On appeal from an occupation order excluding a father from a high-value family home under FLA 1996 s33(6), Poole J held that where occupation and interim child arrangements are inextricably linked, a judge is not required to apply the Children Act 1989 paramountcy principle or welfare checklist to the occupation decision itself, but must have the likely shape of revised child arrangements in contemplation when weighing s33(6)(c) (impact on the health, safety and well-being of the parties and any relevant child). Reading the ex tempore judgment below as a whole, the appellate court found the first instance judge had done so notwithstanding the absence of express sequencing, and dismissed the appeal on all grounds, including a ground on which permission was in fact granted.
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A ten-month court-imposed partial nesting arrangement — under which both estranged, high-conflict parents continued to occupy the family home, alternating periods away — was terminated by HHJ Middleton-Roy, who excluded the father under FLA 1996 s33(6) and varied interim contact accordingly, relying on a Cafcass social worker's unambiguous recommendation that continued co-habitation was harming both children and the mother. There had been no fact-finding on the mutual allegations of coercive and alienating conduct; the judge treated conduct as neutral and decided the case on s33(6) discretion rather than the s33(7) significant-harm gateway. The father appealed, arguing the judge should have approached the case through CA 1989 s1(3) as well as s33, and that his welfare-relevant evidence (his own alienation and health concerns, and aspects of the social worker's evidence) had been disregarded.
Poole J granted permission to appeal on the ground concerning the s33/s1(3) interrelationship, finding the point had real prospects of success, but dismissed the appeal on that ground on the merits after reading the ex tempore judgment as a whole and concluding the first instance judge had plainly had the likely revised child arrangements in contemplation despite addressing them only after the occupation decision. Permission was refused on the remaining grounds (failure to consider material evidence, failure to stay pending Children Act proceedings, and Article 8 disproportionality), the court finding none had a real prospect of success. The judgment confirms that s33(6) and s33(7) FLA 1996 do not import the CA 1989 welfare checklist, that an occupation order can properly terminate a nesting arrangement even absent any conduct finding where continued co-habitation is itself the harm, and that disparity of financial resources (here, the father's far greater capacity to secure alternative accommodation) is a legitimate factor in deciding which party should be excluded.
Litigants involved in nesting arrangements or occupation order applications should note that a judge does not have to run a full welfare-checklist analysis before excluding a party from the family home, even where children are affected — but the court must show, on a fair reading of the judgment as a whole, that it had the consequential child arrangements in mind. Absence of a finding of "bad conduct" does not prevent an occupation order being made; ongoing high conflict and its harmful effect on children can be sufficient on its own under s33(6). Evidence from an allocated social worker or Cafcass officer recommending separate parenting carries significant weight. The party with materially greater financial resources is more likely to be the one required to leave.
This case illustrates how closely occupation order applications and child arrangements can become entangled, and how a party without representation could easily miss the argument (as the father here did at first instance) that the two regimes need to be read together. A McKenzie Friend can help a litigant identify and evidence the link between housing and welfare issues, gather and present Cafcass/social work evidence effectively, and understand that an absence of a conduct finding does not defeat an occupation order application where cohabitation itself is causing harm.
Occupation order
A court order under FLA 1996 s33 that regulates who can live in a family home, and can require one party to leave it entirely.
Nesting arrangement
A child arrangement where the children stay in one home and the parents rotate in and out, rather than the children moving between two households.
s33(6) FLA 1996
The court's broad general discretion to make an occupation order, weighing housing needs, financial resources, likely effect on health/safety/well-being, and conduct.
s33(7) FLA 1996
A stricter test that obliges the court to make an occupation order if a party or child would otherwise suffer significant harm attributable to the other party's conduct, unless the harm to the respondent would be as great or greater.
Paramountcy principle
The Children Act 1989 s1 rule that a child's welfare is the court's paramount consideration in decisions about their upbringing — held here not to apply directly to an occupation order decision under FLA 1996.
Welfare checklist
The list of factors at CA 1989 s1(3) (wishes and feelings, needs, likely effect of change, etc.) that a court must consider in child arrangements decisions.
Navigating court alone?
A McKenzie Friend can help you make sense of this in the context of your own case.
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