The exercise of judicial discretion in rent arrears cases - Sheffield ...

are trying to deal with the particular problem of them not paying the rent, and other
people who would be good tenants being in the waiting list. And so I’m sure that that
subconsciously or otherwise operates on the DJ’s mind.” (DJ I)
One judge concluded that he would never evict a woman with children explaining that: “you
know…I...I just couldn’t bring myself to do it, I don’t think, quite honestly” (DJ I). Others tried
to balance the interests of the landlord with the need to prevent hardship and homelessness:
“You have make the decision but I think most people instinctively would prefer not to
if they, if they can and if there’s any way…particularly…in a scenario like this, if
there’s any way of not making the order then, …not turfing a woman out on the street
then you would try and do so.” (DJ M)
Judges clearly found it hard to deal with possession cases involving children. As the above
excerpts from interviews illustrate, it was not uncommon for judges to explain their hesitation
to making outright orders for possession in emotive terms reflecting on their personal
experience and view of the world (see p. 91 for further discussion of the impact of judges’
personal reactions to possession).
The family make up of the defendant however, was not universally seen as being a critical
factor in determining outcomes. While some judges said they would always seek out an
opportunity to provide a defendant with dependant children with one last chance, others
thought that the family make up of defendants was irrelevant to the decision-making
process. A number of judges expressed the view that outright possession orders were
valuable not only to protect the landlord’s interests but also to give a clear message to
defendants that their behaviour would not be tolerated. These two approaches representing
either ends of a continuum are graphically illustrated by the following responses to Scenario
2 (above).
DJ W DJ V
“If you asked me to explain precisely in a
cogent judicial fashion why not [evict], I
would find it quite difficult. But I think it
is…that here is a single mother with two
children who’s trying to keep body and soul
together, and at this juncture it would not be
reasonable to make a possession order,
and I would want to adjourn it at this
particular instance and see how she got
on.”
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“Hasn’t paid anything for several weeks,
doesn’t bother to turn up, no reply form, no
contact…and then she’d be running in here
with the warrant, when she gets notice of
the bailiffs going round. And it’d be picked
up on a warrant. That’s [outright
possession order] the only way you can
make people like that do something about
it.”
Further discussion of the impact of children at the warrant stage of proceedings is provided
in Chapter 8.