(House of Lords; Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury; 4 February 2009)
By consent the judge had made both a shared residence order in respect of the couple's three younger children, and an order that the father leave the family home. 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, on the ground that dependent children might reasonably be expected to reside with him. 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, and subsequently, on review, on the basis that the children were staying with, not living with, the father. The father's appeal was allowed; the Court of Appeal held 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, and that if the housing authority wished to dispute this, it should intervene in the family proceedings. The Court of Appeal also held that if a shared residence 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, the local housing authority was obliged to consider afresh the reasonableness of an expectation that the children should live with both parents, taking into account the children's needs.
The House of Lords allowed the authority's appeal: a shared residence order did not oblige a housing authority to regard a homeless parent as a person in priority need of accommodation, on the ground that dependent children might reasonably be expected to reside with that parent. Despite the superficial similarity of the questions asked by a family court considering a child's future residence and the questions to be asked by a housing authority, the questions were not the same. A family court should not make a shared residence order unless it appeared reasonably likely that both parents would have accommodation in which the children could reside, whereas a housing authority was deciding whether such accommodation should be provided: unlike the housing authority, the family court had no power to create accommodation for a parent without suitable accommodation. The needs of the child would have to be exceptional for a housing authority to decide that it was reasonable to expect an applicant parent to be provided with accommodation for a child if that accommodation would be empty at least half of the time. The family court could not use a residence order as a means of putting pressure on a local housing authority to allocate their resources in a particular way. Housing authorities should not intervene in family proceedings, although it would be helpful to the family court to know what accommodation the housing authority would be providing. In this case, the shared residence order should not have been made, given the father's lack of suitable accommodation.