G v G

Under section 33 of the Family Law Act 1996, significant harm must be attributable to the respondent’s conduct by reference to its effect, not the respondent’s intention. The court must apply the comparative-harm test in section 33(7) and, whether or not that test is satisfied, conduct the discretionary assessment required by section 33(6), including the statutory checklist. An occupation order is a serious remedy and exclusion will generally be exceptional. Even where the first-instance reasoning contains legal errors, an appellate court may dismiss the appeal if the conclusion is tenable and the circumstances, including an imminent substantive hearing, make an order inappropriate.

The wife applied for a non-molestation order and an occupation order under section 33 of the Family Law Act 1996, seeking restrictions on the husband’s occupation of the matrimonial home. The county court judge found that the children and wife were suffering, and that the husband’s conduct contributed to the family tension, but refused the occupation order. He considered that the statutory threshold in section 33(7) was not met and that an order was inappropriate shortly before the final hearing of residence and ancillary-relief issues.

The wife appealed, alleging errors in the construction of section 33(7), the comparative-harm test and the section 33(6) checklist. The central issue was whether those errors required the refusal to be set aside.

1. Appeal dismissed. Although the judge’s reasoning was vulnerable to criticism, the refusal of the occupation order was upheld.
2. Per Lord Justice Thorpe, section 33(7) requires attention to the effect of the respondent’s conduct. The court should not concentrate on whether the conduct was intentional. Conduct may cause significant harm even without an intention to cause it. The statutory question is whether the harm is attributable to the conduct proved.
3. The judge also misapplied the comparative-harm test. The relevant comparison is between the harm likely to be suffered by the applicant or relevant child if the order is not made and the harm likely to be suffered by the respondent or relevant child if it is made.
4. The discretionary assessment under section 33(6) remains necessary even where the mandatory conditions in section 33(7) are not established. The court must have regard to all the circumstances, including the housing needs and resources, financial resources, likely effects on health, safety or well-being, and the parties’ conduct. The judge failed expressly to address the checklist, although he considered the circumstances generally.
5. The errors did not require a rehearing. Exclusion orders are draconian and ordinarily exceptional. The case involved no violence, the final residence and ancillary-relief hearing was imminent, the husband was frequently away on business, the children wished him to remain, and the judge had regulated the parties’ continuing occupation of the home.
6. The court observed that the judge could, if appropriate, have made a regulatory order under section 33(3)(c), rather than excluding the husband. The order against the Legal Aid Board under section 18 of the Legal Aid Act 1988 was suspended for 10 weeks to permit representations.

• Court of Appeal (Civil Division): Appeal from the Southampton County Court dismissed. The court upheld the refusal of the occupation order, subject to criticism of the first-instance reasoning. The order against the Legal Aid Board was suspended for 10 weeks.