B v B (Occupation Order) and Chalmers v Johns Occupation Orders under the Family Law Act 1996
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B v B (Occupation Order) and Chalmers v Johns
Occupation orders under the Family Law Act 1996
Felicity Kaganas, Lecturer, Department of Law, Brunel University
INTRODUCTION
The Family Law Act 1996 reformed the law relating to remedies for victims of domestic
violence and was intended to provide better protection for them and their children.' In
particular, the Act was designed to make it easier for those subjected to violence to gain
occupation orders excluding the abuser from the home. What impact the legislative changes
make is in the hands of the judiciary2 and the Court of Appeal has now delivered the first
reported judgments applying the statutory provisions governing occupation orders. The
reasoning in these cases, both turning on the interpretation of, and the relationship between,
section 33(6) and (7) may have worrying implications for the safety and well-being of victims
of abuse. In addition, the new case-law raises questions about the protection of children.
BACKGROUND TO THE FAMILY LAW ACT 1996
A number of defects in the then existing law were identified by the Law Commission in its
report published in 1992.3 Of primary importance was the fact that the court's powers derived
from a number of different sources: there were three relevant statutes as well as the inherent
jurisdiction. This meant that different courts exercising different powers could grant different
remedies on the basis of different criteria. Another concern was that the statutory criteria were
being deployed in a way that involved principally an evaluation of the respondent's conduct
rather than an examination of its effects. Also, there was a risk that children's welfare was
being given insufficient weight.' The Law Commission saw its aims as being threefold. First, it
sought to remove the gaps and anomalies in the law with a view to formulating a clear and
comprehensive code. Secondly, it wished to maintain, and perhaps increase, levels of
protection. Finally, it aimed to avoid exacerbating hostility between the parties.'
In particular, in relation to applications for orders excluding one partner from the family
home, the Commissioners sought to fashion the law in a way that shifted the emphasis placed
by the courts on the conduct of the respondent. Without evidence of serious misconduct, the
trend was to deny an order. For example, the courts took the view that although the availability
of alternative housing was relevant,' they had 'no power to decide ... a case simply as a matter
of housing policy or on the basis that a child was being housed in unsatisfactory
accommodation.' This was because, they said, they had to apply the principles in section 1(3)
of the Matrimonial Homes Act 1983, and an order would not, therefore, be appropriate unless
the respondent's conduct warranted it. The Law Commission observed that the focus on
violence led the courts to ask 'whether the respondent's conduct [was] serious enough to justify
an order, rather than whether the effect upon the other people in the house [was] serious
The Law Commission was urged to improve the protection available (Law Corn No 207, Family Law Domestic
Violence and Occupation of the Family Home (HMSO, 1992), at para 2.30). See also Kewley, 'Pragmatism
before principle: the limitations of civil law remedies for the victims of domestic violence' (1996) 18 JSW&FL 1.
2 Hague and Malos, Domestic Violence, Action for Change (New Clarion Press, 1993), at p 98.
3 Op cit, n 1.
4 Op cit, n 1, at para 2.26 (v).
5 Op cit, n 1, at para 1.2.
Wooton v Wooton [1984] FLR 871. and Thurley vSmith [1984] FLR 875.
Wiseman v Simpson [1988] I FLR 490, at p 495. See also G v J (Ouster Order) [1993] I FLR 1008, at pp 1018-
1019.
8 Blackstock v Blackstock [1991]2 FLR 308, at p 311, and G v J(Ouster Order) [1993] 1 FLR 1008, at p 1023.](ViewImageLocal?handle=hein.journals/chilflq11&div=23&collection=&method=preview&ext=.png&size=3)
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B v B (Occupation Order) and Chalmers v Johns Occupation Orders under the Family Law Act 1996
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