Here is a question from “Degreegirl48” who is a local authority worker, answered by Ben Reeve Lewis.
A mother and father with 3 children. They agree between them that one of the children should go into the care of the father and he has recently successfully claimed for child benefit and child tax credit. The father, however, is homeless (currently sofa surfing) and has approached the council for assistance. The mother has her own accommodation and the child (aged 10 yrs) has always lived with her.
Now I know that under Holmes-Moorhouse case law that I am not bound by the parents’ decision but I am struggling to write a watertight section 184 letter. My question really is what are the pitfalls in cases of this sort or put another way what are the gaps I need to plug in my decision? I am fully expecting a challenge.
Any help appreciated
An interesting and common quandary. There isn’t a definitive answer but there are some elements to consider and your intimate knowledge of the case will provide more answers for you there.
Holmes-Moorhouse relates more to court orders on joint responsibility, not a casual arrangement between two estranged partners but may shed some light.
The key is in the word ‘Dependants’. Shared access or even intended responsibility isn’t enough on its own. The children must actually be dependent on the parent in some way, and not just financially, which is what homelessness units often mistakenly focus on.
The main argument to avoid is that the mother has greater residency responsibility; arguments on this basis don’t seem to work very well.
There is a raft of case law on arrangements where 1 partner has the child for part of the week but as I understand it here, the dad has the child permanently so we need to look at it from a slightly different angle. That of a child being ‘Reasonably expected to reside’ with that particular parent.
Could the child in this case be reasonably expected to reside with someone who himself has nowhere to live? So could it be that the child is unable to ‘Depend’ on the father to provide for them?
Of course your guy will say he needs the accommodation my the council so his child can reasonably reside with him but this can point you to Port Talbot v McCarthy 1990, where the judge said “A wish to have shared residency is not the same as actually having it”
Back to Holmes-Moorhouse: The courts said that it is for the local authority to decide on reasonableness in the circumstances, taking into account “Schemes for housing the homeless” and the “Allocation of scarce resources”.
The courts also interestingly said that “Only in exceptional circumstances” would it be reasonable to expect a child with an adequate home with one parent to be provided with another home under Part VII.
On another angle there is also an interesting intentionality argument in Oxford CC v Bull 2011 whereby some kids moved in with the father against the agreement of his landlord who subsequently evicted the man. The court of appeal decided the children were dependant on him but agreed with the council, that in inviting the children to stay with him he had deliberately done something that lead to the loss of his accommodation. And yes I know this raises other arguments of settled accommodation reasonable to remain but these are the things to consider as I see it.
Of course to address the application at an intentionality level you would have to accept that the child was a dependant. If it was me I would base my decision on the idea that his child cannot be reasonably expected to reside with him if he himself has nowhere to reside and that by definition the child cannot be dependent on him.
Note that Ben has a special course on writing watertight s184 letters which you can read about >> here.