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Dolan v Corby: Opening the Door to Confusion in the Test for Occupation Orders?

Eleanor Fletcher and Juliet Chapman, barristers, of Lamb Building explore how far the Court of Appeal’s latest guidance for granting exclusionary occupation orders is consistent with its previous dicta.

Eleanor Fletcher, barrister, Lamb BuildingJuliet Chapman, Barrister, Lamb Building






Eleanor Fletcher
, Barrister, and Juliet Chapman, Barrister, both of Lamb Building

In Dolan v Corby [2011] EWCA Civ 1664, the Court of Appeal considered the legal test for granting exclusionary occupation orders under section 33 of the Family Law Act 1996. This article will explore how far the Court's latest guidance is consistent with its previous dicta in Chalmers v Johns [1999] 1 FLR 392.

Legal Framework
The test for making an occupation order under s33 of the Family Law Act 1996 (FLA 1996) is found in subsections 33(6) and 33(7). This section deals with applicants who have an estate or interest in the property, or have home rights.

Section 33(6):

"In 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."

Section 33(7):

" ... the court shall make the order unless it appears to the court 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 the 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."

As practitioners are aware, if the court holds that the balance of harm test under s33 (7) is satisfied, then it must make the order. Conversely, s33 (6) provides only a discretionary power to grant an injunction.

Chalmers v Johns
When the Court of Appeal last considered the test in the case of Chalmers v Johns, it clarified that, perhaps counter-intuitively, the court should first consider the "balance of harm test" under s33 (7), before going on to consider the factors set out in the previous subsection, s33 (6). Per Lord Justice Thorpe at [396]:

"So it seems to me that in approaching its function under this section, the court has first 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. 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. If, however, the court answers the question in the negative, then it enters the discretionary regime provided by subs (6) and must exercise a broad discretion having regard to all the circumstances of the case, particularly those factors set out in the statutory checklist within subparas (a)-(d) inclusive."

His Lordship went on to say that the judge at first instance in Chalmers v Johns had "never clearly focused upon the alternative nature of these adjoining subsections. She seems to have treated them as if both were applicable as it were simultaneously to the facts of the case." This proved fatal to her determination of the matter; since the case did not fall under the balance of harm test set out in s33(7) the Judge should not have taken that subsection into account in her reasoning.

In Dolan v Corby, Lady Justice Black, sitting alongside Lords Justices Thorpe and Rafferty, delivered the following as part of her judgment at paragraph [26]:

"There is little doubt in my mind that the Recorder did conflate Section 33(6) and Section 33(7) rather than considering them separately as he should have done [...]

27. I agree with Mr Miller however that the Recorder's judgment can properly be approached as an exercise of discretion under Section 33(6) and that his conflation of the two provisions does not necessarily vitiate that exercise of discretion."

It appears then that the current guidance from the Court of Appeal is somewhat peculiar: 'conflating' the two subsections will not necessarily prove fatal to a determination, but considering them 'simultaneously' will? Can this be consistent?

Dolan v Corby
The parties began living together in the property as joint tenants in the property in 1980. In December 2010 the applicant, Ms Dolan, applied on an ex parte basis for non-molestation and occupation orders, alleging verbal and physical abuse by the respondent.  The non-molestation order was granted, and the application for the occupation order was set down to be heard inter partes.  After a series of delays, the case was eventually heard in June 2011 when Mr Recorder Bradshaw granted an occupation order excluding the respondent from the property.

At first instance
The Recorder found that the allegations of direct physical violence were not proved but that the allegations of verbal abuse were founded in fact, as the respondent had subjected the applicant to "verbal abuse and frequently belittled her."  It was also found that the respondent, Mr Corby, had lived in the property from 1980 until the granting of the non-molestation order when he had moved out. Since that date he had been living on the sofas of friends and family. Ms Dolan, on the other hand, had not consistently resided at the property since 1980: she had had a series of other addresses and in fact shortly before the hearing had given up a tenancy on a different property.

Importantly, the Recorder found that Ms Dolan, who had a history of drug abuse, suffered from psychiatric problems even though no particular problem had been diagnosed. Elsewhere he held that she was a "very disturbed lady in need of immediate psychiatric help" and that she was a "vulnerable woman who finds herself unable to live with the respondent" [9 (2)].

The Recorder made the order in favour of the Ms Dolan. Although he found that the parties had similar housing needs, as a result of the applicant's psychiatric problems the respondent was better able to find alternative accommodation.

The appeal
Mr Corby's appeal focused on the Recorder's approach to the legal test under ss 33(6) and 33(7).

On behalf of Ms Dolan, it was conceded that the two provisions had been conflated but it was argued that the court should treat the judgment as though the Recorder had considered and disregarded s33(7) and had instead simply exercised his discretion under s33(6).

The Court of Appeal agreed and held that "his conflation of the two provisions does not necessarily vitiate that exercise of discretion." [27]

Certainly Black LJ did not think the case could come under s33(7).

"The Recorder found that Ms Dolan's psychiatric problems would be alleviated by being away from Mr Corby, but any argument that this amounted to a finding that she was likely to suffer significant harm attributable to Mr Corby's conduct if an order were not to be made would be tortuous in the extreme." [26]

The Recorder's decision was therefore a discretionary one and could be properly construed under subs (6) even though he had not specifically considered the provisions separately.

This is, in fact, consistent with the dictum of Lord Justice Thorpe in Chalmers v Johns:

"This was, in the range of domestic violence, a very slight case. But the corollary is that it was not really open to her to find that it was a case that fell into the ambit of subs (7). Had she approached the case in relation only to subs (6), could she in the proper exercise of her discretion have come to the conclusion that an order requiring the respondent to leave was justified?" [397]

The Court of Appeal's answer on that facts of that case was no, but in Dolan v Corby it was yes.

It was further submitted on behalf of Mr Corby, following the authority of G v G [2000] 3 FCR 53, that these orders are Draconian and should only be granted in exceptional circumstances. Given the finding of no violence, the appellant should not have been excluded from the home.

However, for Black LJ, the necessity of making a finding of violence was not how she read Chalmers v Johns or G v G.  The court has regard to 'all the circumstances' of the case and "[h]ere the central feature was the psychiatric state of the applicant which was capable in my view of making the case exceptional."[27]

What is the Court of Appeal guidance on applying s33(6) and (7)?
It seems that, despite first appearances in Dolan v Corby, the existing guidance on occupation orders continues. The court must consider s 33(7) and the balance of harm test first, then look at the discretionary factors under s 33(6). Conflating the provisions in the judge's reasoning will not prove fatal, but only if the case can still be properly construed as coming under the discretionary regime of s33(6).

In the final determination, when the court has looked at the discretionary factors, it should only grant such a 'Draconian' order if, per G v G, the case is 'exceptional'.  In Dolan v Corby the Court of Appeal held that the applicant's psychiatric state had rendered it exceptional, thus justifying the making of an occupation order.