Local authorities are obliged by the Children Act 2004 to safeguard and promote the welfare of children in almost everything they do. In a ground-breaking decision, the Court of Appeal has ruled that such duties extend even to councils exercising private law rights as property owners.
The case concerned a former school caretaker who had stayed on as a trespasser in his tied home after he was dismissed for gross misconduct. He suffered severe back problems that amounted to a disability and the property was also occupied by his wife and four children. It was said that, if evicted, the family would be threatened by street homelessness.
After the council that owned the bungalow launched proceedings, a judge found that it had given no thought at all to the presence of children on the premises. In granting the possession order sought, however, she noted that the council was acting as a property owner, not as a public housing authority. In those circumstances, the public law duties that the council owed in respect of the children of the family under Section 11 of the Act provided no defence to a private law claim for possession.
In ruling on the former caretaker’s challenge to that ruling, the Court found that the judge had erred on that point and that, as a matter of principle, it was permissible to raise public law arguments as a defence to private law possession actions. The council had breached the relevant duties on the evidence and that was a matter on which the former caretaker was entitled to rely.
In dismissing his appeal, however, the Court noted that, although it was unfortunate that his children had had to endure uncertainty over the future of their home, there was nothing otherwise unusual or compelling about their situation. The council’s right to possession of the bungalow was unanswerable and, even had it met its duty under the Act, the outcome for the family would inevitably have been the same.