This case is often cited by counsel for local authorities as authority for the proposition that the courts should take a 'benevolent' approach when determining the sufficiency of reasons given on a review under s 202, and to 'not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach'. This is on the basis that the staff who write the decision letters and keep records are not lawyers and as such cannot be expected to express themselves as clearly as they might otherwise do. Using this authority counsel then and re-write the decision so that it means something which cannot be challenged. As Baroness Hale made clear, however, the reasons must be adequate to fulfil their basic function. An example of counsel doing this can be seen at paragraph 71 of the judgment in YR, R (On the Application Of) v London Borough of Lambeth (2022) where there was no record of a council having assessed the needs of the children of a family but counsel invited the judge to infer that they had done so anyway. At paragraph 83 the Judge declined to accept the invitation.
The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing.
Held: The authority’s appeal succeeded. A housing authority when making an assessment had wider responsibilities than does a court considering residence. The criteria look similar but not the same. ‘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 this question, it 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.’ The court of appeal had been incorrect to say that resources were not an issue for the authority to consider, and nor should it intervene in children applications.
Baroness Hale said that when making the shared residence order the court should have included among its considerations the residence which either party could provide. In the circumstances where as here a party could not provide the residence facility, a shared residence order should not have been made: ‘Family court orders are meant to provide practical solutions to the practical problems faced by separating families. They are not meant to be aspirational statements of what would be for the best in some ideal world which has little prospect of realisation. 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. Nor can they order local authorities or other public agencies to provide particular services unless there is a specific power to do so. ‘