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One of the Catch 22 situations in which non-custodial parents frequently find themselves is that if they cannot provide appropriate overnight accommodation for their children they will not be granted overnight staying contact, much less be named a resident parent. Local authorities will be reluctant to help out with this.

Consider the case of Edward Holmes-Moorhouse who had a Shared Residence Order for three of his children, stating that the children should spend alternate weeks and half of their school holidays with each parent. Unfortunately the Court also ordered the father out of his home.

The father applied to Richmond Borough Council for assistance under Part VII of the Housing Act 1996, which imposes duties on a housing authority in respect of accommodation for people who are homeless or threatened with homelessness. The Council accepted that the father was threatened with homelessness but not that he had priority need. Section 189(1) of the 1996 Act listed the categories of persons who had priority need. Section 189(1)(b) included ‘a person with whom dependent children reside or might reasonably be expected to reside’.

The Council argued that if it was obliged to provide a second home for the children they could not reasonably be expected to reside with their father. The Council was not constrained by the Children Act to consider the best interests of the children; it had merely to operate under the Housing Act.

The father appealed the Council’s decision but his case was dismissed by Judge Oppenheimer at Brentford County Court; the father appealed successfully in the Court of Appeal ([2008] 1 WLR 1289) but this decision was overturned when the council appealed in the House of Lords (Holmes-Moorhouse v LB Richmond upon Thames [2009] UKHL 7).

The question which the housing authority therefore had to ask itself was whether it was reasonably to be expected, in the context of a scheme for housing the homeless, that children who already had a home with their mother should be able also to reside with the father. In answering that question, it would 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.

The parents returned to Court complaining that the council had made implementation of the Shared Residence Order impossible; the Court recorded its concern in a further order that through no fault of either party the SRO had not been implemented. The children (presumably; – it is not recorded) remained with their mother. Baroness Hale concluded:

Family court orders are meant to provide practical solutions to the practical problems faced by separating families…… Ideally there may be many cases where it would be best for the children to have a home with each of their parents. But this is not always or even usually practicable. Family courts have no power to conjure up resources where none exist.

This is not, unhappily, a situation which is going to improve; from April 2013, if you live in social housing and have a spare bedroom, you will have either to downsize or to face a cut in your benefits: a reduction of 14% if you have one spare bedroom, or 25% if you have two or more spare bedrooms. This change has been dubbed ‘the bedroom tax’ though it is not a tax, merely an attempt to reduce the soaring benefits bill.

Your children will be expected to share bedrooms – if they are under 10 children of either gender must share, and if they are between 10 and 16 children of the same gender must share. If you are a separated parent and have been allowed an extra room for your children you will lose this if you are not the primary carer.