L (Children), Re

An occupation order excluding a spouse from the family home is not confined to cases involving physical violence or reprehensible conduct. Under the Family Law Act 1996 section 33(6), the court has a broad discretion to consider all circumstances, including the order’s likely effect on health, safety and well-being. The order remains draconian and should be made only in exceptional circumstances, after considering less intrusive ways of regulating occupation. Where parents living together expose children to significant harm, a judge may intervene on adult evidence and recordings alone and choose a primary carer if necessary. An appellate court should respect the first-instance judge’s evaluation where the order falls within the permissible range.

The husband appealed against orders made by HHJ Yelton in Cambridge County Court on 27 March 2012. The judge excluded him from the matrimonial home until 27 June 2012 under the Family Law Act 1996 section 33 and made a shared residence order under which the twins were to live primarily with their mother and spend frequent time with their father.

The husband challenged the exclusion order and the specification of the mother as primary carer. He argued that the findings were insufficient, that there was no relevant violence or evidence of harm to the children, and that less drastic alternatives had not been considered. The central issues were the scope of section 33 and whether the judge had properly exercised the statutory discretion.

The appeal was dismissed unanimously. Black LJ gave the principal reasons, with Aikens and Thorpe LJJ agreeing.

1. Under the Family Law Act 1996 section 33(7), the court must consider whether the applicant or a relevant child is likely to suffer significant harm attributable to the respondent’s conduct if no order is made. That provision did not govern this case because the children’s harm was attributable to both parents and to their joint presence in the home. The judge therefore proceeded under section 33(6).
2. Section 33(6) confers a broad discretion requiring consideration of all the circumstances, including the matters identified in paragraphs (a) to (d). The discretion is not limited to cases involving physical violence, and exclusion does not require a finding of reprehensible conduct. The wide definition of harm in section 63 includes emotional harm.
3. An order excluding a spouse from the home is draconian because it interferes with property rights. It should be made only in exceptional circumstances, although exceptional circumstances are not confined to violence or threats. The court should identify and weigh all relevant features, including the likely effect on the parties and children.
4. The judge was not required to determine every allegation made by the parties. It was sufficient to make findings on matters relevant to the discretion. An experienced family judge could assess the risk of significant emotional harm from the adults’ evidence and the recordings without additional corroborative evidence.
5. The judge was entitled to conclude that continued cohabitation would expose the children to significant harm and to determine which parent should provide primary care. The choice of the mother was within the range of reasonable decisions on the evidence of her full-time availability and the father’s work-related travel.
6. Express consideration of less intrusive alternatives, such as regulating the use of rooms or alternating occupation in a Cox and Box arrangement, was appropriate. However, the omission did not invalidate this short-term order where alternatives had not been put forward, a trial arrangement had proved impracticable, and the judge had made the necessary findings. The order did not pre-judge any later application, which would require consideration of the circumstances then existing.

• Court of Appeal (Civil Division): On 4 May 2012, the court dismissed the appeal against the orders made below: [2012] EWCA Civ 721.
• Cambridge County Court: On 27 March 2012, HHJ Yelton made an occupation order excluding the husband from the matrimonial home until 27 June 2012 and a shared residence order providing that the children live primarily with their mother.