Chalmers v Johns
An occupation order excluding a person from the home is a draconian order, and the court must first apply the balance of harm test and then consider all the circumstances.
Facts
Mr Chalmers and Ms Johns lived together for about 25 years and had a young child. The relationship was volatile, with minor violence on both sides. Ms Johns left the home with the child and moved into temporary accommodation, and applied for an occupation order requiring Mr Chalmers to leave the home so that she could return. The judge made an interim occupation order, and Mr Chalmers appealed.
Legal principle
The Court of Appeal allowed the appeal. Thorpe LJ said that an occupation order overriding proprietary rights is a draconian order, which should be restricted to exceptional cases. Under section 33 of the Family Law Act 1996, the court must first ask whether the applicant or a child is likely to suffer significant harm attributable to the conduct of the respondent if the order is not made, and, if so, whether that harm is greater than the harm the respondent or a child would suffer if it is made. If the balance of harm does not require an order, the court has a discretion, considering all the circumstances. Here, the level of violence was low, and the case did not justify an order.
Related cases on domestic abuse and occupation orders
- B v B (Occupation Order) [1999] 1 FLR 715
- F v M [2021] EWFC 4
- G v G (Occupation Order: Conduct) [2000] 2 FLR 36
- Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448
- Re L (A Child) (Contact: Domestic Violence); Re V; Re M; Re H [2001] Fam 260
- Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732
- Nwogbe v Nwogbe [2000] 2 FLR 744
- Opuz v Turkey (2010) 50 EHRR 28
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
