Mohamoud v Royal Borough of Kensington and Chelsea

Section 11(2) of the Children Act 2004 requires public authorities to exercise their existing functions with regard to the need to safeguard and promote children’s welfare. It is not confined to strategic arrangements. However, it does not alter the nature or scope of the statutory function concerned.

In the homelessness scheme under Part VII of the Housing Act 1996, the duty does not require a pre-eviction assessment of every child whose parent occupies temporary accommodation. Children’s interests are addressed through the statutory scheme and, where relevant, the proportionality assessment under article 8. An assessment is required where a child is in need, not merely because possession is sought.

These conjoined appeals concerned mothers who had been provided with temporary accommodation after applying as homeless persons with dependent children. Each local authority decided that the mother was intentionally homeless. It then ended the temporary accommodation and obtained a county court possession order.

The appellants contended that the authorities had failed to comply with section 11 of the Children Act 2004. They submitted that the duty required an assessment of each child’s needs under the Children Act 1989 before service of a notice to quit or commencement of possession proceedings.

Deputy District Judge Smith at the County Court at Central London and District Judge Hugman at the County Court at Wandsworth rejected the defences. The sole pursued issue on appeal was whether section 11 required such an assessment and rendered the possession orders unlawful.

1. Appeals dismissed. Lady Justice Sharp, with whom Lady Justice Black and Lord Justice Longmore agreed, held that section 11(2) of the Children Act 2004 is not a free-standing duty detached from the statutory function being exercised.

2. Agreeing with the analysis in [2012] 1 All ER 953, the court held that the duty reaches the manner in which an individual function is exercised; it is not confined to training, information or other strategic arrangements. Its practical impact nevertheless depends on the function and circumstances. It neither redefines the relevant function nor authorises a decision-maker to rewrite the governing statute.

3. The relevant functions were those under Part VII of the Housing Act 1996. The statutory scheme already gives children of homeless applicants priority at the outset and provides a link to children’s services when a parent is intentionally homeless. Section 11 did not impose a further, universal duty to conduct a Children Act 1989 assessment before a notice to quit was served or possession proceedings were brought. Such a construction would undermine the temporary character of the accommodation and impose burdensome assessments where no child-specific need had been identified.

4. The court also held that section 11 adds no material substance to the article 8 proportionality assessment. A local authority and court must act compatibly with article 8, and a child’s best interests are a primary, though not necessarily determinative, consideration. The statutory procedures allowed the appellants to identify exceptional facts capable of making eviction disproportionate. They identified none, and the dismissal of their article 8 defences was not appealed.

5. In any event, even if an assessment duty had existed, the court found no link between its alleged breach and either possession order. The absence of an assessment would therefore have afforded no defence on these facts.

• Court of Appeal (Civil Division): By [2015] EWCA Civ 780, dismissed the conjoined appeals and upheld both possession orders.
• County Court at Central London: Deputy District Judge Smith made a possession order in favour of the Royal Borough of Kensington and Chelsea against Ms Mohamoud.
• County Court at Wandsworth: District Judge Hugman made a possession order in favour of the London Borough of Wandsworth against Ms Saleem.