HOUSING LAW PRACTITIONERS ASSOCIATION 15th July 2009

RELATIONSHIP BREAKDOWN Felicity Thomas Westgate Chambers

Non-Molestation Orders

Any associated person (as defined by s62 FLA 1996 below) may apply for a non-molestation order against another person. A non-molestation order (s42 FLA1996) is an order containing one or both of the following provisions:

A provision prohibiting a person (the Respondent) from molesting another person who is associated with the Respondent and/or a provision prohibiting the Respondent from molesting a relevant child.

They are designed to protect individuals and forbid specific kinds of distressing behaviour e.g. violence, and molestation generally such as persistent telephone-calls, abusive comments, unwanted attentions. They do not remove someone from the home. The court has held that molestation must include conduct, which clearly harassed and affected the applicant to such a degree that the intervention of the court was justified. In C v C [1998] FD 1 FLR 554 the judge refused a husband a non-molestation order to prevent his wife from giving further information to newspaper reporters as such an activity came nowhere near molestation as envisaged by the FLA.

The Domestic Violence, Crime and Victims Act 2004 contain measures that make it a criminal offence to breach a non-molestation order. Non-molestation orders and occupation orders are also extended to same sex couples and those that have never co-habited.

When orders may be made

The court may make a non-molestation order:  on application from a person associated with the respondent (with or without other family proceedings); or  in any family proceedings, even though no application has been made, if the court considers it of benefit to any of the parties involved i.e. the court may take the initiative. [s42(2) FLA 1996] An order made under this limb ceases to have effect if the proceedings are withdrawn or dismissed. Associated Persons Section 62(3)

Associated persons are:-

 people who are or have been married to each other.

 cohabitants or former cohabitants.

 people who live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder.  Relatives; defined as: father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s; spouse/civil partner or former spouse/civil partner, or the brother, sister, uncle, aunt, niece or nephew (whether of the full blood or of the half blood or by affinity) of that person or of that person’s spouse/civil partner or former spouse/civil partner s63(1).

 people who have agreed to marry one another (whether or not that agreement has been terminated) See s44(1) and (2) - written evidence of an agreement to marry must be produced to the Court unless there is evidence, satisfactory to the Court of the gift of an engagement ring or a ceremony entered into by the parties in the presence of one or more other persons assembled for the purpose of witnessing the ceremony. Applications for orders must be made within 3 years of the termination of the agreement to marry.

 non cohabiting couples if they have or have had an intimate personal relationship with each other which is or was of significant duration.  parents of a child or people who have had parental responsibility for that child.  parties to the same family proceedings.  natural parents or grandparents of an adopted child and the adopted child or the adoptive parents.

How the court decides on non-molestation orders

When making non-molestation orders the court must have regard to:

All the circumstances of the case including the need to secure the health, safety and well- being of the applicant or in the case of any family proceedings, the person for whose benefit the order would be made, and any relevant child. s 42(5)

It is possible to express the molestation in general terms in the order, or refer to specific acts of molestation or both.

Ex Parte Orders Section 45(1) and (2)

In some cases, urgent action is necessary. An ex parte order may then be sought. These are orders granted without prior notice having been served on the perpetrator. The court may, in

2 any case where it considers that it is just and convenient to do so, make an occupation order or a non-molestation order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court; s45(1).

The Court is to have regard to all the circumstances including the following: -

(a) Any risk of significant harm to the applicant or a relevant child, attributable to the conduct of the Respondent, if the order is not made immediately

(b) Whether it is likely that the applicant will be deterred from pursuing the application if an order is not made immediately and

(c) Whether there is reason to believe that the Respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved in effecting service of proceedings or in effecting substituted service.

The respondent must be given the opportunity to have a full hearing as soon as just and convenient to do so.

Duration: The order can be expressed as running for a specific time or until further order. Application for extension is made on Form FL403.

The application procedure

Applications can be made in the county court, a family hearing centre, a care centre, the Principal Registry or a family proceedings court.

Where the applicant is under 18 or needs to seek leave to make the application because they are under 16, the application must be made in the High Court.

The application is made on Form FL401 supported by a sworn statement stating the grounds. The current fee payable is £60.

If the application is ex parte, the order will often be made for 7 - 28 days to allow for service on the Respondent and listing for an on notice return date. On that date the Respondent will have the opportunity to respond to the allegations made against them. If they accept them and are prepared to give undertakings which satisfy the court that the conduct complained of will stop then the matter may rest there. If the allegations are disputed then the return date is usually used to give directions for trial. Please see the note below on enforcement.

Enforcement of non-molestation order

Section 1 of the Domestic Violence, Crime and Victims Act 2004 (DVCVA) 2004 amended the FLA 1996 by the addition of s42A which states that breach of a non-molestation order will be a criminal offence. Hence the enforcement of (civil) non-molestation orders moved to the criminal court system. This means that applicants no longer need to ask the court to attach a power of arrest which should make these orders more effective. This change came into effect on 1st July 2007.

3 The amended s.46(3A) FLA 1996 technically makes it impossible for the court to accept an undertaking where it appears to the court that either R has used or threatened violence against the App or R child such that protection should be provided by s.42(A). In practice courts had continued to accept undertakings as otherwise most matters would be contested resulting in increased litigation. However this situation has come to a head since s.42(A) came into force which criminalises the breach of a non molestation order. This means that technically undertakings shouldn’t be accepted any longer.

In practice the efficacy of this provision is questionable. Many more applicants are unwilling to impose an order which will certainly result in arrest and criminal charges if breached and the CPS will not always decide to charge breaches where there is no certainty of conviction because the evidence may not be deemed to be strong enough.

Where the matter is not pursued by the CPS, although the Applicant retains the right to pursue the breach in the civil courts by way of a warrant for arrest from the county court or straightforward committal proceedings, she will not obtain funding for it from the LSC. If a Respondent has been convicted of breaching a non molestation order he cannot be punished again in the civil courts and vice versa. (s42 (3) and (4))

Homelessness and domestic violence

In DCLG’s guidance on homelessness prevention in June 2006, relationship breakdown is identified as the main cause of homelessness for 20% of households accepted as homeless and in priority need in 2004/05 and of these cases, two thirds (13% of all homelessness acceptances) involved violence.

A quick recap of the homelessness process In determining the type of duty owed to a homeless applicant, under Part VII of Housing Act 1996 a local authority has to consider:-

1 • whether or not there is accommodation available to the applicant and members of her/his household (s175)(further defined below)

1 • whether the applicant is eligible for assistance under (s185)

1 • whether the applicant or any member of her/his household is in priority need (s189)

1 • whether or not the applicant is intentionally homeless (s191)

1 • If the applicant is able to pass these tests then the authority can consider:

1 • whether the applicant and/or members of her/his household has a local connection or whether there is another authority it would be safe to refer them (s198/9)

Interim duty to accommodate

If a housing authority “has reason to believe that an applicant may be eligible for assistance, homeless and have a priority need, the authority will have an immediate duty under s.188 to ensure that suitable accommodation is available for the applicant (and his or her household) pending the completion of the authority’s inquiries and its decision as to what duty, if any is owed to the applicant under Part VII of the Act. Authorities are reminded that “having reason to believe” is a lower test than ‘being satisfied’ (Code of Guidance Para 6.5).

4 The s188 duty ends once the housing authority has notified the applicant of its decision as to what duty, if any, is owed to him or her under Part VII, even if the applicant requests a review of the decision. Housing authorities should give the applicant a reasonable period of notice to vacate the accommodation to enable him or her to make alternative accommodation arrangements for him/herself. There is a discretionary power to secure that accommodation is available, pending the outcome of a review. (Code of Guidance Para 7.10)

Housing authorities should avoid using Bed and Breakfast (B&B) accommodation wherever possible. Where B&B accommodation has been used in an emergency situation, applicants should be moved to more suitable accommodation as soon as possible. The Homelessness (Suitability of Accommodation) (England) Order 2003 provides that B&B accommodation is not suitable for families with children and households that include a pregnant woman unless there is no alternative accommodation available and then only for a maximum of six weeks. (Article 4).

The Code of Guidance states that housing authorities “should develop close links with women’s refuges within their district, and neighbouring districts, to ensure they have access to emergency accommodation for women applicants who are fleeing domestic or other violence or who are at risk of such violence. However, housing authorities should recognise that placing an applicant in a refuge will generally be temporary expedient only, and a prolonged stay could block a bed space that was urgently needed by someone else at risk. Refuges should be used to provide accommodation for the minimum period necessary before alternative suitable accommodation is secured elsewhere. Housing authorities should not delay in securing alternative accommodation in the hope that the applicant might return to her partner. (Code of Guidance Para 16.27)

Meaning of homelessness

A person is homeless if s/he has no accommodation available for his/her occupation, in the United Kingdom or elsewhere, which s/he: a) Is entitled to occupy by virtue of an interest in it or by virtue of an order of a court; b) Has an express or implied licence to occupy; or c) Occupies as a residence by virtue of any enactment or rule of law giving him/her the right to remain in occupation or restricting the right of another person to recover possession. (s.175(1))

A person is also homeless if s/he has accommodation but: a) S/he cannot secure entry to it; b) It consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where s/he is entitled or permitted both to place it and to reside in it. (s.175(2))

A person is homeless if it is “not reasonable to continue to occupy” the current accommodation. (s175(3) HA 96)

Therefore in the absence of domestic violence, a relationship breakdown will not automatically mean that a partner/spouse moving out will be considered “homeless”. The applicant will have to show that it was “not reasonable to continue to occupy”.

5 It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against her/him, or against - (a) A person who normally resides with her/him as a member of her/his family, or (b) Any other person who might reasonably be expected to reside with her/him. (s.177(1))

“Violence” means violence from another person or threats of violence from another person which are likely to be carried out. `Domestic violence' means violence or threats of violence likely to be carried out by a person with whom the applicant is `associated' (defined in s178 and largely the same as the definition in FLA 1996 s62). In this context, domestic violence is not confined to incidents within the home.

Bond v Leicester CC [2001] EWCA Civ 1544

This was an appeal against an intentionality decision. B had been forced for the third time to leave accommodation with her children due to domestic violence from her ex partner. The council found her intentionally homeless because she had failed to take preventive action under the criminal or civil law against the partner and she had not approached the police or her Housing Association landlord for help. The Court of Appeal found that on a proper construction of s177 no account could be taken of general housing circumstances. The only consideration was the probability test of s177(1) i.e. whether it was probable that continued occupation would lead to domestic violence or the threat of domestic violence likely to be carried out. That was a question of fact, devoid of value judgments about what an applicant should or should not have done.

The case firmly establishes the principle that where a homeless applicant is fleeing domestic violence a housing authority cannot have regard, among other things, to the availability of other remedies, both legal and practical, when determining whether it is probable that domestic violence will result from the continued occupation of accommodation.

‘ Reasonable to continue to occupy’

This is the concept expressed in s175(3) HA 1996: “A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.” This was the focus of the recent House of Lords judgment in Birmingham v Ali and Moran v Manchester [2009] UKHL 36.

Moran dealt with the situation where the applicant no longer falls within the ambit of s177(1) because they had already fled the violent home and had taken up a place at a Women’s Aid Refuge but had then lost the place due to their own conduct. On the subsequent homelessness application, Manchester City Council had found the applicant intentionally homeless on the basis that the Refuge place was accommodation it was reasonable to continue to occupy.

The question had been addressed previously in the case of R v Ealing London Borough Council, ex p Sidhu (1982) 80 LGR 534. A woman had left her home because of domestic violence and gone to stay in a refuge. The local authority argued that she was not homeless because she had accommodation available to her in the refuge. That argument did not hold sway with Hodgson J, who did not regard a crisis refuge of this sort as accommodation within the meaning of the Housing (Homeless Persons) Act 1977 (the equivalent to Housing Act 1996 Part VII at the time). He saw it as essential that women who had gone to refuges were still seen as homeless. Otherwise the refuges would have to give them 28 days notice when they came in so that they would be under threat of homelessness (under s 1(3) of the 1977

6 Act). This would be totally undesirable and add stress to stress. The protection of the Act would be watered down or removed from a whole class of people whom it was set up to help. That decision so obviously accorded with the purpose of the 1977 Act that it has never been expressly overruled since.

However, the 1977 Act did not contain any requirement that accommodation be reasonable to occupy. Thus in Pulhofer v Hillingdon London Borough Council [1986] AC 484, the House of Lords decided that a couple living with their two young children in one room in a guest house without cooking or laundry facilities were not homeless within the meaning of the Act. However intolerable their living conditions were, there was no requirement that their accommodation be appropriate or reasonable, as long as it could properly be described as accommodation and was available for them to occupy.

While Sidhu had never been expressly overruled it was clearly incompatible with the decision in Pulhofer, essentially because the applicant in Sidhu did indeed have a roof over her head. Both cases are discussed in the Moran decision.

The Moran case concerns an applicant mother who having fled her home due to the violence of her partner for the third time, took a place in a refuge. About a month later she was evicted after an argument with staff to which the police were called. She applied as homeless and was provided with temporary accommodation (s188 HA 1996). The following day she was found to be intentionally homeless and given 3 weeks notice to quit the TA. The decision was upheld on review on the basis that the refuge had been accommodation which it was reasonable for her and her family to continue to occupy.

On the s204 appeal in the county court it was found that the reviewing officer had not had due regard to Sidhu and the code of guidance advice (now at Para 16.27) that women’s refuges are intended only as short term shelter in a crisis and should not be regarded as reasonable to continue to occupy in the medium and longer term. The decision was quashed and sent back for a fresh decision.

The Court of Appeal ([2008] EWCA Civ 378) held that Sidhu was wrong, the Code of Guidance should be reconsidered and that on the facts of this particular case, the reviewing officer could not reasonably have come to any other decision. A refuge could be accommodation which it would be reasonable to continue to occupy. The court gave guidance as to the factors to be taken into account in deciding whether accommodation of this type would be reasonable to continue to occupy (paras 49 and 50).

The appeal to the House of Lords was heard with Women’s Aid Federation and the Secretary of State for Communities and Local Government intervening. The appeal was joined with the Ali case because although the facts were very different, similar questions regarding when it is reasonable to continue to occupy accommodation were raised.

So the key question falling to the House of Lords in the Moran case was whether refuge accommodation (if it could be considered accommodation at all) was reasonable for a person to continue to occupy.

Baroness Hale in an opinion drafted jointly with Lord Neuberger framed the question in this way:

“Does section 175(3) mean that a person is only homeless if she has accommodation which it is not reasonable for her to occupy another

7 night? Or does it mean that she can be homeless if she has accommodation which it is not reasonable for her to continue to occupy for as long as she would occupy it if the local authority did not intervene?” (Para 34)

Her conclusions are broadly that while many have assumed that the former is the case, that is in fact wrong and it must be the latter.

The reason it is wrong to only consider an applicant homeless if they cannot reasonably occupy their accommodation for another night, is that the language of both sections 175(3) and of 191(1) (intentionality) encompass both the present and future. Not referring to accommodation it is or was reasonable to occupy but that which would be and would have been reasonable to occupy. (Para 35 – 37)

The decision in Sidhu is expressly approved as instinctively right although it is accepted that it could not be reconciled with the ruling in Pulhofer.

Baroness Hale then clarifies the decision in relation to Moran in these terms:

“ Once it is decided that it would not be reasonable for a particular woman in a refuge to continue to occupy her place there indefinitely, it becomes unnecessary to decide whether the refuge is “accommodation". Women will be homeless while they are in the refuge and remain homeless when they leave. A woman who loses her place there, even because of her own conduct, does not become homeless intentionally, because it would not have been reasonable for her to continue to occupy the refuge indefinitely.”

This decisively puts an end to the prospect of refuges becoming blocked with residents who can’t move on because they are not deemed to be homeless or the prospect raised in Sidhu that refuges would have to begin serving 28 day notices to quit on residents on entry to enable them to apply as homeless.

However, it does raise the unpalatable prospect of further litigation about circumstances in which a housing authority might argue that it was reasonable to continue to occupy indefinitely, perhaps not in the refuge context but possibly with other crisis accommodation.

The House of Lords do seem to have inserted the term ‘indefinitely’ into s175(3) which certainly alters its meaning significantly.

It is not immediately clear why Sidhu was not expressly reaffirmed (having never been actually overruled) and the principle reiterated that crisis accommodation is not accommodation within the meaning of the Act. (Answers on a postcard?)

Shared residence and homelessness

Following a relationship breakdown, the issue of whether the children are dependant on a homelessness applicant may be an issue – i.e. which partner/spouse are the children dependant on and residing with – is there an argument that they are dependant on and residing with (or could reasonably be expected to reside with) both?

8 Historically this question tended to be resolved by local authorities assessing the facts of the case and making a determination on the basis of which parent had the greater care and control of the children, e.g. who had the children for the greatest time, who provided for the children financially, etc (see R v LB Lambeth ex p Vagliviello (1990) 22 HLR 392 CA, R v Oxford ex p Doyle (1997) 9 CL 335 QBD, R v Westminster CC ex p Bishop (1996) 29 HLR 546 QBD).

This approach came under scrutiny in Holmes-Moorhouse v LB Richmond upon Thames (HL) [2009] UKHL 7. The case focused on the question of when it is reasonable to expect children to live with a homeless applicant in terms of establishing priority need. It concerned a consent order made in the family court that the father leave the family home and that the parents were to have shared residence of three of their children. The order provided that the children should spend alternate weeks and half of their school holidays with each parent. The father applied as homeless stating that he had dependent children living with him in the family home and that the effect of the shared residence order was that, when he left, they might reasonably be expected to reside with him. The council’s decision however was that the children could not reasonably be expected to reside with the father if that required the Council to provide a second home for them. He appealed.

Although he failed in his appeal in the County Court, the Court of Appeal upheld the appeal and held that where an order was made by consent it was not determinative and did not bind the housing authority. The Court would expect the housing authority to carefully enquire into and consider the children's needs in assessing the reasonableness of the parents' expectation. By contrast where an order was made after a contested hearing the court’s decision would bind the housing authority in the absence of a change of circumstances. Because of the potential impact on councils scarce resources the housing authority should intervene in family proceedings to comment upon local conditions and the effect of a shared residence order on others in priority need and on its own allocation scheme in the family proceedings.

A shortage of housing stock ought not to affect the local authority’s judgement as to whether a child might reasonably be expected to reside with a parent (in this respect overruling R v Oxford City Council ex-parte Doyle [1997] 30 HLR 506). As the order had been made by consent the council had been entitled to reach its own decision. The decision was quashed for errors in the decision letter.

On appeal, the House of Lords found that the Court of Appeal had erred in holding that the fact that housing was a scarce resource should be regarded as irrelevant to the question of whether it was reasonable to expect children to live with a homeless parent. In deciding whether it is reasonable to expect children under a shared residence order to reside with the applicant parent “it [the housing authority] would no doubt have to take into account the wishes of both parents and the children themselves. It would also have to have regard to the opinion of a court in family proceedings that shared residence would be in the interests of the children. But it would nevertheless be entitled to decide that it was not reasonable to expect children who were not in any sense homeless to be able to live with both mother and father in separate accommodation.” [Lord Hoffmann at para 14]

Further, the Court of Appeal had been wrong to suggest that a housing authority should intervene in family proceedings to argue against the court making a shared residence order.

When a court determines any question with respect to the upbringing of a child the child’s welfare is the paramount consideration. The Children Act 1989 contains a welfare checklist to which regard must be had when considering whether to make a residence order. So, the court will take into account the emotional needs of the child to be able to treat his/her father’s

9 home as his/her own and the effect of depriving him/her of that security would have on his/her development.

“ The question for a housing authority under Part VII of the 1996 Act is not the same. In deciding whether children can reasonably be expected to reside with a homeless parent, it is not making the decision on the assumption that the parent has or will have suitable accommodation available. On the contrary, it is deciding whether it should secure that such accommodation is provided.” [Lord Hoffmann at para 9]

The two procedures for deciding different questions must not be allowed to become entangled with each other.

The reasonable expectation (of whether a child resides with the applicant parent) does not refer to either the parent or the housing authority’s expectations but is an impersonal objective standard (Para 10).

Baroness Hale went on to criticise the family court for making the shared residence order in a case where there was clearly no prospect of the father having the resources to take up that shared residence without assistance from the local authority (paras 37 – 42) and suggests that in such cases the shared residence order should be discharged. This appears to contradict Lord Hoffmann’s analysis that the two schemes are separate and should not become entangled.

However, the overall conclusion was that the existence of a shared residence order is just a part of the facts a housing authority will have regard to when deciding whether it is reasonable to expect a child to reside with the applicant parent and thus bestowing a priority need on that applicant. Only in exceptional circumstances would it be reasonable to expect children who had a home with one parent to be provided under Pt VII with another so that they could also reside with the other parent. The children's needs would have to be exceptional before a housing authority would decide that it was reasonable to expect an applicant to be provided with accommodation for them which would stand empty for at least half of the time.

In the result then the case may not substantially alter how housing authorities approach the question of where the children may and may not be reasonably expected to reside. They are likely to fall back on the traditional approach of examining who has greater care and control of the children. However it has clarified some issues. It is now clear that scarcity of housing is indeed a relevant consideration here.

The decision does not close the door on this kind of application. Although it will only be in exceptional circumstances that an applicant with shared residence will be found to have the requisite priority need it does preserve that possibility. Cases are very likely to still appear on this issue; what about a household where the applicant parent has less than 50% residence of a very disabled child which provides critical respite to the other parent? What about where a relationship breakdown on the loss of the family home and both apply as homeless with equal shared care of the children?

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