(Court of Appeal; Auld, Rix and Moses LJJ; 10 October 2007)
The judge had made a shared residence order in respect of the couple's three younger children, and an order that the father leave the family home, both by consent. The children were to spend alternate weeks and half of each school holiday with each parent. The father applied to the housing authority for assistance as a homeless person in priority need. The application was rejected, at first because residency and care were shared and the children's needs could be met while they were with the mother, but on review on the basis that the children were staying with, not living with, the father.
The local housing authority was required to satisfy itself of the reasonableness of the expectation of an applicant for housing assistance that dependant children would come to live with the applicant; the order of the family court under s 8 was not dispositive of that question. However, there was no room for permitting the scarcity of resources to play a part in considering the reasonableness of the expectation that dependant children would come to live with the applicant. A distinction must be drawn between those cases in which the residence order was made despite opposition, and those in which it was made by consent. Where a residence order was opposed, the family court had a statutory obligation to have regard to the accommodation available to each parent. Where a parent had no available accommodation, the authority must consider the likelihood of such accommodation becoming available, and would therefore be bound to make enquiries of the relevant housing authority. The housing authority could take that opportunity to place before the family court matters relevant to the authority's own statutory obligations. When a shared residence order had been made notwithstanding such enquiries, then it was difficult to see how the housing authority could displace the conclusion that the expectation of the parent benefiting from the shared order was reasonable. However, where the order was made by consent and it was apparent that the court had not considered the capability of the parent to meet the accommodation needs of the child, a local housing authority was obliged to consider afresh the reasonableness of the parents expectation. If it decided that the expectation was not reasonable, the parent should then return to the family court so that the court could reconsider the order.