EWCA Civ 379, 6 March 2018
Davis, Sharp, and David Richards LJJ
The Court of Appeal has held that a local authority’s failure to comply with its duty to consider the best interests of children under s.11, Children Act 2004, may found a defence to a claim for possession brought by a local authority.
The appellant was a school-caretaker who occupied a property as a service occupier from January 2003. He lived in that accommodation with his wife and four children. His employment was terminated on 12 June 2015, whereupon he became a trespasser. On 10 September 2015, the local authority brought a claim for possession in the County Court. The matter was transferred to the Queen’s Bench Division of the High Court.
Laing J. held, inter alia, that failure to comply with the duties under s.11, Children Act 2004 (best interests of the children), and/or s.149 Equality Act 2010 (public sector equality duty), could not found a defence to a claim for possession unless linked to an underlying private law right. A possession order was granted:  EWHC 1488 (QB);  H.L.R. 33; e-flash, 21 June 2017.
Thirwall LJ granted permission to appeal on whether the authority’s failure to comply with the statutory duties contained in s.11, Children Act 2004, and/or s.149, Equality Act 2010, could amount to a defence to the claim for possession. The Court of Appeal declined to hear argument on s.149, Equality Act 2010, and proceeded only in relation to s.11, Children Act 2004.
Sharp LJ, giving the lead judgment, held that the judge had erred because “in principle it is open to someone in the position of this 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”: . On the facts of the case, however, in particular there being no unusual or compelling circumstances relating to the children, even had the authority considered their s.11, Children Act 2004, duty, the outcome would have been the same.