The situation of a parent who has been assessed as capable of caring for their child during care proceedings, but who needs housing before they can resume care is a familiar one for lawyers and social workers dealing with care cases.
Universally, housing authorities do not recognise that a parent needs accommodation of adequate size before the child can be reunified with them. In the past, housing authorities insisted that a parent had physical care of their child and could provide a Residence Order (now a Child Arrangements Order would be required) before they would recognise the need for housing. However, the parent’s priority level would not necessarily be raised in this situation. This often meant that a child who should have been with their parent could not stay in care, but had no home to go to with their parent either.
Letters of support from social workers and the disclosure of a court order, with a preamble indicating that the court was looking to endorse a plan to place the child back in the care of the parents, often appeared to have little effect on the stance that housing authorities took. For those parents who had accommodation that was obviously too small, the child would sometimes be reunified with the parent in any case, to see if overcrowding would force the situation and make the housing authority act. The process is reactive in nature and even then the reaction is slow. The courts will often admit defeat and a child may just remain in local authority care until something happens.
Re P: facts
The frustration with this situation was acutely demonstrated by HHJ Atkinson in Re P (A child: Use of s.20 CA 1989)  EWFC 775, which were care proceedings brought by the London Borough of Redbridge (LBR). The Royal Borough of Greenwich (RBG) housing authority, where the father and the paternal grandfather (with whom the child had resided before going into foster care a second time) lived, was heavily criticised for its firm stance that the family could not have higher priority status because the child was not physically in his parents’ care. HHJ Atkinson valiantly put a high level of judicial pressure onto RBG by disclosing the court bundle, directing a statement and threatening to summon the director to attend court for questioning. As the postscript to the judgment reveals, all of this pressure had very little effect for some time and required more court attendances to resolve the problem.
Fact finding on “bad faith”?
The curious part of the judgment is whether there was any legal basis for how HHJ Atkinson dealt with the situation after this judgment. The judgment states that a hearing was set up to essentially carry out a fact finding exercise about whether RBG’s housing and children services departments had been and continued to be intentionally obstructive, or as HHJ Atkinson put it, whether there was “any bad faith”.
The issues in the case, namely whether the Threshold Criteria under section 31(2) of the Children Act 1989 were met, had been determined by the parties agreeing the content of a Threshold Document. The welfare issue had essentially been determined with a sensible care plan that was eventually formulated and endorsed by the judge. The child had to be reunified with his parents under a transition plan once the parents had housing. There would need to be a certain level of monitoring and support under a Supervision Order for twelve months.
There can be no difficulty with the court requiring further information about the housing situation in order to inform the court of the support available once the case ends. This type of court direction is expected in such cases and in line with Ryder LJ’s judgment in W (A child) v Neath Port Talbot County Borough Council  EWCA Civ 1227 (see Legal update, Court directs local authority to file evidence and care plans consistent with the court’s finding of parental risk (Court of Appeal)). However, the direction for a statement was made directly to RBG’s housing department, rather than requiring the LBR to obtain and file the statement. It was therefore a third party direction (there is no mention of RBG being joined as a party prior to the date of the judgment) and possibly unenforceable. The purpose of a fact finding hearing on the existence of “bad faith” appears to go beyond the court’s remit within the context of care proceedings.
Other possible actions
There is no mention of any application for judicial review of RBG’s decision to not prioritise this family and provide adequate housing, which would have justified an exploration of RBG’s intentions. It is possible that an application for judicial review would have been more effective with this judgment in hand, to illustrate the irrational and unreasonable nature of the decisions made. The possible orders and costs allowed in judicial review could have compelled more satisfactory action. HHJ Atkinson expressed strong feelings about RBG’s lack of reaction and assistance with this case and came close to making findings about the assertions made by the Symbol outreach worker about RBG’s negative and obstructive response to her enquiries. There was a question mark raised over whether the judge could conduct a fact finding hearing that would be viewed as unbiased. The postscript to the judgment is clear that the fact finding exercise did not take place due to RBG’s housing department’s indication that accommodation had been found. The purpose of the hearing would have been to name and shame RBG and would have paved the way for the parents to make a human rights claim, which can be made during the course of care proceedings.
It is interesting that LBR did not appear to use its power to request assistance from RBG as housing authority under section 27 of the Children Act 1989. This would have been possible as the request would be made to a separate authority, unlike R (C1 and C2) v London Borough of Hackney  EWHC 3670 Admin (see Legal update, Children’s Services and Housing Authority in a unitary authority are one local authority (High Court)). The ultimate result may have been the same, but this would have given a two-pronged approach to getting the accommodation situation resolved quicker.
Unfortunately the case does not make clear how this problem could be solved quickly in the future. Practitioners may have to continue to be frustrated in the meanwhile.