Occupation Orders (Skeleton)
[This is an excerpt from one of my skeleton arguments. You should click here to read the guidance before using the information below. You should do your own research to check the accuracy and should not rely solely upon the information below.]
Correct as at May 2019
1. Section 33(6) of the 1996 Act provides as follows:
(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.
2. Section 33(7) of the 1996 Act provides as follows:
“If 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.”
3. Section 63 of the 1996 Act states that “harm… means ill-treatment or the impairment of health”, which includes physical or mental health.
4. In the case of Chalmers v Johns [1999] 1 FLR 392, Thorpe LJ stated the court’s approach to such applications at 396:
“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) to (d) inclusive.”
5. In Dolan v Dolan [2012] 2 FLR 1031, Black LJ at para 21 of her judgment cited with approval the authority of Chalmers v Johns, and at para 26 stated that the correct approach is not to conflated sub-sections (6) and (7), but to consider them separately.
6. Black LJ also stated the following principles in interpreting and applying Section 33 of the 1996 Act:
a) at para 27:
“I do not read Chalmers v Johns or G v G 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 stress that it must be recognised that 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.”
b) at para 28:
“Exercising discretion under s 33(6) is not a matter of considering the behaviour of the parties and awarding occupation of the property in question to the one who has behaved less inappropriately. All the circumstances must be considered, of which conduct is only one.”
7. In G v G [2000] EWCA Civ 509 Thorpe LJ, giving the leading judgment, re-affirmed the principles stated in his judgment in Chalmers and then went on to state at para 13:
“Plainly, 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 section 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 stuck 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.”
8. Dame Butler-Sloss P put it more succinctly at para 24:
“Significant harm has to be attributable to conduct of the respondent. It does not necessarily have to be intentional conduct, although lack of intent may be a relevant consideration.”
9. In Grubb v Grubb [2009] EWCA Civ 976, Wilson LJ sitting as a single judge and refusing an application for permission to appeal against an occupation order pursued under Section 33(6) stated at 26”
“An occupation order is always serious, and no doubt can sometimes be particularly serious when it relates to a spouse’s removal from what one might almost call his ancestral home. But the occupation order is likely to carry its greatest level of seriousness when it is made against a spouse to whom alternative accommodation is not readily available.”
10. In Re L (Children) (Occupation order: absence of domestic violence) [2012] EWCA Civ 721, Black LJ at para 21 stated:
“There is nothing in s33(6) to limit the discretion to make occupation order to cases in which there has been physical violence. Even in s 33(7), which deals with “significant harm”, physical harm is not required as we can see from the definition of harm in s 63 of the Act, which is wide. Section 33(6) requires the court to look at all the circumstances and by s 33(6)(c) it is directed to include in these "the likely effect of any order, or of any decision by the court not to exercise its powers under sub-s (3), on the health, safety or well-being of the parties and any relevant child". This is broadly drafted covering not just cases in which there is violence but also all manner of other problems that can occur when a relationship has run into difficulties.”