England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Claim No: CR12D01606 Royal Courts of Justice Strand, London WC2A 2LL
		10 June 2013

MR JUSTICE PETER JACKSON:

1.  This is an application issued on 6 March 2013 by Mr Joseph Muema, in which he ultimately seeks an order under section 37(2)(b) of the Matrimonial Causes Act 1973 in order to set aside a notice to quit that was signed by Mrs Kerry Muema, his estranged wife, on 9 January 2012.  Unless that application succeeds, at least to the extent of persuading this court to give directions for it to continue, the consequence for Mr Muema is inevitably that he will be evicted from his present home.  That is a home in which he has lived with some interruption since 2006, and where he now resides, caring apparently for some 40 per cent of the time for the two children of his marriage to Mrs Muema: a girl aged 11 and a boy aged 8. 
2.  I will come to the legal arguments that must be considered in a moment, but essentially, in a courteous and able argument, Mr Muema's point is that he and his children need this property, and that it will be a backward step, for the children in particular, if they cannot remain in it. I fully understand and sympathise with that point of view.  It is one of the many unhappy consequences of divorce that in many cases there is not enough to go around.
3.  For a full account of the history of this matter one has only to look to the transcript of a judgment given in the Croydon County Court on 9 August 2012 by District Judge Major. I have read that judgment with admiration for its clarity and thoroughness. At that time the competing points of view were both strongly and legally presented, and a number of grounds were argued on behalf of Mr Muema in favour of a further suspension of a warrant of possession.  The District Judge dealt with six of these, reaching the individual and collective conclusion that the application could not succeed.  It was in relation to the seventh ground that she was unable to express a view, on the basis that the argument on that ground would, if it were pursued, have to be raised in the High Court. It had not been raised, and accordingly was not of avail to Mr Muema at that stage.  He raises it now.
4.  I will give an abbreviated account of the background.  Mr and Mrs Muema married in 2001. They have the two children I have referred to.  In January 2006 the Council (as I will call it) entered into a tenancy agreement with them jointly for the occupation of a 3-bedroom maisonette at 137 Northwall, Field Way in New Addington. This was a weekly tenancy. The marriage between the parents fell into difficulties, and in June 2009 Mrs Muema vacated the property with the children.  In October 2009 an exclusion order was made requiring Mr Muema to move out.  In January 2010 the first possession order was made in relation to rent arrears amounting to almost £600, but it was suspended on conventional terms. These were not complied with, and in August 2010 a further warrant was again suspended. Those terms were not complied with, and in November 2010 the warrant was suspended again. In July 2011 Mrs Muema wished to move, and she was offered homeless accommodation.  In January 2012 she signed a notice to quit. There was a factual dispute between Mr and Mrs Muema, on the one hand, and the Council, on the other, about whether this was an effective notice to quit. That issue was determined in favour of the Council by the district judge in August. Following Mrs Muema's departure from the property, Mr Muema returned to it, and in May 2012 in family proceedings a shared residence order was made, the children spending about 5 nights a fortnight with their father in term time, together with contact in the holidays.  In August 2008 Mr Muema began financial proceedings directed towards this tenancy, which is the only asset of value.
5.  On 9 August 2012, as I have said, his application came before District Judge Major and was rejected. He appealed. The appeal was listed in December, but not heard, and was finally heard by the circuit judge on 23 March, when it was dismissed.
6.  In the meantime, Mr Muema, who was then legally represented, launched the application that is now before me.  It was immediately transferred to this court, and it came before Holman J on 21 March.  He expressed the view that the application was unlikely to succeed, but he was not prepared to determine it there and then.  He put it over to today. On the following day, Mr Muema's county court appeal failed. 
7.  At the outset of this application, I heard and refused an application by Mr Muema for an adjournment, based upon his unrepresented status. I was not prepared to adjourn the proceedings. Mr Muema had legal representation up until 18 April, when he dispensed with his solicitors with a view to instructing others.  He has not succeeded in doing so, but the arguments that he might make are encapsulated in a position statement for the hearing before Holman J, which I have read and considered alongside Mr Muema's oral presentation. I am satisfied overall that despite the disparity in representation today, Mr and Mrs Muema have had a fair hearing process in relation to these issues.
8.  I take the question for the court in the way that it is described by the District Judge at paragraph 37 of her judgment in these terms:

"It is argued that there is incompatibility between Article 8 and the rule in Newlon Housing v Alsulaimen, a 1999 case."

I interpolate that this is a decision of the House of Lords, reported at [1999] 1 AC 313.  To continue:

"The rule in that case is that a notice to quit is not a disposition in relation to section 37(2)(b) of the Matrimonial Causes Act 1973, i.e. the destructive effect of the notice to quit ending the tenancy cannot be rectified by the divorce court.  It is argued that it is seriously arguable that that is inconsistent with Article 8 and that the service and effect of the notice to quit cannot be revisited."

9.  Article 8 of the European Convention on Human Rights and Fundamental Freedoms provides protection in the form of a right of respect for a person's private and family life and his home.  That protection finds its way into the housing arena by giving a tenant, including a joint tenant, the opportunity to argue that eviction would be disproportionate. That argument in this case was carefully considered by the District Judge, who found in favour of the Council in that respect.  It no doubt implicitly underpinned the repeated suspensions of a possession order that was first made in January 2010, but is currently suspended up to 24 June 2013 to await this decision, so there has been a suspension of 3½ years.
10.  The common law position is contained in the decision in the case of Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478. In that case it was established that a joint tenancy between a landlord and two tenants continues only for so long as all three will it.  The case of Newlon Housing Trust v Alsulaimen [1999] 1 AC 313 pursues this in relation to section 37 proceedings by concluding, in effect, that the surrender of the service of a notice to quit by one joint tenant does not amount to a disposition which can be set aside by the family court.  The argument presented by and on behalf of Mr Muema is that that conclusion cannot survive the introduction of the European Convention by means of the Human Rights Act 1988 in the year 2000. In effect, it is argued that reference to Article 8 would have led the House of Lords, or nowadays the Supreme Court, to conclude that the common law position must be revisited, and that the service of a notice to quit considered as a disposition that is available to the Family Court to set aside.
11.  There is no direct reported authority on this point, which to me is significant.  It is now 12 or 13 years since the implementation of the Human Rights Act, and during this period our housing legislation and practice has been subjected to intense examination in a number of respects in the light of Convention jurisprudence.  It would, to my mind, be surprising if what is a fairly common state of affairs, such as the present, had continued for so long if it was incompatible with the Convention.
12.  Be that as it may, I approach the matter afresh, and look to what assistance there undoubtedly is. This is best seen in a decision of the Court of Appeal in the case of Sims v Dacorum Borough Council [2013] EWCA (Civ) 12. That was promulgated on 24 January of this year, accordingly falling during the course of these proceedings.  I am afraid that to a judge at my level the decision in Sims is anything but encouraging for Mr Muema. It roundly concluded that the fundamental decision in Monk was not in conflict with the Convention, either with regard to Article 8 or Article 1 of the First Protocol. Indeed, neither was in the judgment of the Court of Appeal engaged at all.  Centrally for the purpose of these proceedings, Mummery LJ at paragraph 34 rejected the argument that the tenant's enjoyment of his possessions was being interfered with.  He in effect characterised the argument on behalf of the tenant as supposing a right to turn one tenancy into two.  I accept the rationale of that decision and conclude that it is not correct to assert that the decision in Alsulaimen is no longer good law. The overall framework enables tenants to have their rights under Article 8 respected during the course of the process of possession proceedings. It is neither necessary nor appropriate for that right to extend to the scope of section 37 applications infFamily proceedings.
13.  In that I have reached this conclusion, following a hearing at which the tenant, Mr Muema, has represented himself, I will move to a further stage and consider what the conclusion would be, were I wrong and had the court power to exercise under section 37.
14.  Addressing, on a broad view, the merits of the matter, I cannot see any arguable case for the court exercising such a power in favour of Mr Muema. In effect, there has been one tenancy to be allocated to this family by the Council, and success by Mr Muema in setting aside the notice to quit would only be to the disadvantage of Mrs Muema. I accept the strength of the argument made by the Council that it is essentially for it to exercise its distributive function in relation to its housing stock, and that, hard-headed though it may seem, it is entitled to the view that other families have greater need of this property than this family.  Further, it is evident that once the family is evicted, the children will continue to have a roof over their heads with their mother, until such time as their father can provide one for them also. 
15.  The length of time that it has taken for this conclusion to be reached, not only the period up to the decision of the District Judge last August but, most relevantly, the period since, has given Mr Muema and the children the advantage of occupancy, but I am afraid that that will now come to an end.  I shall, for the reasons, I have given, dismiss the application brought by Mr Muema dated 6 March 2013 for an order under section 37.