Keeping a parent and children in the family home

The legal issue

When a relationship breaks down and both adults have a connection to the same home, the question in front of the court is not who owns it. It is who may occupy it, on what terms, and for how long, while everything else is worked out. Family Law Act 1996 s.33(3) sets out what an occupation order can do: enforce the applicant's entitlement to remain in occupation, require the respondent to let the applicant enter and remain, regulate the occupation of the home by either or both parties, prohibit, suspend or restrict the respondent's own right to occupy, restrict or terminate home rights, require the respondent to leave the home or part of it, and exclude the respondent from a defined area in which the home is included.

Children in the household are not parties to that application, but they are central to it. Any child who is living with, or might reasonably be expected to live with, either party is a relevant child under Family Law Act 1996 s.62(2), and harm to that child is weighed directly under s.33(6)(c) and under the balance of harm test in s.33(7). That is the mechanism by which an application about a house becomes an application about whether children have to move.

This article concerns the type of situation in which two adults have been living in a shared family home, with one or both having a legal right to occupy it. The application may arise where one adult says that the other’s behaviour has made continued shared occupation unsafe or unworkable, and where children are living in, or would reasonably be expected to live in, the household. The evidence will usually address the effect of the household circumstances on the children’s day-to-day well-being, alongside the practical housing options realistically available to each adult if the court regulates or ends their occupation of the home. The court’s decision depends on the evidence in the individual case.

The law this rests on

• Family Law Act 1996 s.33 (occupation orders where applicant has estate or interest etc. or has home rights) - in particular s.33(3), s.33(6), s.33(7) and s.33(10)
• Family Law Act 1996 s.36 (one cohabitant or former cohabitant with no existing right to occupy) - in particular s.36(10) on duration
• Family Law Act 1996 s.40 (additional provisions that may be included in certain occupation orders)
• Family Law Act 1996 s.42 (non-molestation orders) - in particular s.42(2)(b) and s.42(4A)
• Family Law Act 1996 s.45 (orders made without notice) - in particular s.45(1), s.45(2) and s.45(3)
• Family Law Act 1996 s.47 (arrest for breach of order) - in particular s.47(2) and s.47(3)
• Family Law Act 1996 s.62 (meaning of cohabitants, relevant child and associated persons) - in particular s.62(2) and s.62(3)
• Family Law Act 1996 s.63(1) (interpretation of Part IV - harm, health, development, ill-treatment, dwelling-house)
• Children Act 1989 s.1(1) (the child's welfare is the court's paramount consideration)
• Domestic Abuse Act 2021 s.1 (definition of domestic abuse, including s.1(4) on economic abuse)
• Domestic Abuse Act 2021 s.3 (children as victims of domestic abuse)

How we approached it

The application is built in the order the statute takes it, because that order is what decides these cases.

The first question is entitlement, not merit. Family Law Act 1996 s.33(1) allows an application by a person who is entitled to occupy the home by virtue of a beneficial estate or interest, a contract, or an enactment giving a right to remain in occupation, or who has home rights in relation to it, where the property is or at any time has been the home of that person and of another person with whom they are associated, or was intended by them to be their home. Whether people are associated is read with Family Law Act 1996 s.62(3), which covers spouses and civil partners, cohabitants and former cohabitants, people who live or have lived in the same household otherwise than as employee, tenant, lodger or boarder, relatives, people who have agreed to marry, and people who have or have had an intimate personal relationship of significant duration. Where the person applying has no existing right to occupy and the parties are cohabitants or former cohabitants, the application belongs under s.36 instead. That distinction is worth settling before anything else, because the orders available and their maximum length differ: an order under s.36 must be limited to a specified period not exceeding six months and may be extended on one occasion for a further specified period not exceeding six months (s.36(10)), whereas an order under s.33 may be made for a specified period, until the occurrence of a specified event, or until further order (s.33(10)).

The children enter through the definition of a relevant child in s.62(2): any child living with or who might reasonably be expected to live with either party, any child in relation to whom an order under the Children Act 1989 or the adoption legislation is in question in the proceedings, and any other child whose interests the court considers relevant. Getting the children properly within that definition on the papers is what allows the evidence about them to carry weight.

The court then works through two provisions, and the order in which it does so is fixed by the wording. Section 33(7) is a duty. If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order containing one or more of the s.33(3) provisions is not made, the court shall make the order, unless it appears that the respondent or any relevant child is likely to suffer significant harm if the order is made, and that the harm likely to be suffered in that event is as great as, or greater than, the harm attributable to the respondent's conduct that would otherwise be suffered. That is the balance of harm test. Its structure matters. The applicant has to get over the first limb before any balance is struck at all, and the comparison in the second limb is between two harms, not between two inconveniences.

What counts as harm is defined, and the definition is wider than people expect. Family Law Act 1996 s.63(1) defines harm, in relation to a person who has reached eighteen, as ill-treatment or the impairment of health, and in relation to a child as ill-treatment or the impairment of health or development. Development means physical, intellectual, emotional, social or behavioural development. Health includes physical or mental health. Ill-treatment includes forms of ill-treatment which are not physical and, in relation to a child, includes sexual abuse. So the evidence is not confined to physical injury, and material about a child's behaviour, sleep, schooling or emotional state is evidence of harm within the section rather than background colour.

If the s.33(7) duty is not engaged, the application does not fail; it is decided under the discretion in s.33(6). There the court must have regard to all the circumstances, including the housing needs and housing resources of each of the parties and of any relevant child, the financial resources of each of the parties, the likely effect of any order - or of any decision not to exercise the s.33(3) powers - on the health, safety or well-being of the parties and of any relevant child, and the conduct of the parties in relation to each other and otherwise. Evidence about where each adult could realistically live if excluded is not a side issue under s.33(6)(a). It is the first item on the statutory list, and an application that does not deal with it squarely invites the court to fill the gap against the applicant.

The behaviour is set out by reference to a definition rather than as a narrative. Domestic Abuse Act 2021 s.1 defines domestic abuse between people aged 16 or over who are personally connected, and defines abusive behaviour as physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, or psychological, emotional or other abuse - adding expressly that it does not matter whether the behaviour consists of a single incident or a course of conduct. Economic abuse is defined in s.1(4) as behaviour with a substantial adverse effect on the other person's ability to acquire, use or maintain money or other property, or to obtain goods or services. Section 3 of the same Act treats a child who sees or hears, or experiences the effects of, the abuse, and who is related to either person, as a victim of domestic abuse in their own right. Those provisions supply the vocabulary for describing the children's position without overstating it.

Where the risk will not wait for a hearing on notice, s.45(1) allows the court to make an occupation order or a non-molestation order even though the respondent has not been given the notice that rules of court would otherwise require, if the court considers it just and convenient to do so. Section 45(2) requires the court, in deciding that, to have regard to all the circumstances including any risk of significant harm to the applicant or a relevant child attributable to the respondent's conduct if the order is not made immediately, whether the applicant is likely to be deterred or prevented from pursuing the application if it is not, and whether the respondent is aware of the proceedings but is deliberately evading service. An order made that way is provisional in a real sense: s.45(3) requires the court to give the respondent an opportunity to be heard at a full hearing as soon as just and convenient.

Enforcement belongs in the order rather than in a later application. Where the court makes an occupation order and it appears that the respondent has used or threatened violence against the applicant or a relevant child, s.47(2) requires the court to attach a power of arrest to one or more provisions of the order unless it is satisfied that the applicant or child will be adequately protected without one. Where the order was made without notice under s.45(1), s.47(2) does not apply, but s.47(3) allows a power of arrest where violence has been used or threatened and there is a risk of significant harm if the power is not attached immediately.

Two further things are better dealt with in the same application than in a second one. Section 42(4A) requires a court considering whether to make an occupation order to consider whether it should exercise its power under s.42(2)(b) to make a non-molestation order of its own motion. This means the court can consider protective and housing issues together where the circumstances justify it. And s.40 allows the court, on or at any time after making an occupation order under s.33, to impose obligations about the repair and maintenance of the home, the discharge of rent, mortgage payments or other outgoings, to order periodical payments in respect of the accommodation, to grant either party possession or use of the furniture and contents, and to order a party to take reasonable steps to keep the home and its contents secure. An occupation order that leaves the mortgage unaddressed usually creates the next dispute.

Where the children's living arrangements are also in issue they are dealt with under the Children Act 1989, where s.1(1) makes the child's welfare the court's paramount consideration when the court determines any question with respect to the upbringing of a child. It is worth being clear that s.1(1) does not govern the occupation order itself. Under Part IV of the Family Law Act 1996 a child's interests are weighed through the relevant child provisions in s.33(6)(c) and s.33(7); they carry real weight, but they are not paramount. Running the two applications alongside each other, and being precise about which test applies to which, reads far better than treating the whole thing as one welfare question.

On timing, an application made without notice is generally listed the same day or the next working day, a hearing on notice within a few weeks, and a contested final hearing with oral evidence some months after that, depending on the court's list. Those are listing realities rather than entitlements, and no statute fixes them.

The outcome

The orders open to a court on an application of this kind are those listed in Family Law Act 1996 s.33(3): an order enforcing the applicant's entitlement to remain in occupation, requiring the respondent to permit the applicant to enter and remain, regulating the occupation of the home by either or both parties, prohibiting, suspending or restricting the respondent's right to occupy, restricting or terminating home rights, requiring the respondent to leave the home or part of it, or excluding the respondent from a defined area in which the home is included. Any of those may be made for a specified period, until the occurrence of a specified event, or until further order (s.33(10)). The court may add the financial and practical provisions in s.40, must consider a non-molestation order of its own motion under s.42(4A), and must consider a power of arrest under s.47(2) where violence has been used or threatened. It may equally refuse the application, or make a narrower order regulating occupation rather than excluding anyone.

Which of those a court chooses is governed by the duty in s.33(7) and, where that duty is not engaged, by the discretion in s.33(6). An occupation order does not decide who owns the home, does not decide where the children live, and does not last indefinitely.

In an application of this kind, the court may make a tailored occupation order regulating who may occupy the home and, where justified by the evidence, requiring one adult to leave or restricting their right to return. The court may also address practical issues connected with the home, such as responsibility for rent, mortgage payments, household outgoings, furniture or security. Where protection is required, the court may consider a non-molestation order alongside the occupation order and may consider whether a power of arrest is appropriate where the statutory conditions are met. The precise order, the statutory route taken and any additional protections always depend on the evidence before the court.

Outcomes of this kind turn entirely on the evidence in the individual case. Nothing here is a prediction or a promise about any other case.

What to take from this

• An occupation order decides occupation, not ownership. Family Law Act 1996 s.33(3) lists what the order can do - regulate occupation, require someone to leave, exclude them from an area around the home - and none of it changes who owns the property.
• The balance of harm test in Family Law Act 1996 s.33(7) is a duty, not a discretion. Where significant harm attributable to the respondent's conduct is likely without an order, the court shall make one unless the harm to the respondent or a relevant child from making it would be as great or greater.
• Harm is defined far more widely than injury. Family Law Act 1996 s.63(1) includes the impairment of health and, for a child, of development, where development covers emotional, social and behavioural development, and ill-treatment includes non-physical forms.
• The children are already in the case. Family Law Act 1996 s.62(2) makes any child living with, or reasonably expected to live with, either party a relevant child, so the effect on them is weighed under s.33(6)(c) and s.33(7).
• Deal with the housing evidence first, not last. Family Law Act 1996 s.33(6)(a) puts the housing needs and housing resources of both parties and of any relevant child at the top of the list the court must consider.
• Protection, money and enforcement belong in the same application. Family Law Act 1996 s.42(4A) requires the court to consider a non-molestation order of its own motion, s.47(2) requires it to consider a power of arrest where violence has been used or threatened, and s.40 lets it deal with rent, mortgage and outgoings at the same time.
• An order made without notice is not the end of the process. Family Law Act 1996 s.45(1) allows one where it is just and convenient, but s.45(3) requires the court to give the other person an opportunity to be heard at a full hearing as soon as just and convenient.