Case No: B5/2011/1390
Neutral Citation Number: [2011] EWCA Civ 1807
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE WORSTER)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 9 November 2011

Before:

CHANCELLOR OF THE HIGH COURT
LORD JUSTICE HOOPER
-and-
LADY JUSTICE RAFFERTY D.B.E.

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Between:

	FRIENDSHIP CARE & HOUSING ASSOCIATION
	
Respondent	
	- and -		
	
HAMEEDA BEGUM	

Appellant	

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(DAR Transcript of 
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Mr Nicol (instructed by Tyndallwoods Solicitors) appeared on behalf of the Appellant.

Mr Dewsberry (instructed by Shoosmiths Solicitors) appeared on behalf of the Respondent.

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Judgment

Lord Justice Hooper:   

1.	This is an appeal with permission of the trial judge, His Honour Judge Worster.

2.	The appellant and the first defendant, who has played no part in this appeal, were assured tenants of the respondent.  A four-bedroom house in Birmingham was let to them under a tenancy signed in 1995.  The landlord respondent to these proceedings obtained a possession order against the two defendants principally on the grounds of the first defendant's criminal activity.  The judge was asked to suspend the possession order but refused to do so.

3.	The relevant statutory provision in relation to suspension is section 85 of the Housing Act 1985.  That provides that on the making of an order for possession of a dwelling house, the court may stay or suspend the execution of the order or postpone the date of possession for such period or such periods as the court thinks fit.  The section also provides that on making such an order the court may impose such conditions as it thinks fit.

4.	The only challenge to the decision of the trial judge relates to his decision not to suspend pursuant to section 85.  There are two grounds of appeal.  It is submitted that the trial judge failed to give sufficient weight to the interests of the appellant's children.  Secondly, it is submitted that the judge acted irrationally in concluding that the order should not be suspended in the light of a condition proposed by the appellant that the first defendant not return to the property for a certain period.  In this court it has been suggested by the appellant that that would be a period of some two years.

5.	It is Mr Nicol's submission that the decision was irrational in one respect, namely the judge's conclusion that no such proposed condition was enforceable.  Mr Nicol conceded rightly that if the second ground failed then the first ground could not succeed, and for those reasons I shall start with the second ground.

6.	The test which the judge has to apply in deciding whether or not to suspend a possession or pursuant to section 85 has now been clearly set out in two cases: Manchester City Council v Higgins [2005] EWCA Civ 1423, [2006] HLR 14 and Sandwell NBC v Hensley [2007] EWCA Civ 1425, [2008] HLR 22.  The judge cited both of those authorities in paragraphs 68 and following of his judgment.  It is clear from those cases that the question of whether or not to suspend the execution of a possession order involves looking at the future.  There is no point suspending an order when the inevitable outcome will be a breach.  There must be a sound basis for the hope that the antisocial behaviour which has led to the making of the possession order will cease.  Put another way: is there cogent evidence which demonstrates a sound basis for the hope that the previous conduct will cease?

7.	The facts as found by the judge in so far as relevant to the issue under appeal are as follows.  The appellant, who was the second defendant, is the now 41-year-old mother of seven children.  She came to the United Kingdom in 1992 to join the first defendant who is her husband.  Her children are: S, who is now aged 23 and suffers with learning difficulties and is partially blind and deaf but we are told will be getting married next year; T, whose home has been with his grandfather for some time; MA, now aged 18; AM, now 16; H, aged 12; and K, aged nine; and A, aged two years.

8.	The first defendant is currently serving a four-and-a-half-year sentence for possession of Class A drugs with intent to supply.  He is a long‑term addict with previous drug related convictions.  Found in the house was not only the paraphernalia usually found upon searching a drug dealer's home or premises, but also a significant number of electrical items which the first defendant had taken from those to whom he was supplying drugs in return for those drugs.  In the words of the respondent, there was an Aladdin’s cave of stolen property, including a computer, camera, navigation systems and four laptop computers and seven flat screen televisions.  That gives one some idea of the level of dealing in which the first defendant was involved.

9.	The judge made the following findings which can be found in paragraph 64 of the judgment.  Firstly, he found that the first defendant had committed a series of serious offences in the property, namely the rented house, and in the locality of the property over a considerable period.  The second defendant, now the appellant, the judge found knew of her husband's criminal activities from 2004/2005.  She had done nothing to stop him.  The judge accepted that it would have been difficult for her but her approach to the case did not help her cause.  She showed no obvious remorse and had not been straightforward with the court about what she knew.

10.	The judge made a number of adverse credibility findings.  He found that T and the elder A had an involvement in drugs, although nowhere near on the scale of the first defendant.

11.	The judge found serious and persistent breaches of the tenancy agreement over a number of years.

12.	 The judge said that the landlord was entitled to have tenants who keep to the terms of their tenancies and rightly pointed out:

"There is a public interest in seeing that the terms of such tenancy agreements are fairly and effectively enforced."

13.	The judge concluded that the nature of the offences was such that they must have adversely affected the neighbourhood and those who lived there.  The house had become associated with drugs and drug dealing.  The judge reached that conclusion in part upon the basis of statements from anonymous residents about what was happening in the house.  There was an attack upon the accuracy of the material coming from the residents but the judge did not accept that challenge.  The residents had referred to gangs and had referred to people coming to the house.  The residents were in effect saying that the house was being used for dealing in drugs.  The judge pointed out that the direct evidence of drugs, paraphernalia, electrical goods and money being found at the house fitted in with the evidence of the residents and the judge concluded:

"...I am satisfied that the 1st Defendant's activities had a detrimental effect on the neighbourhood, bringing in undesirable people and making at least some of those who lived there more fearful for their safety."

14.	The judge went on to say in paragraph 65 that these were serious offences and that drug dealing in a residential neighbourhood has an insidious effect upon the area and the people who live there.

15.	The judge, dealing with the issue of whether to suspend the possession order, asked himself the question whether he could be satisfied that the first defendant would stay away upon release from his prison sometime in about May of next year.  The judge said this:

“76. That said, unless I can be reasonably satisfied that the 1st Defendant will stay away from the property on his release, the probability is that drugs will return to the property and the neighbourhood. I can have no confidence in what he says about staying off drugs. He is a long term heroin addict who has ignored the deterrence of imprisonment to carry on his dealing. He has come off drugs before in prison only to relapse 4-5 months later. He has used and dealt drugs from the property knowing that it was illegal and a serious breach of the tenancy, and that he was putting his and his family's home at risk. He seems not to have cared about that (or not cared sufficiently). Nor does he seem to have cared about the effect that his conduct had on those living in the neighbourhood. That is despite being sent to prison in 2004-5 and having the property searched on a number of occasions before his arrest in January 2010. At Mr Nicol's suggestion, he was prepared to give an undertaking to stay away from the property. His preference is to return to be with his family, but he says that has agreed with his wife that he will not do so if she does not want him to. He will find it very hard to stay away.

77. I cannot have any real confidence in the 2nd Defendant's ability to keep her husband away from the property if he decides to return, or in her ability to stop him taking or dealing drugs from there. She has been unable to stop this conduct in the past. It is suggested that she may now do so because the consequences of the breach of a condition to that effect are that she and her children will lose their home. I can see that might be a factor in her mind. But she has neither the
character nor the authority to stop him. It was not suggested that she would report him to the Police if he turned up in breach of his undertaking, or that she would give evidence against him if he were taking drugs. It is unrealistic to think that she would ever do such a thing. Not only that, she has persisted in a misleading account. The trust I can place in her word as to her future conduct is much affected by that.

78. Mr Nicol's argument was that I could be sufficiently confident that the 1st Defendant would stay away from the property. He submitted that the Police would be watching the property, as would the local residents, and as soon as they saw the 1st Defendant return, the Claimant would be able to apply to the Court for an outright order on the basis of a breach of condition, and to enforce the undertaking by way of committal.

79. The fact that none of the Residents are prepared to come to Court and give evidence at this stage makes a reliance upon their policing of this order both unrealistic and unfair on them. It may be that the Police would be concerned to keep a watch on the 1st Defendant on his release, given his history. But it is hardly a satisfactory basis for ‘hope’ to say that if there is a breach, the Police will catch him. For there to be a ‘sound basis for hope that the previous conduct will cease’ I must have some real confidence that the Defendants will abide by the suggested conditions and the undertaking willingly. I do not have that sort of confidence in them. I do not consider that the sanctions Mr Nicol suggests are likely to work. As Mr Dewsbury pointed out, the 1st Defendant has shown himself willing to break the law and risk custody in the past.  An undertaking (offered for one year following release) is not sufficient comfort.”

16.	The judge sent on to say that for the reasons that he gave in the paragraphs which I have just quoted, there is no "sound basis for hope that the previous conduct will cease".

17.	Mr Nicol submits to us, as he submitted to the judge, that a requirement upon the first defendant to stay away for two years could be very easily enforced.  He submitted that if the first defendant misbehaved then the landlord would inevitably get to hear about it from someone.  And the landlord having heard about it, so Mr Nicol submits, he would then be in a position to take further action in court to bring the tenancy to a complete halt.

18.	In my view, in the light of what the judge said in the paragraphs which I have cited, it is quite impossible to say that the judge reached a conclusion which he was not entitled to reach.  That in my view disposes of the appeal but I shall say something about the first ground.

19.	Mr Nicol realise particularly on a passage in the judgment of Baroness Hale in ZH (Tanzania) [2011] UKSC 4, [2011] 2 WLR 148.  I note that that case concerned the removal of children to another country.  Mr Nicol relies on a passage in paragraph 32:
 
"In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations."

20.	It is submitted that if the judge had applied that test he would have suspended the order.  Alternatively, it is submitted that the matter should be remitted to the court below so that this passage in Baroness Hale's judgment can be applied.

21.	In my mind, the answer to this is very simple.  The judge gave full weight to the interests of the children, particularly the older child and the four younger children.  Right from the start he acknowledged that the difficulty here was the effect on the innocent children.  He said this in paragraph 5:

"Were this case only about the conduct of the Defendants and the consequences of a possession order for them, it would be relatively simple. But, as Mr Dewsbury acknowledged from the outset, there are ‘innocents’ who would be seriously affected by the order he seeks."

The judge then set out in detail the evidence relating to these children, including in the case of the eldest child his impairment and in the case of the daughter, the 16 year old daughter, he went into details about her schooling.

22.	The judge returned to this topic at paragraph 65 where he said this, following his conclusion that it was reasonable to make a possession order:

"What has caused me to pause more than anything is the potential effect on the ‘innocent’ children, and I recognise that for them the making of a possession order carries with it a substantial degree of unfairness, for they are not in any way responsible for the behaviour that has brought the matter to this point."

23.	The judge returns to the issue in paragraph 80, where he said:

"I approached this question [namely whether to suspend the order] with the concerns I have expressed about Shakir and the children very much in mind. An outright order is harsh on them. But a suspended order is unlikely to work. An outright order is a proportionate response to the conduct proved ‘in the straightforward sense that nothing less will do’."

He then went on to refer particularly to the serious nature of the offending, the adverse impact on the neighbourhood and the importance that this house was not to be used again by the first defendant for drug dealing.

24.	He went on to say that it was in the public interest that necessary and reasonable conditions in tenancy agreements of occupiers of social housing should be enforced fairly and effectively.  In my view it is not arguable that the judge did not take the interests of the children into account as a primary consideration.

25.	Finally, it is submitted that the judge should have gone "an extra mile" in order to find out what it was that would happen to the children.  He acknowledged in one passage that he did not know what would happen to them.  If it is to be suggested by a defendant in litigation of this kind that the effect of an immediate possession order would be to make the children homeless, then the evidence to support that must be put before the court.  Mr Nicol seemed to be suggesting that somehow or other the judge ought to have made enquiries as to what was going to happen to the children.

26.	In my view, absent evidence from the defendants to show that what was going to happen to the children would seriously interfere with their welfare, then the judge is entitled to assume that the local authority are going to comply with their numerous statutory and regulatory requirements which impose upon them duties towards children.  For these reasons I would dismiss this appeal.

Chancellor of the High Court:  

27.	 I agree.

Lord Justice Rafferty:   

28.	 I also agree.

Order: Appeal dismissed