Occupation Orders

Family Law Week publishes an interesting article this week on the recent case of Grubb v Grubb which concerns an appeal against the granting of an occupation order ousting a husband from the matrimonial home. The article appears here and the transcript here. I am going to take a slightly different slant on that case than the author on FLW, who is critical of the decision of the Court of Appeal to uphold the occupation order and who suggests that the case has significance for occupation order applications without allegations of violence, a significant which he fears is in danger of passing unnoticed.

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Under s33 FLA 1996 the court has a discretion to make an occupation order even in the absence of significant harm. In exercising that discretion s33(6) directs the court to consider all the circumstances including:

(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.

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The only relevance of significant harm in an application for an occupation order is that, where the court considers that the Applicant or a relevant child might suffer significant harm if no order were made, then the so-called ‘balance of harm’ test set out in s33(7) comes into play. That creates a potential obligation to make an order, rather than a mere discretion. An applicant for an occupation order may seek to make out his case either by satisfying s33(6) or s33(7)  (or both). The Grubb case was not argued under s33(7). Looked at in that light, we can see that insofar as the Grubb case is an example of an occupation order being made in the absence of any significant harm, it is not groundbreaking.

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An occupation order is of course quite separate from a non-molestation order – although they often co-exist. It may be trite to say it, but a non-molestation order deals with prohibiting acts of violence or harassment whilst an occupation order regulates the occupation of the home. Whilst there has to be a good reason to oust a party from their home there do not necessarily have to be grounds for a non-molestation order in order for an occupation order to be made. There is in fact no reference to violence or harassment in s33, although of course such behaviour would fall under ‘all the circumstances’ or ‘conduct’ or ‘significant harm’. It is a mistake to think that one can oust only a violent partner, although very clearly violence or harassment are very likely to form a main plank of the grounds for many an application and it may be difficult to justify an ouster in the absence of such conduct – depending of course on the facts.

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The transcript of judgment bears further reading. Although there are a number of specific findings relating to the Husband’s conduct upon which the court of first instance relied when granting the occupation order, it is clear from the full judgment that there was a significant course of conduct of oppressive behaviour on the part of the husband which the wife experienced as putting her under unbearable pressure whilst the family all remained within the one property.

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And yet the article characterises an occupation order as a ‘domestic violence remedy’ and queries whether this is really the kind of situation that it was intended to apply to. The suggestion made in the article is that a party ‘need not cite very much by way of conduct’ to justify an occupation order, and it seems to be said that cases of this kind are not what such a ‘domestic violence remedy’ was intended to cure. The writer of the article seems to me to fail to properly appreciate the extent of the Husband’s conduct as described in the judgment (and indeed the medical evidence which demonstrated the impact it was having upon the Wife), and in doing so seems (perhaps unintentionally) to minimise the significance of the non-violent conduct. In my view non-violent conduct of the kind described in the transcript falls fairly and squarely within most working definitions of domestic abuse that professionals in the field would use – which may range from controlling behaviour and mental or verbal abuse to physical attacks.

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I think that this is very much a case turning on its own facts. It may be unusual for occupation orders to be made in cases where the parties are wealthy, but that is precisely why the particular mix of factors is unlikely to be often repeated – for what the court was required to consider was whether to permit the toxic and harmful situation at home to continue in circumstances where an exercise of the court’s discretion in favour of the wife would not cause the Husband significant hardship. More often than not there is only one property and an ouster will mean the ousted party sleeping in the car or sofa surfing. There is a difficult balance to strike in such cases and often the lesser evil is leaving the parties in situ, albeit in very unpleasant circumstances. In this case the court could cure the impact of the husband’s ongoing conduct on the wife and children without causing any serious detriment or harm to him.

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Characteristic of this case was the fact that the wife did not seek to exaggerate the seriousness of the conduct of the Husband by asserting any s33(7) significant harm, and nor did she seek necessarily to oust the husband if alternative accomodation were provided by him for herself and the children. The Husband had within his control the parties substantial financial resources and had it within his power to make this happen without the need for him to leave. Had the application been for the husband to be excluded from his own home for reasons outwith his control and without recourse to suitable accomodation to meet his own needs, the outcome no doubt would have been very different, and properly so.

 

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Domestic Violence Against Men

The One Show tonight ran a piece on men as victims of domestic violence, including a brief interview with Erin Pizey founder of the women’s refuge movement. This issue is not often enough highlighted, and as reported on the show there are many reasons why it is likely to be underreported – both embarrasment and fear of not being believed or of counter accusations. Services for men are patchy, but the information on the one show website gives some helpful links and information.

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What wasn’t helpful about the piece was the way it skated over the source of its statistics which were used in a way that suggested that men were victims as often as they were perpetrators, which anything more than a superficial understanding of patterns of violent and abusive behaviour would tend to suggest is unlikely to be the case (although it’s impossible to be certain because underreporting is probably prevalent regardless of gender or sexuality albeit for slightly different reasons. However, as the hidden hurt website rightly points out the numbers affected is not the key issue: the important point is that it happens to men too, and whether or not a victim is male or female they should be able to access support. Even for women there are stigmas attached to admitting you are a victim of domestic violence, it is an extraordinarily difficult acknowledgment because most victims’ self-esteem has been worn right down.

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I didn’t find the whole ‘domestic violence hijacked by the feminist movement’ line terribly helpful. There was a time not so long ago when it was considered socially acceptable to perpetrate violence on a female spouse or partner and finding the support necessary to break free of an abusive relationship was very difficult, and when attitudes to divorce were very different. It’s easy to forget that it is the work of the women’s movement and campaigners in this field that has in part brought about a fairly radical shift in attitudes about domestic violence against women (alongside general social shifts), so that women are now able to report and escape from violence or abuse. Equivalent work now needs to be done to change attitudes in the case of male victims, but that should not detract from the validity of the work done thus far to highlight the problem of male on female violence.

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Anecdotally, I often represent male clients who are or say they are victims of domestic abuse, although they are rarely the applicant for injuctive relief. Most often they are responding to an application by their wife or partner who has ‘got in first’, thereby putting hubby on the back foot. Sometimes these appear to be to some degree or another mutually abusive generally dysfunctional relationships, but sometimes it is clear that the sole perpetrator is the woman. But experience of talking to male clients at court (and to male litigants in person who I am opposing) and their reports of how they have experienced the process of alleging violence by a female partner suggests that many men are fearful of the consequences of seeking help – they do not expect to be believed – by family, the police, the family court, the CAFCASS Officer – and they do not expect to be supported.

So in spite of my minor griping, good on The One Show for being part of the process of moving attitudes forward in respect of male victims of domestic violence.

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Sunday night telly – a bussman’s holiday

Just spent a depressing evening watching a re-run of the Fiona’s Story screenplay on BBC1, about a wife who discovers her husband has been viewing child pornography. On the whole this is a really interesting look at a difficult subject, but two things really didn’t ring true for me (one perhaps more trivial than the other).

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The plot revolves around a perfect middle class family and a happily married wholly ‘normal’ couple. Except that by the end of the programme its apparent he’s a man with an extremely controlling personality who is fundamentally unable to accept responsibility for his actions, who has issues with his self-worth and who takes out his sense of inadequacy on other people (whether that is via child porn or by lashing out and assaulting his wife at times of extreme stress). I can’t suspend my disbelief far enough to accept that this character was ever the perfect husband.

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And secondly – visually the social worker was a complete stereotype: a rotund, scarf wearing, beaded lady (that’s beaded not beaRded). Also, she had a bedside manner of a dead fish and asked a raft of THE MOST pointless questions in deadpan style, the answers to which I would have thought ought to have prompted the continuation of the chlid protection investigation that this was presumably supposed to be a dramatisation of, rather than the closing of the file.

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