Chalmers v Johns

Under section 33 of the Family Law Act 1996, the court must first decide whether failure to make an occupation order would expose the applicant or a relevant child to significant harm attributable to the respondent’s conduct. If so, the order must be made unless the countervailing harm would be at least as great. If not, the court proceeds under the broad discretionary regime in section 33(6), applying the statutory checklist.

An interim order requiring a party to leave a jointly occupied family home overrides proprietary rights and remains draconian. It is ordinarily justified only in exceptional circumstances, although immediate relief may be required where violence or the risk of harm is sufficiently serious.

The parties were joint tenants of the family home and had two children. After a troubled relationship involving several police attendances and minor injuries, the mother left with the younger child and sought an occupation order under the Family Law Act 1996. The father sought, among other relief, residence and occupation orders.

At an interim hearing, Her Honour Judge Pearlman ordered the father to vacate the home. The Court of Appeal granted permission to appeal and stayed the order pending the appeal. The central issues were whether section 33(7) applied, whether the judge had properly exercised the section 33(6) discretion, and whether a definitive occupation order was justified shortly before the substantive hearing.

1. Appeal allowed. The occupation-order applications were adjourned for determination at the substantive hearing. There was no order for costs, save legal aid taxation.
2. Lord Justice Thorpe held that section 33(6) and section 33(7) establish alternative regimes. The court must first ask whether the applicant or a relevant child is likely to suffer significant harm attributable to the respondent’s conduct if an order is not made. If the answer is yes, an order must be made unless the harm likely to be suffered by the respondent or child if it is made is as great as, or greater than, the harm likely to be suffered by the applicant or child if it is not made. If the answer is no, the court must exercise the broad discretion under section 33(6), having regard to all the circumstances and the statutory factors.
3. The judge had treated the two subsections as operating simultaneously and wrongly brought section 33(7) into account. The facts involved a very slight case of domestic violence and did not support a finding that the mother or child was likely to suffer significant harm if the order was not made.
4. Lord Justice Otton agreed and emphasised that section 33(7) requires significant harm to the applicant or child. Referring to the meaning of significant harm considered in Humberside County Council v B [1993] FLR 257, he held that the evidence fell far short of showing considerable, noteworthy or important harm to the child. Increased travelling time to school was inconvenience, not harm.
5. An order requiring a respondent to vacate the family home overrides proprietary rights and is draconian. The wider provisions of the Family Law Act 1996 did not remove the earlier caution that such orders should ordinarily be confined to exceptional cases. A court should be cautious about making a definitive interlocutory order where a substantive hearing is imminent, while recognising that immediate relief may be necessary in sufficiently serious cases.
6. The evidence did not justify the judge’s conclusion that an undertaking could not protect the applicant or child. The domestic disharmony was capable of being controlled by injunctive relief. The court also encouraged the parties to consider voluntary mediation, observing that it had no power to require it.

• Court of Appeal (Civil Division) [1998] EWCA Civ 1452: Appeal allowed against the interim occupation order. The occupation-order applications were adjourned to the substantive hearing; no order for costs, save legal aid taxation.
• High Court of Justice, Family Division: Her Honour Judge Pearlman ordered the father to vacate the family home seven days after the interim hearing.