Free Family Court Guide: Occupation Orders

STEP 1: The application for an Occupation Order

Applying for an Occupation Order in the UK is a legal process that aims to protect you and your family from domestic violence or harassment. Here's a step-by-step guide on how to apply for an Occupation Order:

Contact a Trusted McKenzie Friend from the McKenzie Friend UK Network. You don't need paid lawyers in the family court.

Gather evidence: To support your application, collect evidence of the abuse or harassment you have experienced. This may include photographs of injuries, text messages, emails, letters, witness statements, or any other relevant documentation.

Fill out the application form called the FL401.

Write and submit your evidential statement with the FL401: Write a detailed statement explaining the incidents of abuse or harassment you have experienced. Be clear, factual, and concise in your statement. Include dates, times, and locations if possible. Our Trusted and Trained McKenzie Friend members of the Network can help you.

Is you application an urgent and without notice application?

If you application is urgentand without notice the court may grant an interim Occupation Order, however given the 'draconian' nature of the order this would be very rare. However, if granted, it is served on the other party by the court. The court will then set a return date for both parties to attend court for a Dispute Resolution Appointment.

If the application is not urgent or without notice, then the court will set a date for both parties to attend for the first hearing.

At the first hearing the Judge will determine whether the matter may merit the need for an interim Occupation order if not already served. The court will want to understand the position of the respondent, as to whether the accusations and allegations are admitted and an Occupation- Order is accepted. If the accusations are denied, the Judge may set a date for a Contested Hearing and the respondent will be provided with the opportunity to file and serve their evidential statement and any evidence in response to the allegations.

At the Dispute Resolution Appointment, there are other options to consider to reach a resolution:

a) The respondent can propse accepting an occupatin order on a no-fault or no admissions basis.

b) The respondent can offer a formal undertaking on a no fault or no admissions basis.

If there is no resolution at the first hearing the court will set a date for a final hearing and will determine whether an interim occupation-order is needed.

Note: Service of documents: If the court grants a Temporary Occupation Order or schedules a full hearing, the relevant documents will be served on the respondent (the person you are seeking protection from) by the court or a process server. Never serve the papers yourself.

If the court is satisfied that you have reasonable grounds for the application, they will issue an Occupation Order and it can last for a defined period, typically between 6 months and 1 year.

Breach of the order: A power of arrest can be attached to occupation orders if the court is satisfied that your abuser has used or threatened violence against you. If your abuser breaches any part of your occupation order and there is a power of arrest attached to it, you can report the breach directly to the police.

Resources:

Find a McKenzie Friend

The General Principles

(Children), Re [2012] EWCA Civ 721 (04 May 2012) The mother and father had eight-year-old twins. Following the breakdown of their relationship, a number of heated arguments followed. The mother applied for an occupation order to have the father excluded from the property. The court found the children were being adversely affected by their parents’ arguments and held that the twins were likely to suffer significant emotional harm as a consequence. See Judgement

Grubb v Grubb[2009] EWCA Civ 976,
An occupation order was successfully granted when no violence or significant harm had occurred See Judgement
Dolan v Corby [2011] EWCA Civ 1664
“an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature”. See Judgement

Resources:

The Case Law National Archive

FL401 Application Form

N117 General form of undertaking

Free Standing Orders - Occupation Orders

Occupation Order
22. The relevant provision in this case is s.33 FLA 1996. As per Chalmers v Johns [1999] 1 FLR
392, the Court must first consider s.33(7) and then, if answered in the negative, s.33(6):
s.33(7): “If it appears to the court that the applicant or any relevant child is likely to suffer significant harm
attributable to conduct of the respondent if an order under this section containing one or more of the provisions
mentioned in subsection (3) is not made, the courts shall make the order unless it appears to the court that-
(a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and
(b) the harm likely to be suffered by the respondent or child in that event is as great as, or greater than,
the harm attributable to the conduct of the respondent which is likely to be suffered by the applicant or
child if the order is not made.”
s.33(6): “In deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court
shall have regard to 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 wellbeing of the parties and of any relevant child; and
(d) the conduct of the parties in relation to each other and otherwise.”

23. The Court must also have regard to the case-law, which emphasises that the making of an
exclusionary Occupation Order is draconian and exceptional:
a. The case-law has consistently underlined the extremely draconian nature of the powers
to remove owners or co-owners from their home, and therefore the exceptional
circumstances needed to justify using the occupation order powers. For instance: Re Y
(children) (occupation order) [2000] 2 FCR 470; Grubb v Grubb [2009] EWCA Civ
976, [2011] 1 FLR 687; Re L (children) (occupation order: absence of domestic
violence) [2012] EWCA Civ 721, [2012] 2 FLR 1417; Dolan v Corby[2011] EWCA
Civ 1664, [2012] 2 FLR 1031. For example, in Grubb v Grubb, Wilson LJ stated: “An
occupation order is always a serious, and no doubt can sometimes be particularly serious when it relates
to a spouse’s removal from what one might almost call his ancestral home. But the occupation order is
likely to carry its greatest level of seriousness when it is made against a spouse to whom alternative
accommodation is not readily available.”
b. In Re Y (children) (occupation order) [2000] 2 FCR 470, occupation orders were
described as “draconian”. The court stated that the order could not be properly made on
the basis only that there would be less harm if the parties were separated than if they
remained living in the same house. It was noted that there were effective undertakings in

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place between the parties themselves, the home was large enough to house both parties
and the children, and also that the home was likely to be sold as part of the financial
remedy proceedings. It was impermissible to use an occupation order simply to break
the deadlock in those proceedings.
c. In PF v CF [2017] 1 FCR 266 (HC), Baker J stated that the Court must always impose
the least interventionist order necessary to achieve the object of protecting the applicant
and should only exclude a respondent from a property where regulating the occupancy
of it would be insufficient. It is notable that the trial judge heard oral evidence from both
parties before making her decision, and thus was able to form a view as to their
respective credibility. Key paragraphs include:
i. “27. Any order that interferes with rights to occupy property is serious and should only be
made where the circumstances justify it. Furthermore, as Mr Johnstone submits, the court must
impose the least interventionist order necessary to achieve the object of protecting the applicant,
and it is only where an order regulating the occupancy of the property would be insufficient to
protect the applicant that the court is entitled to make an order excluding the respondent from
the property altogether. On one view, the larger the property, the greater the likelihood that the
applicant would be sufficiently protected by regulating the occupancy and dividing the property
between the parties. In this case, however, the judge found it unlikely that the husband would
honour any division of the property. This conclusion was plainly within her discretion, and
consistent with her overall assessment of the husband and his evidence. Given the fact that the
husband owned a significant number of other properties, and was a man of some means, an
order excluding him was one which the court was plainly entitled to make under s.33(3) and
(7).”
ii. “30. I find that the judge's decision to make an occupation order in this case was manifestly
within her discretion. She based her decision on an assessment of the parties' evidence and the
degree of harm which the wife had suffered at the hands of the husband. She identified and
applied the law to those facts as found by her. In my view, there is no prospect of the husband
succeeding in an appeal against the occupation order.”

d. In G v G (occupation order: conduct) [2000] 2 FLR 36 (CA), the Court stated as
follows:
i. “… It has been said time and time again that orders of exclusion are draconian and only to be
made in exceptional cases. Add to that the judge's assessment that the friction between the
parties was only the product of their incompatible personalities and the heightened tensions that
any family has to live with whilst the process of divorce and separation is current, and the
judge's conclusion is plainly justified.” (pp.41)
ii. Thorpe LJ: “Finally, I refer to the judge's opportunity, which he took to the full, to lay down
regulation for the continuing shared occupation of the home by the spouses and guidance as to
how they should conduct themselves in the intervening weeks before the final hearing.
Specifically, he directed that the father should vacate the principal bedroom and make it
available to the mother. He said that there should be no further communication by notes. He
said that decisions must be taken by consultation and not dictation and, finally, he said that
the father must give proper advance notice of the dates of his departure and return on business.
I have to say by way of final comment, that it does seem to me that it would have been perfectly
open to the judge to have made an order in this case (if not under subs (7), then clearly under
subs (6)), an order that would have incorporated those four regulatory provisions, defining it as
an order made under s 33(3)(c) which allows the court to: '… regulate the occupation of the
dwelling-house by either or both parties …” (pp.42)

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iii. “But with all of this in mind, and without at that stage any indication as to which
parent would have a residence order or what would be the outcome of the ancillary relief, I do
think it would have been undesirable to have parted them and to have made the order which
would have turned the father, who had a perfectly viable application for residence, out of the
home prior to making these substantive decisions.” (pp.43)
iv. NB: The trial judge heard oral evidence from the parties before making
his decision.

e. In Chalmers v Johns [1999] 1 FLR 392 (CA): in relation to an interim occupation order
to exclude the respondent from the property, the balance of harm test had not been met
so as to require a mandatory occupation order. When considering whether to exercise
the residuary discretion to make the interim order, it was determined that it had been
inappropriate/wrong to make the order. The Court stated as follows:
i. “So it seems to me that in approaching its function under this section, the court has first to
consider whether the evidence establishes that the applicant or any relevant child is likely to
suffer significant harm attributable to the conduct of the respondent if an order is not made. If
the court answers that question in the affirmative, then it knows that it must make the order
unless balancing one harm against the other, the harm to the respondent or the child is likely to
be as great. If, however, the court answers the question in the negative, then it enters the
discretionary regime provided by subs (6) and must exercise a broad discretion having regard to
all the circumstances of the case, particularly those factors set out in the statutory checklist
within subparas (a)–(d) inclusive.” (pp.396)
ii. “It is apparent from those brief references the judge never clearly focused upon the alternative
nature of these adjoining subsections. She seems to have treated them as if both were applicable
as it were simultaneously to the facts of the case. I hazard that had she directed herself more
closely to the statutory language, she would have seen that this was not a case that came
anywhere near subs (7). I do not understand how, had she looked at it in that light, she could
have satisfied herself that either the applicant or A was likely to suffer significant harm
attributable to the conduct of the respondent if an order under subs (3) were not made.”
(pp.396)
i. "…The gravity of an order requiring a respondent to vacate a family home, an order overriding
proprietary rights, was recognised in cases under the Domestic Violence and Matrimonial
Proceedings Act 1976 and a string of authorities in this court emphasise the Draconian nature
of such an order, and that it should be restricted to exceptional cases. I do not myself think
that the wider statutory provisions contained in the Family Law Act 1996 obliterate that
authority. The order remains Draconian, particularly in the perception of the respondent. It
remains an order that overrides proprietary rights and it seems to me that it is an order that is
only justified in exceptional circumstances." (pp.397)
ii. “Of course there will be cases where the character of the violence or the risk of violence and the
harm to the victim or the risk of harm to the victim is such that the Draconian order must be
made, must be made immediately, and must be made at the earliest interlocutory stage. But I
simply do not see this case on its facts approaching anywhere near that category. Conventionally
the court has given careful consideration to the control of domestic disharmony by the imposition
of injunctive orders before resorting to the Draconian order… It seems to me that the
disharmony, such as it was, was of a character perfectly capable of control by injunctive order.
For all those reasons, I believe that the judge misdirected herself in law and equally misdirected
herself in the exercise of her discretion…”