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Section 11 Children Act 2004 - the possibility of a defence...

Davis v Hertfordshire County Council [2018] EWCA Civ 379 provides welcome confirmation that a failure by a local authority to have regard to the need to safeguard and promote the welfare of children might, in principle, provide a defence to a claim for possession.  There have been few  cases recently in which it has been suggested that, in the absence of any private law right to remain, a public law breach of section 11 (or indeed any duty to assess) might never provide such a defence - see e.g. Davis at first instance, but also Kensington and Chelsea RLBC v Mohamoud [2015] EWCA Civ 780 at §70).  But, says the Court of Appeal in Davis, Gateway (b) is wider than that.  No relief for Mr Davis though, 

"...the court made no finding as to the children having any unusual or compelling circumstances beyond the normal and understandable difficulties arising from the uncertainty over the future of their home. Those difficulties however, unfortunate as they were, could not provide a justification for allowing this family with no private law right to remain in the bungalow, to stay there after the ending of the service occupancy, even on a temporary basis; or for depriving the respondent of its otherwise unanswerable property rights. There was nothing in other words that supported even faintly, even at the pleadings stage, a case that any consideration of the position of the children when the notice to quit was served would have made any difference to the outcome of the action for possession. In the light of these matters the section 11 issue might have been disposed of on a summary basis"


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