KM v LN (Appeal: Occupation Order and Interim Child Arrangements)

When an application for an occupation order under Family Law Act 1996 s 33 is closely linked to interim child arrangements, the court must consider the effect of making or refusing the order on the revised arrangements and on the health, safety and well-being of the parties and relevant children. The paramountcy principle and welfare checklist do not govern the occupation-order decision itself, but they govern the consequential child-arrangements decision. The broad discretion under s 33(6) may justify excluding a parent without a finding of reprehensible conduct where continuing cohabitation or nesting is harmful. The statutory significant-harm test in s 33(7) remains distinct. An imminent final hearing does not require a stay, and appellate review does not permit substitution of a reasonable discretionary decision.

This was a rolled-up appeal by the father against a Central Family Court order made on 3 July 2026. The order excluded him from the family home under Family Law Act 1996 s 33 for six months and varied interim child arrangements. A court-imposed partial nesting arrangement had continued for about ten months while final financial-remedy and child-arrangements hearings were approaching.

The appeal alleged that the judge had used the wrong legal framework, failed to consider material evidence, should have stayed the application, and had made a disproportionate interference with the family’s rights. The central issue was whether the occupation order and consequential child arrangements were reached within the statutory framework and the proper limits of appellate review.

Appeal dismissed. Ground 1 had a real prospect of success for permission purposes, but the substantive appeal on that ground failed. Permission to appeal on grounds 2–5 and in relation to the interim child arrangements order was refused.

1. Appellate review. An appeal may succeed for legal or factual error, serious procedural irregularity, or an exercise of discretion outside the generous ambit within which reasonable disagreement is possible, as explained in G v G (Minors: Custody Appeal) [1985] FLR 894. Permission requires a realistic prospect of success or another compelling reason. The court applied the guidance in R (A Child) [2019] EWCA Civ 895. The judgment under appeal had to be read as a whole, without narrow textual analysis, following Re F (Children) [2016] EWCA Civ 546 and Piglowska v Piglowski [1999] 1 WLR 1360. The appellate court also had to respect the trial judge’s advantage in assessing evidence, as stated in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5.
2. Occupation-order framework. Entitlement to apply under Family Law Act 1996 s 33 was a precondition. Section 33(7) and its comparative-harm test were distinct from the broad discretion under s 33(6). The latter required consideration of all the circumstances, including housing and financial resources, likely effects on health, safety and well-being, and conduct. An exclusion order was serious, but the discretion was not confined to cases involving violence or reprehensible conduct.
3. Interaction with child arrangements. The paramountcy principle and welfare checklist did not govern the decision whether to make an occupation order. However, where exclusion would inevitably terminate a nesting arrangement, the judge had to consider the likely shape of the revised child arrangements and their effect on the parties and children. Those arrangements had to be assessed under the Children Act 1989 welfare framework, and their consequences then had to be weighed under s 33. This was not a circular exercise.
4. Application. Although the judge did not expressly analyse the revised arrangements before making the occupation order, the notes read as a whole showed that he understood the consequence of exclusion, considered the children’s welfare, and had the likely arrangements in mind. The order of reasoning did not invalidate the decision. The judge was entitled to conclude that continued cohabitation and partial nesting were harmful, that a full nesting arrangement would remain disruptive, and that the father’s greater financial resources made alternative accommodation more readily available. No finding of reprehensible conduct by him was required.
5. Timing and final orders. The approaching final hearings did not require a stay and did not prevent an order that would operate for a limited period. The first-instance decision on interim child arrangements was also within the judge’s discretion and was not plainly wrong. The father was required to vacate the home, subject to the revised arrangements.

1. High Court (Family Division): The appeal was dismissed. Permission to appeal was refused on grounds 2–5 and in relation to the interim child arrangements order. [2026] EWHC 2123 (Fam)
2. Central Family Court: On 3 July 2026 HHJ Middleton-Roy made an occupation order excluding the father from the family home for six months and varied the interim child arrangements.