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Occupation orders: a practical (and quick) guide to the law

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  • Occupation orders: a practical (and quick) guide to the law

    In the recent cases Dolan v Corby [2011] EWCA Civ 1664 and Re L (Children) [2012] EWCA Civ the legal test for granting exclusionary occupation orders has been considered. Both concerned applications under Section 33 of the Family Law Act 1996 ('the Act').

    The reader will be familiar with the powers available under this section of the Act and those available under alternative sections (together with the respective tests relevant to those sections). This article focuses on the question of the correct approach which ought to be taken by the court in deciding whether grant an occupation order under s33 of the Act.

    The practitioner is advised to consider an application for an occupation order in two stages.

    1. The Test - "Getting in" to Section 33(7)

    The Act, by sections 33(6) and 33(7), provides for a two-track approach to the exercise of the court's powers under s33(3). In Chalmers v John [1999] 1 FLR 392 Lord Justice Thorpe, made clear the relationship between the two tracks and how they operate in practice; the first question to be addressed in any section 33 application is therefore:

    • Is the applicant (or any relevant child) likely to suffer significant harm attributable to the conduct of the respondent if an order is not made?

    If the answer is yes, the applicant is able to proceed under the test at s33(7) of the Act. If the answer is no, the applicant must clear the test prescribed by s33(6). This approach was endorsed by Black LJ in Dolan [at 21 and 26], where the first-instance judge was criticised for having 'conflated' the two provisions.

    An interesting demonstration of the requirements of 'getting in' to s33(7) is provided by the recent case of Re L (Children). It would appear1 that the court held the children to be suffering significant harm as a result of heated arguments between the parents. It was the contribution of both parents to those arguments, however, which meant that they could no longer live together without that harm being caused - the requisite attribution of the significant harm to the "conduct of the respondent" could not be made out. The application therefore had to proceed under s33(6).

    2. Exercising the court's powers; the relevant considerations

    Section 33(7)

    Clearing the 'section 33(7) hurdle' is of great significance; where the applicant is successful in persuading the court that they (or any relevant child) are likely to suffer significant harm attributable to the conduct of the respondent then an order will be granted unless:

    • The respondent can establish that they (or a relevant child) are likely to suffer significant harm and that harm is as great as, or greater than, the harm attributable to the conduct of the respondent which is likely to be suffered by the applicant (or child)

    Even under s33(7), however, practitioners should exercise care as to the scope of any s33(3) provisions applied for - a court ought only to grant such order as is required to ensure that the applicant is no longer at risk of significant harm. The severity of the order sought will also, of course, impact upon the extent to which the respondent might be able to raise the defence of being as significantly harmed (or more so) by the prospective order than the applicant.

    Section 33(6)

    Failure to clear the 'hurdle' leaves the court with an altogether more difficult balancing act to tackle; it must "have regard to all the circumstances" which include (as a non-exhaustive list):

    a) The housing needs and housing resources of the parties (and children);

    b) The financial resources of each of the parties;

    c) The effect of any order, or failure to make an order, on the healthy, safety or well-being of the parties (and children);

    d) The conduct of the parties.

    This provision is drafted widely and, as such, cases will frequently turn on their own facts. That notwithstanding, the recent cases of Dolan v Corby and Re L (Children), together with Grubb v Grubb [2009] EWCA Civ 976, have produced judgments which consider the exercise of the court's discretion under this section. It is possible to extract the following propositions:

    a) An exclusion order is a grave order but can be made in the absence of violence or the threat of violence (Dolan [at 27]);

    b) The judge ought to identify and weigh up all of the relevant features of the case, whatever their nature (Dolan [at 27]);

    c) The relative vulnerability of the parties is relevant to the court deciding which party ought to be excluded from the property (Dolan [at 27]);

    d) Where an occupation order is deemed necessary the court ought not simply to consider the behaviour of the parties and award occupation to the party who behaved less inappropriately; conduct is only one of the circumstances which falls to be considered (Dolan [at 28]);

    e) S33(6) is drafted broadly - it requires the court to weigh up all the circumstances and grant an occupation order where those circumstances are extreme. Extreme circumstances do not, however, require violence (Re L);

    f) An occupation order carries its greatest level of seriousness when it is made against a party to whom alternative accommodation is not readily available (Grubb at [26]);

    g) Harm caused (whether in assessment under s33(6) or s33(7)) need not be deliberately caused but a lack of intent may be a relevant consideration (G v G [2000] EWCA Civ 509 [at 13, 24]).

    Conclusions

    There is no doubt that coming within the s33(7) criteria of likely significant harm attributable to the conduct of the respondent remains highly advantageous to an applicant for an occupation order. It reverses the burden, requiring the respondent to achieve a high threshold indeed to resist the application. However, the recent cases of Dolan, Re L and Grubb may suggest a shift by the courts away from emphasising the Draconian and punitive nature of such orders and towards the need to consider all the circumstances, making an order - where one is required - on the pragmatic basis of which party will suffer the least by being excluded.

    James Finch, 29 Bedford Row

    1 The judgment was delivered ex tempore on 4th May 2012; a full report of judgment is not yet available



Published: 22/05/2012

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