Category: Court Welfare Reports

Am I eligible to apply for an occupation order?

An occupation order can enforce safe living arrangement for victims of domestic abuse.

If you have suffered domestic abuse you may feel unsafe living in the same house as your perpetrator. An occupation order can be used to provide you with a safe place to live by regulating who can live in your family home.

How can an occupation order be used?

Occupation orders are flexible and can be used in a variety of ways to offer victims protection. Some of the commonest ways in which occupation orders are used in domestic abuse cases include:

  • To exclude someone from the family home.
  • To enforce the right to remain in or return to the family home.
  • To set out who pays for expenses relating to the family home.
  • To exclude someone from a defined area around the family home.

Eligibility to apply for an occupation order

In order to be eligible to apply for an occupation order you must be ‘associated’ with the other person in one of the following ways:

  • Married, in a civil partnership, or engaged.
  • Previously married or in a civil partnership.
  • Cohabiting in a family scenario.
  • In an intimate physical relationship for a significant length of time.
  • Have parental responsibility for the same child.

Occupation orders are only applicable in very serious cases as they can grant access to a property that a victim does not have a legal entitlement to and deny access to a perpetrator with legal entitlement.

The court will assess whether an occupation order is suitable for your individual case by applying two tests. The tests are called the balance of harm test and the core criteria test. These tests take into consideration the health, safety and well-being of the victim and any children involved and their related housing and resource needs.

If you require help, support, or legal advice relating to domestic abuseor occupation orders, please give our team of family law specialists here at Lund Bennett a call on 0161 927 3118.

Court of Appeal overturns decision as focused too much on ‘gender discriminatory’ guidance in Payne v Payne – change the court’s approach to relocation cases

The latest Court of Appeal decision on international relocation (Re F (International Relocation Cases) [2015]) has overturned an experienced judge’s decision because they focussed too much on the Payne criteria and not enough on the overall assessment of welfare. In the first instance in Re F, the mother was granted leave to remove the child to Germany. Lord Justice McFarlane held that the harm of separating the child from their father had not been properly evaluated.

Prior to this decision, the guidance in Payne v Payne was the first thing to be considered by a judge in hearing an application for relocation. Payne v Payne was a Court of Appeal decision in 2001 in which a father’s appeal against the removal of his child to New Zealand was rejected. The guidance given in Payne referred to questions which needed to be asked in relocation cases such as:

– Is the relocating parent’s application genuine, realistic and well researched?
– Is the parent’s opposition motivated by genuine concern or an ulterior motive?
– What would be the extent of detriment to the father and his future relationship with the child if the application were granted?
– What would be the impact to the relocating parent of the refusal of her realistic proposal?

The guidance in this case has been criticised for placing too great an emphasis on the wishes and feelings of the relocating parent and that the guidance usually assumed that the mother was the caring parent and usually the one who sought to relocate.

The guidance in Payne v Payne has been described as a gender discriminatory approach and Lord Justice McFarlane stated in Re F ‘in the decade or more since Payne it would seem odd indeed for this Court to use guidance which is out of context which was intended is redolent with gender based assumptions as to the role in relationships with a child’. Lord Justice McFarlane went on to say ‘the questions identified in Payne may not be relevant on the facts of an individual case and the Court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it.’

The effect of Re F is not that the guidance Payne v Payne had been overturned or set aside, instead it has been re-aligned as just one of the decisions based upon the welfare of the child. The guidance is still useful in some cases, however Re F clarifies that a court should never base its entire decision upon the questions identified in Payne v Payne. Re F shows the courts acknowledging the importance of the erosion of the quality of the relationship between the relocated child and the left behind parent.

This is a highly emotional area of family law for the entire family. Whether the relocation of a child is to another continent or in Europe, these cases present sensitive issues. It is essential to seek advice early, if possible at the time of separation as early decisions may affect how things turn out later on. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. We can talk you through your options and help you to decide what is the best way to proceed. Please contact us on 0161 927 3118 for a free 20 minute consultation.

In more than 75 per cent of cases, Judges accept court welfare reports

According to a new study by Cafcass, the non-departmental public body that looks after the interests of children involved in family proceedings, Judges accept the recommendations set out in court welfare reports in 76 per cent of cases.

The study, based on a randomly chosen selection of 170 private residence and contact cases, found that in 107 of these cases, or 63%, report recommendations almost exactly matched the final order.

In eight of the cases selected, there was some overlap, however, the courts did not follow report recommendations in only five cases.

Richard Green, a child protection manager at Cafcass said: “The fact that our reports are followed in nine out of 10 cases suggests that the courts attach a high degree of merit to them.”

Richard added: “We have good structures in place to produce high-quality work and we are well placed to respond to the challenges ahead”