Possession Order

March 8th, 2018

In Davies v Hertfordshire County Council (2018) EWCA Civ 379 the Court of Appeal considered whether a failure by the Council to comply with its statutory duties under Section 11 of the Children Act 2004 could provide a defence to a claim for possession.  Sharp LJ said:-

“17.    The obligation imposed on those who are subject to the statutory duty under section 11 is not confined to the making of strategic arrangements: it is to ensure that decisions affecting children have regard to the need to safeguard them and promote their welfare. That does not mean however that the particular function being carried out is redefined, and the reach or impact of the section 11(2) duty is qualified both by the nature of the function being carried out, and what the particular circumstances require: …”

Sharp LJ said (paragraph 21) that in principle it was open to someone in the position of the appellant to raise a Section 11 defence to possession proceedings brought by a local authority, notwithstanding the lack of a private law right to remain in possession, in the same way that an ECHR defence can be raised. However (paragraph 30), it does not follow that the defence will succeed.  There must be relevance on the facts to the substantive matter at issue in the proceedings, namely whether an order for possession should be made or not.  David Richards J and Davis J agreed.

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