article 8 bedroom tax challenge where no overnight stay, yet

Anyone any thoughts on this?

client has been fighting for access to his 3 years old son for last year or so, has currently got supervised contact once per fortnight. He wishes to step up this contact with the idea that he will get contact at his home for most weekends, holidays, etc., in future. He has been advised that this may take about 12 months to achieve if all goes well.

He has 2 bedrooms and is bedroom taxed. 6 month DHP award initially and in process of reapplying.

What chance of an Article 8 challenge on the basis that were he be made to downsize to a one bed house it would negatively affect his chances at the family court of getting overnight contact in future?

There is some suggestion, although nothing in writing, that 2 bed property was offered to him on basis that he would have son staying with him in future.

I believe there is a JR pending on this exact point.  While the case law to date on shared custody is not helpful at all to people in your client’s position, the glimmer of hope is that Article 8 and HB present a unique sub-issue that has not previously been properly aired in the Humphreys line of cases which have all tended to focus on A1P1.

Unfortunately I think the prospects are bleak generally, but some lucky individuals have managed to get an A8 appeal upheld by the FtT either in ignorance or defiance of the existing body of case law.  I don’t think it will last - this JR case will probably close that avenue off copmpletely.  Meanwhile there is nothing to lose from giving it a shot at the FtT

Thanks HB. Do you, or any other learned Rightsnetters, have any idea of which case this JR is about or where any info about it can be found?

Liberty have got one going but I don’t know the details.

https://www.liberty-human-rights.org.uk/news/press-releases/liberty-moves-forward-‘bedroom-tax’-legal-challenge

Thanks Nevip. From what I can make out these are already ‘shared care’ cases whereas Anorak’s post suggested something more akin to my client’s situation was in the pipeline

As HB Anorak says, Article 8 has not been properly explored in the caselaw decisions up to now.  Also it sounds as if the family court may be issuing some kind of binding decision.  I don’t think the whole question of how this decision by another court which is bound to put “the interests of the child paramount” can be taken into account has been explored.  Ruth

Thanks Ruth, but I don’t understand the last sentence. Could you elucidate for me please?

Hi Billy, cant say I have gone into it properly myself, but the two Children Acts both place the interests of the child paramount. The most recent one places that duty on Local Authorities as well. The Family Court will make a decision on the interests of the child. We therefore would have a situation where the Local Authority or a tribunal might be making a decision which thwarts the decision of the family court.  There is a decision somewhere to do with a father with shared care for children presenting as homeless to a local authority. The decision is ambiguous - as far as I can see it said that the Family Court should have asked for the opinion of the local authority before they made their own decision but the point I am making is that there was a recognition that the Family court decision put some kind of duty on the Local Authority to house the father suitably. I will look it up and attach it.  Ruth

Thanks Ruth, that’s great