Court of Appeal
Published November 19, 2007

Holmes-Moorhouse v Richmond-upon-Thames London Borough Council

Before Lord Justice Auld, Lord Justice Rix and Lord Justice Moses Judgment October 10, 2007

A shared residence order made by a family court in uncontested proceedings did not determine the question whether a parent in whose favour the order was made had a priority need for housing as a homeless person with dependent children who might reasonably be expected to reside with him.

However, an order made where shared residence was contested would be determinative because the court would have been obliged to have regard to the capability of the parents to accommodate the children and would have given the local authority the opportunity to comment on that issue.

The Court of Appeal so held allowing an appeal by the claimant, Edward Holmes-Moorhouse, from the dismissal by Judge Oppenheimer in Brentford County Court on October 27, 2006 of his appeal under section 204 of the Housing Act 1996 against a decision of the defendant, Richmond-upon-Thames London Borough Council, that he was not in priority need of accommodation as a homeless person.
Mr Nicholas Nicol for the claimant; Mr Andrew Arden, QC and Mr Matthew Hutchings for Richmond.

LORD JUSTICE MOSES said that by a consent order made in family proceedings in 2005 the claimant’s three minor children were to reside with him one week in two, spending the other with the mother. The father was homeless as a result of the separation and sought accommodation as having priority need by virtue of s 189(1)(b) of the Housing Act 1996.

The local authority turned him down on the basis that the children would merely be staying with him rather than residing with him. He contended that the family court’s decision established that his children might reasonably be expected to reside with him.

His Lordship did not accept that an order made by consent could be determinative of that issue, since the statute required the local authority to make an evaluative judgment.

However, had an order been made in contested proceedings where the court would have been obliged to consider how capable the parent was of meeting the child’s needs and would have heard from the local authority, the order would have been determinative.

The basis on which the local authority had rejected the claimant’s application for accommodation was not a valid ground for rejection. Otherwise it would always be open to the council in such cases to say that the child was merely staying with one or other parent.

The housing authority ought to consider afresh the needs of a child to live with the applicant, always bearing in mind that those concerned had already agreed that the children should live with more than one parent.

Lord Justice Auld and Lord Justice Rix agreed.

Solicitors: Scully & Co, Brentford; Mr Richard Mellor, Twickenham.

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