Often emergencies arise in Family Law matters which require urgent and immediate steps being taken to protect our client by way of an emergency ex-parte injunction.
Injunction situations can arise 24 hours a day and in most cases we aim to have the matter brought to the attention of an emergency Judge within hours of being instructed.
Time is therefore nearly always of the essence in Ocupation Order applications and it is therefore essential that we get everything right, first time round, as there will rarely be any second chances.
In the second of this three part article, Cyrus Mansouri explores the law applicable to ex-parte emergency Occupation Injunction Orders in English courts. In part three we will look at Ex-Parte applications brought to protect the rights and welfare of children, pursuant to section 8 of the Children Act 1989.
What is Occupation Orders
An Occupation Order is an Order of the court stating who can and who cannot occupy domestic premises.
It is usually brought alongside an application for a Non-Molestation Injunction and is an application asking the District Judge to make an Order excluding your spouse or unmarried partner from entering or cohabiting in the family home.
Such an application can be brough Ex-Parte in an emergency or On Notice in all other cases.
It is a very serious application because in essence, it can exclude your spouse or partner from living at the family home, even though they may be the sole owner of that property.
There are two tests to which the court must have regard when deciding whether to grant an application for an Occupation Order:
The two tests
- The first is known as the ‘balance of harm test‘ because it requires the court to balance the harm caused to the applicant, respondent and any relevant children if the order were or were not to be made.
Where the applicant is entitled to occupy the dwelling house or a spouse or former spouse of the respondent and there would be a risk of the applicant or relevant child suffering significant harm, attributable to the respondent, if the order was not made, greater than any harm caused to the respondent or relevant child if the order were made then the court have a duty to grant the order (FLA 1996, s 33(7), s 37(4)).
However; where the applicant is not entitled to occupy the property and a cohabitant or a former cohabitant then the court must simply ‘have regard’ to the balance of harm test (s 36(7)(b); s 38(4)(e)).
- The second test is usually referred to as the ‘core criteria‘, which the court may have regard at any time when granting an occupation order, even if they have found against the applicant on the balance of harm test.
The content of the core criteria depend upon the applicant’s entitlement to occupy the property and their relationship with the respondent.
If the applicant is entitled to occupy the property then the core criteria are:
(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 well-being of the parties and of any relevant child; and
(d) the conduct of the parties in relation to each other and otherwise.
If the applicant is not entitled but a spouse or former spouse of the respondent then the court may have regard to some additional factors including the length of time since the parties lived together, the length of time since the marriage was formally ended and any ongoing Ancillary Relief applications or disputes as to the ownership of the property.
If the applicant is not entitled but a cohabitant or former cohabitant of the respondent then the court may also have regard to the nature and length of the parties’ relationship, whether there are or have been any relevant children, the length of time since the parties’ relationship came to an end and whether there are any ongoing Schedule 1, Children Act 1989 maintenance applications.
The applicant must file at court a sworn Affidavit setting out why they think they should be granted an Occupation Order.
In an ex-parte hearing most courts will be extremely unlikely to hear lengthy legal argument and the court will be reluctant to remove a respondent from a property in which they live, in the absence of compelling reasons.
This is where the merits of the case must be carefully examined before such an application is made and where a decision is made to proceed with an Ex-Part Occupation Order application, the affidavit will be crucial to the chances of that application succeeding.
This is where expert Legal Assistance will be priceless. Even where it may seem as though there is merit in the application being granted ex-parte the applicant’s best case should always be made out in the affidavit.
This will form the basis of application at the return hearing (usually a week later) when the Respondent will also be present at the court and able to respond to the issues raised.
The suitability of the respondent’s current accommodation will be decisive in whether an order is granted. It will also have a direct impact upon the duration of the order, and the urgency with which the court will deal with the ex-parte Occupation Order application.
The Applicant needs to address the the core criteria clearly and in detail in the Occupation Order affidavit. A well drafted and concise affidavit can make the difference between a successful application and an unsuccessful application.
Terms of occupation orders
An occupation order regulating the occupation of the dwelling home can exclude the respondent from the whole of the property or just a part of it.
In some cases the court may grant an occupation order confined to a zone of safety around a particular part of the property rather than the whole of the property. If such an order is sought, the affidavit should set out clearly how this is possible.
It can be useful to provide the court with a floor plan of the property, exhibited to the affidavit in support of an occupation order.
Duration of an occupation order
The duration of an occupation order will, like the non-molestation order, largely depend upon the facts of the particular case.
That there are strict rules in occupation orders relevant to the maximum periods of time which an occupation order can be granted, dependent upon the applicant’s entitlement to occupy the property and their relationship with the respondent.
When consulting us about an occupation order, you should bring with you as much information as possible to help us to assess your circumstances accurately.
An ex-parte occupation order is not something to be embarked on lightly, however; where appropriate grounds exist, we can move fast to secure your occupation of your home, exclude your violent or threatening partner and provide protection from the courts and police to you and where appropriate your children.
When assessing your situation we need to consider all the surrounding circumstances including:
- Determining your entitlement to occupy the property
- Find out whether the respondent is in occupation of the property and the legal nature of their ownership or occupation
- Consider the length of the relationship
- Find the appropriate section under which you must apply, as this differs depending on the nature of your relationship with the Respondent
- Remind you that a non-entitled applicant who is associated in a way other than by being a spouse, former spouse, co-habitant or former cohabitant of the respondent is not able to apply for an occupation order
- Assessing the balance of harm test and whether it is appropriate to you
- Preparing the affidavit including all the factual reasons relevant to the core criteria why the occupation order should be made
- Determine whether it is appropriate to prohibit the respondent entering or attempting to enter the property on an ex-parte basis;
- Consider whether you would be sufficiently protected by a zone of safety within the property
By nature an ex-parte application places judges in an uncomfortable position. It is therefore crucial that if such an application is to have any chance of success, it is prepared by experts with a proven track record of dealing with similar circumstances.
To assess whether you could be entitled to an Occupation Order, contact us for a free telephone consultation on 020 8401 7352 or to book an appointment.