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Occupation Orders: Are we there yet?

Kevin Gordon, Pupil Barrister, Coram Chambers explores the courts’ developing approach to the application and granting of occupation orders under section33 (6) and (7) of the Family Law Act 1996 as an updated summary guide to practitioners.

Kevin Gordon, Pupil Barrister, Coram Chambers

Occupation orders are used to regulate the occupation of the family home, primarily because of domestic violence or a tempestuous relationship that makes cohabitation untenable. Occupation orders are famously described as draconian because they are orders that override proprietary rights and should only be justified in exceptional circumstances: Chalmers v Johns [1999] 1 FLR 392.      

The statutory framework
Section 33(1) Family Law Act 1996 enables the applicant to make an application for an occupation order, if

a. a person ("the person entitled") —

i. is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, or

ii. has home rights in relation to a dwelling-house, and

b. the dwelling-house —

i. is or at any time has been the home of the person entitled and of another person with whom he is associated, or

ii. was at any time intended by the person entitled and any such other person to be their home,

Under subsection (3), an order under this section enables the court to –

a. enforce the applicant's entitlement to remain in occupation as against the other person ("the respondent");

b. require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;

c. regulate the occupation of the dwelling-house by either or both parties;

d. if the respondent is entitled as mentioned in subsection (1)(a)(i), prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling-house;

e. if the respondent has home rights in relation to the dwelling-house and the applicant is the other spouse or civil partner, restrict or terminate those rights;

f. require the respondent to leave the dwelling-house or part of the dwelling-house; or

g. exclude the respondent from a defined area in which the dwelling-house is included.

The court's discretionary powers are governed by section 33(6) which states that '[i]n deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court shall have regard to all the circumstances including—

a. the housing needs and housing resources of each of the parties and of any relevant child;

b. the financial resources of each of the parties;

c. the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and

d. the conduct of the parties in relation to each other and otherwise.

Subsection (7), 'balance of harm test', is designed to cater for an altogether more extreme situation, where '[i]f it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears to it that—

a. the respondent or any relevant child is likely to suffer significant harm if the order is made; and

b. the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.

The kind of harm envisioned by the statute under S33(7) goes beyond that which children 'suffer' when a marriage breaks down. The significant harm at s33(7)(a) is of course the threshold for local authority intervention in care and supervision cases, that is 'the child concerned is suffering, or is likely to suffer, significant harm; and that the harm, or likelihood of harm, is attributable to  the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him' (section 31 Children Act 1989): Re L (Children) (Occupation order: absence of domestic violence) [2012] EWCA Civ 721.  (see definition of harm s.31(9) CA 1989).

Case law guidance and clarification 

Chalmers v Johns [1999] 1 FLR 392
Chalmers v Johns clarified the approach to be taken when dealing with applications under section 33(6) and (7). Thorpe LJ, giving the leading judgment, emphasized that the first step is for the court to consider whether the evidence establishes that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order is not made.  The possible outcomes then become:

a. If the court answers that question in the affirmative, then it knows that it must make the order unless balancing one harm against the other, the harm to the respondent or the child is likely to be as great: 'Balance of Harm test'.   

b. If the court answers that question in the negative, then it enters the discretionary regime provided by subsection (6) and must exercise a broad discretion having regards to all the circumstances of the case, particularly those factors set out in the statutory checklist within subparagraphs (a) to (d) inclusive  (importantly, Aikens LJ adds that all the circumstances of the case are not limited to those specified in paragraphs (a) to (d) of s.33(6): Re L (Children) (Occupation Order: absence of domestic violence)): 'Discretionary test'. 

The courts remain alive to the draconian nature of an occupation order and urge caution in the making of a definitive order at an interlocutory stage with a final hearing imminent. Whilst that may be the intended bench mark, there will be cases where the character of the violence or risk of violence and the harm to the victim or the risk of harm to the victim is such that the draconian order must be made: must be made immediately and must be made at the earliest interlocutory stage as echoed by Black LJ. However, it remained unclear whether the violence or harm that Black LJ spoke of was restricted only to physical violence. This is a point which she clarified in a later case.   

G v G (Occupation Order) [2000] 3 FCR 53
G v G built on the foundation of Chalmers and goes further to elucidate what harm attributable to conduct means. In answer to that question, Thorpe LJ leaves no doubt that 'the court's concentration must be upon the effect of conduct rather than on the intention of the doer. Whether misconduct is intentional or unintentional is not the question. An applicant under s 33 is entitled to protection from unjustifiable conduct that causes harm to her or the children of the family. The effect is what the judge must assess. Tiny wounds may be inflicted with great malice: great blows may be struck unintentionally. Of course, lack of intent might support a plea of accidental injury. But where something is not done accidentally it is not to be dismissed on the grounds that it was not done deliberately'. In order words, the court needs to look to the impact or effect of that conduct rather than what the intention might be.

His lordship went on to say that 'this was not a case in which the wife had suffered any violence at the hands of the husband. It has been said time and time again that orders of exclusion are draconian and only to be made in exceptional cases. Add to that the judge's assessment that the friction between the parties was only the product of their incompatible personalities and the heightened tensions that any family has to live with whilst the process of divorce and separation is current, and the judge's conclusion is plainly justified'.

Another feature of the case that led to the Court of Appeal dismissing the appeal was that there was an imminent substantive hearing on both the issues of residence and of ancillary relief within a few weeks of the hearing and therefore it was undesirable to make an occupation order prior to that hearing. The Court of Appeal unanimously said that the judge was clearly right to refuse to make the order on that occasion.  On a careful analysis of the case, the then President, Dame Elizabeth Butler-Sloss, expressed the view that it would have been undesirable to have parted them (parties) and to have made the order which would turn the father, who had a perfectly viable application for residence, out of the home prior to making these substantive decisions.     

Dolan v Corby [2011] EWCA Civ 1664
Dolan reaffirmed that s33(6) and s33(7) must not be conflated but of greater importance is its clarification as to whether non-violent conduct could fall within the test for exceptional circumstances.  Black LJ clarified that Chalmers v Johns or G v G should not be read as saying that an exclusion order can only be made where there is violence or a threat of violence. That would be 'to put a gloss on the statute which would be inappropriate'. Chalmers v Johns and G v G reiterated the draconian nature of an occupation order and reaffirmed that such an order should only be justified in exceptional circumstances. Because of Dolan, we now know that exceptional circumstances can:

1. Take many forms e.g. psychiatrist state of the applicant

2. Are not confined to violent behaviour on the part of the respondent or the threat of violence

3. It is for the judge to identify and weigh up all the relevant features of the case whatever their nature.

Re L (Children) (Occupation order: absence of domestic violence) [2012] EWCA Civ 721         
The Court of Appeal restated its 'broader' definition that there is nothing in section 33(6) to limit the discretion to make an occupation order to cases in which there have been physical violence. Even in section 33(7), which deals with significant harm, physical harm is not required as we can see from the definition of harm in s 63 ("ill-treatment" includes forms of ill-treatment which are not physical and, in relation to a child, includes sexual abuse) of the Family Law Act 1996, which is wide.  

Black LJ went further to say that 'there is equally no authority establishing that a spouse can only be excluded from the home if reprehensible conduct on his or her behalf is found. It would be surprising if there were such an authority given the general terms of the relevant provisions of the Act and in particular the requirement of s 33(6) that there be consideration of all circumstances'.

It has taken just over a decade to for the court to fully grapple with the law in respect of occupation orders pursuant to section 33, subsections (6) and (7). During that period, there have been challenges, clarifications and expansion of legal definitions. It is relevant to emphasise the draconian nature of an occupation order and thus the need for careful analysis and application. Occupation orders under s 33 are subject to a two stage test.  The first consideration is the balance of harm test, s33(7). Depending on how the court answers that question, it can then go on to make the order or to consider the discretionary test, s33(6). It is important to note that an occupation order should only be justified if the circumstances are deemed exceptional. Such circumstances, we now know, may include non-violent conducts. It is therefore left to the court to identify those particular circumstances, weighing their relevance to the matter before determining the final outcome.   

Whilst our understanding of occupation orders has developed, mainly due to the guiding precedents, there will undoubtedly be further debates about the level of activities or behaviour that would constitute 'exceptional circumstances'. However, I suspect that this will be dealt with on a case by case basis. The conclusion, if there is ever such a thing, is that we have made progress in establishing a more robust legal framework for the consistent application of occupation orders subject to section 33 of the Family Law Act 1996. However, one of the alluring facets of law is the variability of interpretations that will forever shape how legal principles and concepts are developed, defined and applied. To that end, we wait zealously for any further development of occupation orders.