The Balance of Harm Test in Occupation Orders

Part of: Occupation Order

Balance of Harm Test: Key Takeaway’s

• The balance of harm test occupation order framework comes from s33(7) of the family law act 1996 and is usually the court’s starting point.
• If the applicant or any relevant child is likely to suffer significant harm, the court generally must make an occupation order unless the respondent or a child would face equal or greater harm.
• If the harm test is not met, the court may still use the core criteria test under s33(6).
• Evidence about domestic abuse, housing, financial resources, and the child’s welfare is crucial.
• Urgent advice matters where there is threatened violence, ongoing risk, or a without-notice application.

Introduction to Occupation Orders and the Balance of Harm Test

An occupation order determines who can live in a property, who may be excluded from the family home, and whether one party can be kept out of a defined area. Occupation orders determine who can live in a property and are often applied for in domestic abuse cases because the order can provide immediate protection from ongoing domestic abuse.

This article focuses on s33 cases, where the applicant has a right to occupy, such as a sole or joint owner, tenant, or someone with a beneficial estate or matrimonial home rights. It applies to spouses, civil partnership cases, a civil partner, former civil partner, former spouse, and some cohabitants.

The balance of harm test is a legal mechanism in England and Wales. It is the legal test the court applies before using wider discretion.

Legal Framework: Family Law Act 1996 and Types of Occupation Orders

The Family Law Act 1996 provides different occupation order routes depending on the parties’ legal right to occupy. Section 33 applies where the applicant is entitled to occupy. Other sections can apply where existing rights are weaker or absent.

Examples include married joint owners of a home, cohabiting joint owners, or a spouse living in property legally owned by the other party. Both cohabitants can apply for a declaratory or regulatory order in suitable cases, but the available power depends on their specific circumstances.

An occupation order is different from a non molestation order. A non molestation order deals with violence, harassment, coercive control, and threats; breach can be a criminal offence. An occupation order is a regulatory order that restricts existing rights to occupation and can affect property rights temporarily.

What Is the Balance of Harm Test under s33(7) FLA 1996?

The balance of harm test assesses potential significant harm to parties. The test is defined under Section 33(7) of the Family Law Act 1996. In plain English, the court must determine if the applicant or children face significant harm if the order is not granted.

The balance of harm test requires a two-stage evaluation by the court:

1. Is the applicant or any relevant child likely to suffer significant harm attributable to the conduct of the respondent if the order is not made?
2. Would the respondent or a relevant child suffer equal or greater harm if the court makes the order?

If significant harm to the applicant is identified, the court generally must make an order. The court compares harm to the applicant and children versus harm to the respondent. This is the court’s duty, not just a preference.

Harm includes ill treatment and impairment of health or development. Significant harm includes impairment of health or development, including emotional and psychological harm from seeing domestic abuse. The court assesses risks of significant harm to the applicant and children, and the child’s welfare is a primary consideration in court decisions. The court prioritises children’s welfare in the balance of harm test.

How the Courts Apply the Mandatory Balance of Harm Test

At a hearing, the court considers evidence in sequence. First, it asks whether the applicant or any relevant child is likely to suffer significant harm. Then it asks whether that harm is harm attributable to the conduct of the respondent. Finally, it weighs the balance against harm to the other party.

Useful evidence includes:

• witness statements and messages;
• police reports and bail conditions;
• GP or hospital records about health and safety;
• photographs;
• school or social services records for a child;
• details of housing resources and financial resources.

For example, if a parent in Nottingham has primary care of two children and faces ongoing domestic abuse, while the respondent can stay with relatives nearby, the balance may fall in the applicant’s favour. But excluding an individual from their home can lead to significant upheaval for them, so the outcome of the balance of harm test significantly affects the parties involved.

The Core Criteria / Discretionary Test under s33(6)

If the balance of harm test is not satisfied, the court can still apply the core criteria test. This discretionary test looks at all the circumstances, including housing needs, housing resources, financial resources, the likely effect of making or not making the order on health safety or well being, and the conduct of the parties.

This discretionary power is different from the mandatory balance of harm route. Under s33(7), if the conditions are met, the court makes the order. Under s33(6), the court may make an order if it is just and reasonable.

The core criteria may help where:

• living together is intolerable but not enough to prove significant harm;
• one party is controlling access to rooms, money, or daily life;
• temporary arrangements are needed while property or child issues are resolved.

Chalmers v Johns [1999] and Case Law on the Balance of Harm

Chalmers v Johns is an important Court of Appeal case on occupation orders under the family law act. Its key point is simple: the judge must address the mandatory balance of harm test under s33(7) before turning to the discretionary test under s33(6).

Skipping straight to discretion is an error. The case also shows that appellate courts check whether judges properly identified significant harm, harm attributable to the respondent, and the correct statutory balance.

Later cases confirm that domestic abuse evidence, children’s welfare, and housing realities matter. Courts also describe exclusion orders as serious because they interfere with property rights and existing rights, so they usually require clear evidence and exceptional circumstances.

Occupation Orders, Joint Owners and Housing / Financial Factors

Being a joint owner does not mean you cannot be excluded. Where parties are cohabiting joint owners or joint tenants, the court can still make an occupation order if the balance of harm or core criteria justify it.

The court considers housing resources of both parties in its evaluation. It will look at alternative accommodation, rent, mortgage payments, savings, debts, benefits, school distance, work travel, disability needs, and other outgoings.

This matters because an occupation order can regulate a legal right to occupy without deciding ownership. It may last for a specified period, until a specified event, until a specific event, or until further order. Occupation orders can last indefinitely or for a specific time where the legislation and order allow, although many s33 orders are time-limited.

Interaction with Non-Molestation Orders and Ancillary Orders

A non molestation order protects against violence, threatened violence, stalking, harassment, and coercive conduct. An occupation order decides who stays in the home.

The same evidence may support both applications. For example, messages showing threats may support protection from contact and also show why the applicant is likely to suffer harm if the respondent remains.

The court can also make ancillary orders about mortgage, rent, repairs, utilities, and other outgoings. For example, the respondent may be excluded but ordered to contribute to the mortgage so the applicant and children keep stable housing while financial hardship is balanced against safety.

Practical Considerations: Evidence, Urgency and Without-Notice Applications

Without-notice applications can be made where warning the respondent may increase risk. To satisfy the balance of harm test urgently, the applicant needs sufficient evidence, even if incomplete.

Useful urgent evidence includes recent police incident numbers, short statements, GP letters, photographs of injuries, screenshots, and details of where each party can stay. If the respondent is already out of the home because of bail or a protection notice, urgency may look different.

Applicants should also consider interim options. A court might order temporary exclusion from a defined area, regulate use of rooms, or set short-term arrangements until a fuller hearing.

Taking the First Step: Free Consultation on the Balance of Harm Test

If you are worried whether you have sufficient evidence to satisfy the balance of harm test then pick up the phone and call us to discuss your options. Contact us on 0330 094 5880 to arrange your free, no‑obligation consultation or book a time that suits you using our online appointment system. Our family lawyers in Nottingham as well across York, Newcastle, Coventry, Cardiff, Northampton, Oxford & London work around the clock and will be able to provide you with the advice and you need at a time to suit your needs.

Whether you are looking to obtain protection by way of non-molestation orders or occupation orders, our specialists provide clear, practical advice at every stage.

Frequently Asked Questions: Balance of Harm Test

Does the balance of harm test always have to be applied first?

Yes. In s33 cases, the court should apply the balance of harm test before the discretionary core criteria test. That is the main lesson from Chalmers v Johns.

What counts as “significant harm” for the balance of harm test?

Significant harm is more than ordinary upset. It can include physical injury, serious emotional harm, psychological harm, ill treatment, or serious impairment of a child’s development.

Can the court make an occupation order if I am not a joint owner or tenant?

Yes, depending on your status. A spouse, civil partner, former spouse, former civil partner, or some cohabitants may be able to apply under other parts of the Family Law Act 1996.

How long can an occupation order last?

It depends on the section used and the circumstances. Orders may be for a specified period, until a specified event, or until further order, with extension possible where risk continues.

Will the occupation order decide who owns the property?

No. An occupation order regulates occupation of the property. It does not finally decide ownership, beneficial interests, or long-term financial claims.