Occupation Orders

Family Law Week publishes an interesting article this week on the recent case of Grubb v Grubb which concerns an appeal against the granting of an occupation order ousting a husband from the matrimonial home. The article appears here and the transcript here. I am going to take a slightly different slant on that case than the author on FLW, who is critical of the decision of the Court of Appeal to uphold the occupation order and who suggests that the case has significance for occupation order applications without allegations of violence, a significant which he fears is in danger of passing unnoticed.

.

Under s33 FLA 1996 the court has a discretion to make an occupation order even in the absence of significant harm. In exercising that discretion s33(6) directs the court to consider 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.

.

The only relevance of significant harm in an application for an occupation order is that, where the court considers that the Applicant or a relevant child might suffer significant harm if no order were made, then the so-called 'balance of harm' test set out in s33(7) comes into play. That creates a potential obligation to make an order, rather than a mere discretion. An applicant for an occupation order may seek to make out his case either by satisfying s33(6) or s33(7)  (or both). The Grubb case was not argued under s33(7). Looked at in that light, we can see that insofar as the Grubb case is an example of an occupation order being made in the absence of any significant harm, it is not groundbreaking.

.

An occupation order is of course quite separate from a non-molestation order - although they often co-exist. It may be trite to say it, but a non-molestation order deals with prohibiting acts of violence or harassment whilst an occupation order regulates the occupation of the home. Whilst there has to be a good reason to oust a party from their home there do not necessarily have to be grounds for a non-molestation order in order for an occupation order to be made. There is in fact no reference to violence or harassment in s33, although of course such behaviour would fall under 'all the circumstances' or 'conduct' or 'significant harm'. It is a mistake to think that one can oust only a violent partner, although very clearly violence or harassment are very likely to form a main plank of the grounds for many an application and it may be difficult to justify an ouster in the absence of such conduct - depending of course on the facts.

.

The transcript of judgment bears further reading. Although there are a number of specific findings relating to the Husband's conduct upon which the court of first instance relied when granting the occupation order, it is clear from the full judgment that there was a significant course of conduct of oppressive behaviour on the part of the husband which the wife experienced as putting her under unbearable pressure whilst the family all remained within the one property.

.

And yet the article characterises an occupation order as a 'domestic violence remedy' and queries whether this is really the kind of situation that it was intended to apply to. The suggestion made in the article is that a party 'need not cite very much by way of conduct' to justify an occupation order, and it seems to be said that cases of this kind are not what such a 'domestic violence remedy' was intended to cure. The writer of the article seems to me to fail to properly appreciate the extent of the Husband's conduct as described in the judgment (and indeed the medical evidence which demonstrated the impact it was having upon the Wife), and in doing so seems (perhaps unintentionally) to minimise the significance of the non-violent conduct. In my view non-violent conduct of the kind described in the transcript falls fairly and squarely within most working definitions of domestic abuse that professionals in the field would use - which may range from controlling behaviour and mental or verbal abuse to physical attacks.

.

I think that this is very much a case turning on its own facts. It may be unusual for occupation orders to be made in cases where the parties are wealthy, but that is precisely why the particular mix of factors is unlikely to be often repeated - for what the court was required to consider was whether to permit the toxic and harmful situation at home to continue in circumstances where an exercise of the court's discretion in favour of the wife would not cause the Husband significant hardship. More often than not there is only one property and an ouster will mean the ousted party sleeping in the car or sofa surfing. There is a difficult balance to strike in such cases and often the lesser evil is leaving the parties in situ, albeit in very unpleasant circumstances. In this case the court could cure the impact of the husband's ongoing conduct on the wife and children without causing any serious detriment or harm to him.

.

Characteristic of this case was the fact that the wife did not seek to exaggerate the seriousness of the conduct of the Husband by asserting any s33(7) significant harm, and nor did she seek necessarily to oust the husband if alternative accomodation were provided by him for herself and the children. The Husband had within his control the parties substantial financial resources and had it within his power to make this happen without the need for him to leave. Had the application been for the husband to be excluded from his own home for reasons outwith his control and without recourse to suitable accomodation to meet his own needs, the outcome no doubt would have been very different, and properly so.

 

‘Don’t you lot EVER think about the kids?’

No, you are absolutely right. We have spent years acquiring expertise, passed up the opportunity to earn three times as much money in any other area of law you care to choose, regularly work into the night reading graphic details about head injuries and abuse and neglect, and spend 50% of our time telling our feckless clients a few home truths and putting up with tears and swearing and storm outs, all because we don't give a **** about the children. I'm sorry if I sound a little facetious but really! I can't THINK of a more stupid job to do if you hated children. If I really hated children I'd go and be a teacher or something.

.

I do despair sometimes when a children's guardian can say such a thing to the lawyers in a case. I understand why these things are said, but still. It's a little insulting and a little upsetting.

.

But there is a serious point here. Simply because counsel acting on instructions of their client, say the mother or father in care proceedings, pursues an appeal on fairness grounds which will cause delay in a case where the Guardian is clear in her own mind what the outcome should be - does not demonstrate the callousness to the best interests of the child that the quote might suggest.

.

For what is fairness if it is not something applicable to all parties? If a parent seeks a step to be taken in proceedings to enable them to have a fair trial this may well cause delay but this does not necessarily mean that such a course of action is not child focussed. Delay is better avoided, but an unfair trial is unfair for all concerned. A gap in the evidence that prevents a parent properly pursuing their case for return of their children is a gap in the evidence which has prevented a child from having as good a chance as possible of going home to their family, which increases the risk that they may be avoidably adopted. And a trial which is rushed through to avoid delay at all costs may end up being postponed or appealed and reheard to ensure that it is done thoroughly and fairly - causing unnecessary delay and heartache for all concerned. And then there's the worst case scenario - a trial that produces the wrong outcome for a child that is not rectified on appeal.

.

Lawyers understand this whoever they are acting for and whatever their silent views of the merits of their clients case. What some professionals interpret as not caring is no more than our professional ability to take a step back from making judgments about what is or is not worth delaying matters for, and focussing on preparing the case properly so that the judge who has to make the final decision can make the right decision first time round. It is not easy for professionals of any discipline involved in these cases to maintain a professional distance, and it is particularly difficult for social workers and Guardians who are specifically tasked with making recommendations to the court to feel anything but frustrated waiting for their considered views to be acted upon by the court at trial, but the court framework is overlaid upon the social work role for a reason - to protect families, and to protect children. The lawyers are not working against that aim, they are a vital art of the process of getting to the right outcome.

.

Some cases admittedly look so hopeless or pointless or inevitable that everyone concerned feels that they are going through the motions. But in cases like that I remind myself of the cases I have dealt with where I have found myself succeeding on what I have told the client is a completely hopeless case. That's neither a mark of my brilliant advocacy skills, nor of my poor judgment - it is a demonstration of the importance of the judicial process.  

.

So to go back to the question - for my part I think about the kids all the time. How could one not? But then I get on with giving sound advice and acting on my instructions, and put my faith in the court to work out the right solution.

Trustee in Bankruptcy has 3 Year Window

I have not had time to read the full report of this case reported last week in The Times: Lewis and Another v Metropolitan Property Realisations Ltd (Court of Appeal, July 15 2009), but it is certainly going to be worth a look both for families concerned about losing their home and ex-(or soon to be ex-)spouses wondering whether the bankruptcy bears upon the ancillary relief. At time of posting it doesn't yet appear to be on www.bailii.org. Judging from the brief summary in The Times it tells us this though: that a TiB has three years from the date of bankruptcy to get his money out of a former matrimonial home, or else the property will re-vest in the bankrupt. In this case on the day before the 3 year window ended the TiB had purported to transfer his interest in the property to a third party for consideration of £1 and 25% of any eventual sale of that interest. This little ruse did not work held the Court of Appeal, as it did not fall within the meaning of 'realise' as required in s283A(3)(a) of the Insolvency Act 1986. Thus, the property vested back in the name of the lucky LUCKY bankrupt.