Can the Children Act 2004 be used to prevent children being dispossessed?

Author: Lara McDonnell
In: Article Published: Monday 30 April 2018

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Can the Children Act 2004 be used to prevent children being dispossessed of their home in circumstances where their parents no longer have any private law right to occupy the home in question?

This was the question the Court of Appeal had to address in the case of Davies v Hertfordshire CC [2018] EWCA Civ 379; judgment was handed down on 6th March 2018.

The appellant (A) was the resident school caretaker at a school in Hertfordshire. In January 2003 A took up occupation of the school bungalow with his family, namely his wife and four children - presently aged 19, 17, 15 and 11 - when he commenced his employment. The respondent (R) owned the bungalow as a local authority (not as a local housing authority).

Laing J, the judge at first instance, found A occupied the bungalow pursuant to a service occupancy. On 12 June 2015 A was dismissed from this employment for gross misconduct and consequently A’s licence to occupy ended at the same time as his employment. Thereafter, A and his family remained in occupation of the bungalow as trespassers, having no private law right to remain.

On 16 June 2015, R served a Notice to Quit (NTQ) which provided for possession to be given on 10 July 2015. A and family remained in possession and R commenced possession proceedings in the County Court at Hertford (subequently transferred to the High Court on A’s application). 

A vigorously defended the claim on several grounds, arguing that service of the NTQ was unlawful 'in the public law sense' as R did not have regard to the best interests of A’s children under section 11 of the Children Act 2004, as well as A’s disability and thus his rights under the Equality Act 2010, and A and his family’s rights under the ECHR. Consequently, contending that a possession order would be disproportionate and unreasonable, a breach of the relevant legislation and Convention. A highlighted that: (i) the bungalow had been the family home for over 12 years; (ii) the family had no alternative accommodation; (iii) A had been a good tenant; and (iv) the property had been specially adapted to accommodate A’s disability and A was suicidal, on medication and had mental health issues.

As to the defence based on section 11 of the Children Act, the material part provides: 

'(1) This section applies to each of the following-

(a) a local authority in England;

(2) Each person and body to whom this section applies must make arrangements for ensuring that—

(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children …'

Laing J held that as A was a service occupier at the inception of his employment agreement, he had no security of tenure and there had been no need for R to serve a NTQ, as the agreement terminated automatically on A’s dismissal – and thus his right (and his family’s) to occupy the bungalow. Further, neither the Equality Act nor section 11 of the Children Act provided a defence to the possession claim. However, she said that if she was wrong on that Children Act point of principle, then she would have found that R had breached that obligation - that R, as a local authority, had failed to ensure its functions were discharged having regard to the need to safeguard and promote the welfare of children. On the evidence, R had given no thought to the presence of A’s children in the bungalow and the effect of service of the NTQ on their welfare.

Conversely the judge found no breach of the Equality Act, as there was no evidence before her of A’s disability.

She concluded that seeking possession was a proportionate means of achieving a legitimate aim.

Further that exempting service occupiers from security of tenure was not incompatible with the ECHR and that the varied treatment was objectively justifiable.

On appeal, the Court of Appeal were limited to considering whether, as a point of princple, section 11 of the Children Act could ground a defence to possession proceeedings. The court concluded that it could, though on the facts of the case, the appeal ought still to be dismissed.  This was because the judge at first instance had made no finding of fact that the children in this case would encounter '...any unusual or compelling circumstances beyond the normal and understandable difficulties arising from the uncertainty over the future of their home.' In such circumstances, it had not been established that the impact on the children from being deprived of their home did justify R being deprived of its otherwise unanswerable immediate right to possession of the bungalow pursuant to its property rights, even on a temporary basis. The Court of Appeal thus held that, even had the first instance judge applied the correct point of principle, the outcome for A would have been the same.

Accordingly, the appeal was dismissed.

No doubt a difficult decision for the bench to reach, nonetheless, it is submitted that it is the correct one on the facts, in order that private law property rights be protected and to prevent the floodgates opening for similar children-based defences. 

LARA MCDONNELL © 2018
BARRISTER
33 BEDFORD ROW

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.