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It is time to reform the duty on councils to house children, says Russell Campbell, head of legal services at Shelter.

Recent court decisions have put in doubt the effectiveness of a vital safety net in the Children Act 1989. They have also led to concerns that 35 years after the Ken Loach drama Cathy Come Home, families are again threatened with separation and their children being taken into care.

Two sections of the act have been very useful in cases where families lose their accommodation or find that they are in accommodation that cannot be lived in safely. Section 17 defines when children are "in need" and enables social services authorities to provide services. Section 20 is an express accommodation duty where a homeless child in need must be housed if he or she is lost, abandoned or cannot be housed by a person who has been caring for him.

The usual safety net in homelessness cases is, of course, the local housing authority. However, cases frequently arise in practice where that authority cannot help, because the parent or adult caring for the child became homeless intentionally, or where the family is already housed, albeit in unsatisfactory accommodation.

In cases in the 1990s, steps were taken by some social services departments to provide help. This ranged from giving advice to the provision of accommodation. These services were provided "to promote the upbringing of children by their families" under section 17.

But, two recent cases have cast doubt upon these measures. They show that social services may lawfully decline to provide assistance with accommodation altogether, unless accommodation is provided to the child only under section 20 of the act. In the case G v Barnet, the social services department offered to help with fares to enable the family to travel back to the Netherlands (from where they had come) or to house the child alone.

In the A v Lambeth case, the court considered that nothing in section 17 created an enforceable duty on social services to help with housing. In effect, the two cases show that separating children from their parents, where a family is homeless, is lawful, with the effect that only the child is housed. This is extremely hard to reconcile with promoting the upbringing of children by their families.

Why not amend section 17, so that assistance with housing could be provided in appropriate cases? Similarly, there seems no reason in principle why section 20 of the act could not be broadened, so that a child may be housed with their carer, rather than separately.