoints and inflame parental conflict. Conflict is well known to be bad for children. Not only that, the arrangements made when the couple separate are bound to have to change over time, as the children grow up and their own and their parents’ circumstances change. Parents who have been able or helped, through mediation or in other ways, to agree a solution at the outset are more likely to be able to negotiate those changes for themselves, rather than to have to return to court for further orders.

32.  This all means that, although the court is never bound to make the order which the parents have agreed and is free to canvas solutions which the parents have not, it is only in a small minority of cases that the court makes an order after a full investigation of what the best interests of the children require. And even if the court has done this, it is open to the parents to agree upon alterations to the arrangements which the court has ordered. It would, for example, be open to parents to agree that, despite an order which contemplated a roughly equal division of the children’s time between them, in fact the children would spend most of their time with the parent who had stayed in the family home and only visit the other parent in his new home. That is another reason why the distinction drawn by the Court of Appeal between consent and contested orders, tempting though it may seem, does not work.

33.  It is worthwhile looking at the facts of this particular case in a little more detail, because the striking feature about them is how little we (and the housing authority) know about the family proceedings and how little the family court appears to have known about the family. The parents are not married to one another and moved into the family home, which is rented from a registered social landlord in the mother’s sole name, after all four of their children had been born. In August 2005, when the relevant order was made, those children were aged 16, 14, 9 and 6. The youngest is disabled with Prader-Willi syndrome (a genetic disorder affecting the hypothalamus). At that time the parents were still living in the family home.

34.  We do not know when the family proceedings began or what stage they had reached before the relevant order. We know that there were proceedings under Part IV of the Family Law Act 1996 (“Family Homes and Domestic Violence”) relating to the occupation of the family home. We know that orders were also made under the Children Act 1989 relating to the children (such orders can be made in any family proceedings even if no formal application has been made: see 1989 Act, s 10(1)(b)). We know that on 21 July 2005, the Family Law Act proceedings were adjourned until 2 August with a time estimate of half a day. This suggests that evidence may have been filed in those proceedings, but the main purpose of the adjournment was to secure the attendance of a social worker from the local authority with the relevant records relating to the four children. The father gave certain undertakings on that occasion but we do not know what they were. On 2 August, the Family Law Act proceedings were further adjourned for a “short mention” on 9 August. On 9 August, Her Honour Judge Knowles made the order in question. The father was to leave the family home by 4.00 pm on 20 September 2005 (with penal notice attached). The parents were to have shared residence of the youngest three children (orders are not made once a child has reached 16 unless the circumstances are exceptional: see 1989 Act, s 9(7)). Specifically, “the children do spend alternate weeks with each parent and half of each school holiday". Although neither order is expressed to be by consent, the parties agreed to a shared residence order. The father applied to the local authority for emergency housing on 18 August and it would appear that he was given temporary accommodation which enabled him to comply with the court’s order to leave the home.

35.  It seems unlikely, therefore, that evidence had been filed in any Children Act proceedings or that the Child and Family Court Advisory and Support Service, CAFCASS, had been involved in any way. The housing authority, on the other hand, made inquiries of the father’s GP, the local NHS Primary Care Trust, and the local children’s services. They also interviewed both parents. From their inquiries it emerged that the family had been known to the local children’s services since 2003, having been referred by the police “because of incidents of domestic violence". It also emerged that the two older children had been placed on the child protection register in April 2005 under the category of emotional and physical abuse. The assessments carried out by the social workers concluded that the mother, although working, did all the physical care of the children, running the house, collecting the two younger children after school, helping the children with their homework and preparing supper.

36.  There is, of course, another side of the story. The father claims to have been the primary carer for the children. He denies the allegations of domestic violence and puts the tensions between the parents down to the mother having formed a new relationship. My point is that the family court was in no position to adjudicate upon all this and, it appears, made no effort to do so. There also appears to have been no evidence of the children’s wishes and feelings. Yet these ought to be particularly important in shared residence cases, because it is the children who will have to divide their time between two homes and it is all too easy for the parents’ wishes and feelings to predominate. The history of police and social services involvement does suggest that there was a debate to be had about whether sharing the children’s time equally between the two parents was indeed in their best interests, even if there had been two homes available for them to do so. Having said that, I do thoroughly sympathise with the family judge. She accepted a compromise which avoided both the existing conflict within the home and the prospect of further conflict in the courts, by getting the father out of the house in return for the mother’s agreement that the children should spend half their time with him.

37.  Nevertheless, in my view, this order should not have been made. A residence order is “an order settling the arrangements to be made as to the person with whom a child is to live": 1989 Act, s 8(1). Although, as I have said, the parents are free to depart from it by agreement if they wish, it is an order which can be enforced, by physical removal of the children if need be: see Family Law Act 1986, s 34 (see also 1989 Act, s 14 and Magistrates’ Courts Act 1980, s 63). It is one thing to make such an order when each parent has a home to offer the children, even if it is not exactly what they have been used to before their parents split up. It is another thing entirely to make such an order when one parent is living in the family home and the other parent has no accommodation at all to offer them and no money with which to feed and clothe them (the father was living on £56 incapacity benefit based income support, apparently because he had a broken rib). Suppose, for example, that this couple had been living in privately owned or rented accommodation: it could not have been in the best interests of the children to make such an order unless the other parent had a reasonable prospect of obtaining suitable accommodation within a reasonable time. If a couple are married, the family court can rearrange the resources which they already have or are likely to have in the foreseeable future: see Matrimonial Causes Act 1973, Part II. The court will always try to use those powers to preserve a suitable home for the children and, if the resources are available and it is in their best interests to do so, to enable them to spend as much time as possible with the other parent. If the couple are not married, the family court has some rather more limited powers to alter their occupation rights in the short term, to transfer public sector tenancies in the long term, and to order capital provision for the children: see Family Law Act 1996, Part IV and Schedule 7, 1989 Act, Schedule 1. But there was no suggestion that those longer term powers would be appropriate here.

38.  Family court orders are meant to provide practical solutions to the practical problems faced by separating families. They are not meant to be aspirational statements of what would be for the best in some ideal world which has little prospect of realisation. Ideally there may be many cases where it would be best for the children to have a home with each of their parents. But this is not always or even usually practicable. Family courts have no power to conjure up resources where none exist. Nor can they order local authorities or other public agencies to provide particular services unless there is a specific power to do so (an example is the making of a family assistance order under section 16 of the1989 Act). The courts cannot even do this in care proceedings, whose whole aim is to place long term parental responsibility upon the state, to look after and safeguard and promote the welfare of children who are suffering or likely to suffer harm in their own homes: see Re G (A Minor) (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 AC 576. A fortiori they cannot do this in private law proceedings between the parents. No doubt all family courts have from time to time tried to persuade local authorities to act in what we consider to be the best interests of the children whose welfare is for us the paramount consideration. But we have no power to order them to do so. Nor, in my view, should we make orders which will be unworkable unless they do. It is different, of course, if we have good reason to believe that the necessary resources will be forthcoming in the foreseeable future. The court can always ask the local authority for information about this. It may even require a report from the local children’s services authority under section 7 of the 1989 Act.

39.  But the family court should not use a residence order as a means of putting pressure upon a local housing authority to allocate their resources in a particular way despite all the other considerations which, as Lord Hoffmann has explained, they have to take into account. It is quite clear that this was what the family court was trying to do in this case: after a series of postponed reviews, on 4 April 2006, the court not only recorded that the shared residence order had been made “in full consideration of section 1 of the Children Act 1989", but also “it’s [sic] concern that, due to no fault of either party, the shared residence order has not been implemented by reason of the inability of the respondent to obtain accommodation suitable for him to share with the said children". We do not know whether this was communicated to the reviewing officer whose decision letter was written on 3 May 2006 but it is a fair assumption that the order was designed to help the father’s case.

40.   I should add that, just as we have very little information about the family proceedings, so too had the local housing authority. I agree with the Court of Appeal to this extent: if the housing authority had had the benefit of a fully reasoned judgment of a family court, explaining why it was in the interests of these particular children to have two homes rather than one, that would obviously carry more weight than an order made by consent, where the local authority had no access to a reasoned judgment or any reports or other evidence which may have been filed. But it could never be determinative because the issues for the housing authority are different from the issues for the family court.

41.  There may be cases where a child could reasonably be expected to live with a parent in accommodation provided under the homelessness legislation, despite also having a perfectly suitable home with the other parent. Lord Hoffmann has given the example of a disabled child, whose parents might be better able to look after him properly if they shared his care between them. Another example might (I only say might) be 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). It might then be reasonable to expect those children’s existing living arrangements to be continued by the provision of social housing for one of the parents. But that is not this case.

42.  A final point is that this shared residence order is still in force: it was last confirmed “for the avoidance of doubt” on 13 November 2007, no doubt to preserve the position for these proceedings. This appeal is to be allowed. The father will not be provided with accommodation under the homelessness legislation to enable the children to spend half their time living with him. Unless, therefore, he is able to find accommodation for himself and the means to support his children while they are with him, that part of the shared residence order should be discharged. It may well be, however, that it would be in the best interests of the children for their father to have parental responsibility for them, sharing it with the mother in the same way that a married father does. This can be done by means of an order or agreement under section 4 of the 1989 Act: there is no need to make a residence order for this purpose, as there is, for example, in the case of a same sex parent who is not the genetic or gestational parent of the child: see In re G (Residence: Same Sex Partner) [2005] 2 FLR 957, CA.

43.  I too would allow this appeal and restore the decision of the circuit judge.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

44.  I have had the privilege of reading in draft the opinion of my noble and learned friends Lord Hoffmann and Baroness Hale of Richmond. I agree with Lord Hoffmann’s conclusion and the reasoning on which it is based, and I also agree with the additional remarks of Lady Hale.

45.  The only further point that I would like to mention arises out of the Court of Appeal’s treatment of the review decision in the present case. As Lord Hoffmann has explained, the review decision contained an error as to the effect of the shared residence order, but it was not an error which invalidated the decision. In my view, His Honour Judge Oppenheimer was quite correct when he said:

“the whole thrust of the review decision, in my judgment, dealt with the practical arrangements for these children both presently and in the future rather than the legal formalities which were entirely incidental to the practical questions that the housing authority is obliged to consider under the 1996 Act. This seems to me to be a technical error of law having no practical result on the outcome of the review decision, and in my judgment, relief in this case ought not to depend on such an error.”

46.  The rights granted by Part VII of the 1996 Act to those claiming to be homeless or threatened with homelessness are based on humanitarian considerations, and this underlines the fact that any challenge to a review decision should be carefully considered by the County Court to whom such challenges are directed. Given that the challenge in the County Court is treated as a first appeal, the responsibility on the Judge considering the challenge is heavy, and, if he or she is satisfied that there is an error in the reasoning which undermines the basis upon which the decision was arrived at, then the decision should obviously be set aside.

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.

48.  Further, at least in my experience, and as this case exemplifies, review decisions generally set out the facts, the contentions, the analyses and the conclusions in some detail. To my mind, given the importance, particularly to the applicant, of the issues considered in review decisions, such fullness is to be strongly encouraged. However, as any lawyer knows, the more fully an opinion is expressed, the greater the opportunity for alleging mistakes of fact, errors of law, or inconsistencies. If the courts are too critical in their analyses of such decisions, it will tend to discourage reviewing officers from expressing themselves so fully.

49.  In my view, it is therefore very important that, while Circuit Judges should be vigilant in ensuring that no applicant is wrongly deprived of benefits under Part VII of the 1996 Act because of any error on the part of the reviewing officer, it is equally important that an error which does not, on a fair analysis, undermine the basis of the decision, is not accepted as a reason for overturning the decision.

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.

51.  Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed.

52.  In the present case, while one paragraph of the review decision contains an error, it seems to me that it is not an error which in any way undermines the reasoning upon which the conclusion is based. It is also fair to add that, if one excises the short passage which contains the error, the review decision in this case, when read as a whole, contains a full and very fair summary of the relevant facts, an accurate assessment of the issues, a clear explanation of the reviewing officer’s reasoning, and a conclusion which seems to me to be unassailable.

 
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