Occupation Order Case Examples

Re L (Children) [2012] EWCA Civ

In this case, the mother and father had eight-year-old twins. Following the breakdown of their relationship, a number of heated arguments followed. The mother applied for an occupation order to have the father excluded from the property. The court found the children were being adversely affected by their parents’ arguments and held that the twins were likely to suffer significant emotional harm as a consequence.

An occupation order was made under Section 33(6) of the Family Law Act, excluding the father from the property for a three-month period. A shared residence order was also made, stating that the children would live with their mother and spend regular time with their father. The dad was due to make a number of trips abroad while the order was in force and so it was a sensible decision for the wife to be the children’s primary carer.

The father appealed…

He refuted the decision on the grounds there was no proof of violence and the judge was wrong to have made an order. Yet, in the case of in Grubb v Grubb[2009] EWCA Civ 976, an occupation order was successfully granted when no violence or significant harm had occurred. Similarly, in the case of Dolan v Corby [2011] EWCA Civ 1664, the court recognised:

“an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature”.

The father’s appeal was unsuccessful. Given the finding that the children would be adversely affected (i.e. would be likely to suffer significant harm) as a result of the quarrelling between their parents. The children’s welfare had to be the court’s paramount consideration.

While the balance of harm test may be extremely beneficial in a number of cases, the mother’s application here was unable to continue under it. Essentially because the harm the children were going to suffer could not be attributable to the father alone. As such, the core criteria test had to be applied. Using this test, the court found there to be sufficient risk that the children would suffer emotional harm as a result of the arguments. While the court is not compelled to make an occupation order in such circumstances, the emotional harm the children would suffer was deemed sufficient for the order to be made.

In light of recent case law, the court is still required to first consider the balance of harm test. If the criteria for this test cannot be met, the court should then consider the core criteria test through a consideration of all relevant circumstances surrounding the case. An occupation order should only be made where it is considered necessary.

Family situations are often complex and extremely varied and they cannot be a “one size fits all”, so it is good to see that the court is aware of this and is demonstrating a ability to be flexible within the guidelines given.

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