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two-tests
General Disclaimer: Nothing presented constitutes legal advice and the McKenzie Friend UK Network is not a legal entity or in anyway claims to be a 'legal resource'. The resource guide is supported by McKenzie Friends and Litigants in person for Litigants in Person in Family Court. McKenzie Friends provide layperson support as an informed friend under the Family Court Practrice Guidance of 2010. All information is published under the spirit of that guidance. For any corrections of the information, please contact the McKenzie Friend UK Network
 
Occupation Orders the TWO TESTS
 
 
 

THE TWO TESTS

The first question to be addressed in any section 33 application:

Is the applicant (or any relevant child)  likely  to suffer  significant harm  attributable to  the conduct of the respondent  if an order is not made?

 
The meaning of 'Significant Harm'
 
Proceed under the test a ts33(7) of the Act   Proceed under the test at s33(6) of the Act.
 
 
 
 
The Core Criteria Test Continued.

Case law form 2009 in the Case of Grubb v's Grubb also gave more clarification of the considerations of the court:

a) An exclusion order is a grave order but  can  be made in the absence of violence or the threat of violence.

b) The judge ought to identify and weigh up all of the relevant features of the case, whatever their nature.

c) The relative vulnerability of the parties is relevant to the court deciding which party ought to be excluded from the property.

d) Where an occupation order is deemed necessary the court ought not simply to consider the behaviour of the parties and award occupation to the party who behaved less inappropriately; conduct is only one of the circumstances which falls to be considered.

e) S33(6) is drafted broadly - it requires the court to weigh up all the circumstances and grant an occupation order where those circumstances are extreme. Extreme circumstances do not, however, require violence.

f) An occupation order carries its greatest level of seriousness when it is made against a party to whom alternative accommodation is not readily available.

g) Harm caused (whether in assessment under s33(6) or s33(7)) need not be deliberately caused but a lack of intent may be a relevant consideration

 

 

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