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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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I do despair sometimes when a children’s guardian can say such a thing to the lawyers in a case. I understand why these things are said, but still. It’s a little insulting and a little upsetting.

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But there is a serious point here. Simply because counsel acting on instructions of their client, say the mother or father in care proceedings, pursues an appeal on fairness grounds which will cause delay in a case where the Guardian is clear in her own mind what the outcome should be – does not demonstrate the callousness to the best interests of the child that the quote might suggest.

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For what is fairness if it is not something applicable to all parties? If a parent seeks a step to be taken in proceedings to enable them to have a fair trial this may well cause delay but this does not necessarily mean that such a course of action is not child focussed. Delay is better avoided, but an unfair trial is unfair for all concerned. A gap in the evidence that prevents a parent properly pursuing their case for return of their children is a gap in the evidence which has prevented a child from having as good a chance as possible of going home to their family, which increases the risk that they may be avoidably adopted. And a trial which is rushed through to avoid delay at all costs may end up being postponed or appealed and reheard to ensure that it is done thoroughly and fairly – causing unnecessary delay and heartache for all concerned. And then there’s the worst case scenario – a trial that produces the wrong outcome for a child that is not rectified on appeal.

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Lawyers understand this whoever they are acting for and whatever their silent views of the merits of their clients case. What some professionals interpret as not caring is no more than our professional ability to take a step back from making judgments about what is or is not worth delaying matters for, and focussing on preparing the case properly so that the judge who has to make the final decision can make the right decision first time round. It is not easy for professionals of any discipline involved in these cases to maintain a professional distance, and it is particularly difficult for social workers and Guardians who are specifically tasked with making recommendations to the court to feel anything but frustrated waiting for their considered views to be acted upon by the court at trial, but the court framework is overlaid upon the social work role for a reason – to protect families, and to protect children. The lawyers are not working against that aim, they are a vital art of the process of getting to the right outcome.

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Some cases admittedly look so hopeless or pointless or inevitable that everyone concerned feels that they are going through the motions. But in cases like that I remind myself of the cases I have dealt with where I have found myself succeeding on what I have told the client is a completely hopeless case. That’s neither a mark of my brilliant advocacy skills, nor of my poor judgment – it is a demonstration of the importance of the judicial process.  

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So to go back to the question – for my part I think about the kids all the time. How could one not? But then I get on with giving sound advice and acting on my instructions, and put my faith in the court to work out the right solution.

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Before you go describing the details of your case online make sure that what you are about to post is within the law. There may be lots in the press about the opening up of the family justice system, but it is actually very easy to fall foul of the law about publishing information about court cases concerning children – the law applies not just to reporters but also to you as a parent. If you do publish information about the case, whether in blog form or otherwise, you won’t be the first person to do so. But be warned, like those who have gone before you, even if you are careful not to name names you are likely to be committing a contempt of court and possibly a criminal offence.

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I have come across detailed journals about the journey of children and their parents through the court system, and I often get comments that I moderate off my blog because if published they would offend against the law. It’s a worry that people think they can publish what they like as long as it’s anonymous, and this post is intented to raise a few flags to those people, so they can be better informed about what the law says about their actions**. Hence the blogger’s guide to writing about family proceedings:

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So, here are Ten Things You Should Know:

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1 Apart from allowing the media access to court hearings on 27 April 2009, pretty much nothing else has changed. Reporting restrictions where children are concerned still apply.

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2 Reporting restrictions apply to individuals, including parents, as well as just reporters and thet are more complex than just saying ‘the child, who can’t be named for legal reasons’ etc.

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3 It is a criminal offence to publish information intended to or likely to identify a child as involved in Children Act proceedings (s97(2) Children Act 1989).

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4 It is a contempt of court to publish information relating to proceedings wholly or mainly concerning the upbringing of any child (s12 Administration of Justice Act 1960). You can be punished for contempt of court by imprisonment. Any communication of information to someone else, whether orally or in writing is a ‘publication’. ‘Information relating to proceedings’ means details of what has gone on in court, including what the judge, witnesses or experts have said or written in court documents. It is ok to give the gist of the issue in the case e.g. that the case concerned decisions about where the child should live or how often they should see their parents. It is not ok to give details of allegations made by the parties, for example about violence or the standard of parenting given by one parent.

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5 It is ok to publish information identifying a child as having previously been involved in Children Act proceedings once the case has finished (Clayton v Clayton 2006) e.g. My daughter Sarah Smith was the subject of an application by me for residence (Be warned though, Jack Straw has said he will abolish this exception although it seems unlikely that he will find time to amend the law any time soon).

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6 However, it is still a contempt of court to publish information about what has gone on in the court case even after the court case is finished – s12 Administration of Justice Act 1960 applies indefinitely.

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7 The court has a wide power to make specific orders to relax or restrict the application of the law set out above. If you want to publish something that the law prevents you from publishing you will need to apply to the judge dealing with the case. If you are publishing material that comes to the attention of others involved in the case you may find yourself on the wrong end of an application for an injunction, and possibly with costs implications.

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8 If the press approach you to speak to them, do not rely on the media to know what is and is not lawful. Even respectable national papers regularly publish material that is in breach of the law.

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9 You are not entitled to disclose court documents to the press or to publish them online. You can disclose them to somebody confidentially if you need to do that in order to obtain advice support or assistance in the conduct of your case, but you must make sure that anyone you disclose documents to in this way knows that the material is confidential and must not be passed any further. You should look at rule 11.1 – 11.9 FPR 1991 to see what can be disclosed and when. Giving details of your case to other parents for help on an online support forum is probably not within the rules even if the forum is members only, but on the other hand the Court of Appeal have taken a relatively sympathetic approach to this type of activity in the past, when it was clear that a useful purpose was being served by the forum (see Re G [2003] EWCA Civ 489). Using a forum to run down the other parent is likely to meet with a less sympathetic approach.

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10 Consider what impact any publication will have on the child, and consider what impact it may have on the court’s view of you if it is drawn to their attention. It may prove very unhelpful if the Judge thinks you are on a crusade for justice that has distracted you from the practical needs of your child. Consider also how publishing material will HELP you secure justice or what unwanted attention it might attract.

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So those are my ten points – it is often superficially attractive to get all your disgruntlements off your chest, and to gripe about how unfair the system is. And it is all too easy to forget who may be reading what you have posted in a careless moment. At least if you do decide to publish and be damned you can do it from a position of first having a rough understanding what the law says about it.

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Postscript: Number 11 on the list is that points 1 – 10 are a very very broad brush and quite superficial summary of what is actually quite  a subtle area of law. This is the Nutshells version only.

** NB: This post is a summary of the law concerning disclosure and publication of information in relation to family proceedings concerning children. As with everything on this blog it should not be treated as legal advice and I would suggest that anyone in doubt should 1) seek legal advice about the specifics of your case and 2) hold off on publication until that doubt is resolved.

POST SCRIPT NO 2: Don’t forget the law is due to change, on a date to be announced…See here.

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Since my last post on the topic I’ve dealt with and been made aware of further cases where the judge has seen the children in the case, and although I am positive about the benefits of children meeting with the judge in the right case and if handled properly, I am anxious that, as the debate about the pros of seeing children progresses, different judges appear to be developing different and inconsistent practices. So, for example District Judge Carr suggests in his article that the lawyers in the case should always be present when the judge meets with the child, and a record always made. However, in my experience lawyers have deliberately been excluded, although in one instance a female member of staff from the court office was present (quite what her role or qualifications were I’m not sure), and no written record or summary has ever been made available to the parties (and it is unclear if the tape is running).

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I’m not wanting to say which approach is right or wrong, but I do think that everyone involved – Judges, parties and their legal representatives - would be assisted by clear guidance on when it is right to see a child and how this can be smoothly incorporated into court procedure. In another case the parties had attended with the children, but because the children were still present at court any further negotiation in respect of contact based on their wishes as expressed to the judge was hampered by the fact that the children could hear everything said and there was no effective means of having any private negotiation. Such situations can be resolved easily enough by having a system of separate or staggered appointments for the hearing of children’s views by the judge and the listing of any review hearing shortly thereafter, but it does require a system to be in place and operational in the court in question, and that staff are familiar with it.

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In another case I dealt with the local court building was so small that it was impossible for the children to come to court without passing in very close proximity to their father, when one of the issues in the case was his inability to refrain from putting inappropriate pressure on the children to see him. Again, this type of issue requires careful thought and prior planning and would be simply solved by seeing the children on a separate occasion from the subsequent review and directions hearing.

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And in another case a parent acting in person sought to rely upon her recollection of what the judge who had seen the children had reported in making submissions about the children’s wishes and feelings before a different judge. Nobody had a written record of what the children had actually said. Again, easily solved if appropriate systems are in place.

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It is particularly difficult for advocates to explain to anxious parents who are asked to bring their children to court what is going to happen when practice varies so widely and where there is no established best practice or consensus about how matters should proceed. It is right for the voice of the child to be more often heard by means of direct meeting with the judge, and the movement towards this becoming more common practice is gathering pace, albeit with considerable local variation. Guidance in the form of a Practice Direction is now urgently required.

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I happen to know from my spies (I gossip in court corridors) that ‘the fastest divorce court’ referred to herein is in fact Swindon County Court, which is not as much as a 2 minute walk from the offices of the providers of the ’UK’s fastest selling managed divorce service’. Handy that. Unfortunately, it  is not that Swindon County Court’s reputation for speediness precedes it – speed not being characteristically associated with neither HM’s fine Court Service in general nor Swindon County Court in particualr. No, this is because it is whispered in the legal lobbies of Swindon that there has been a 40% increase in divorce petitions issued in Swindon, attributable to the UK’s fastest growing provider of the UK’s fastest divorce who have been issueing the UK’s fastest growing number of petitions in any one court. And it seems to be causing a teensy bit of a logjam in the combined court office (I may understate this a tad - chaos certainly appeared to reign when I was last there, but this is a mere snapshot and no doubt is at least in part due to the more resource and structural difficulties that is endemic in HMCS). But really – Oops. As if the poor HMCS staff have any spare capacity.

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So I’d guess that Swindon is no longer ’the fastest divorce in the west’. If it ever was. And in fact I wonder if things might get rather worse before they get better since the Family Proceedings Rules provide that any Children Act application issued whilst a petition is pending (or for a period thereafter) must be issued in the court seized of that petition (although this rule is I acknowledge that this particular rule is often ignored). So for all those happy beneficiaries of the fastest divorce who live in Newcastle or Ipswich (or wherever else is miles from Swindon) and who discover some way down the line that the process of separation is not quite as straightforward as handing over 180 smackers and a-wham-bang-thankyou-ma’am it’s all done - whilst the divorce may be a snip and a snap, there may be  some irritating delay caused further down the line when their application to resolve the dispute about the kids has to be issued in Swindon and then delayed for transfer to the court where the child actually lives. If they’re lucky they’ll avoid having to attend any hearings miles away from home (you can’t attend a hearing via the internet). And whilst I wish them well, I reckon Divorce Online may soon be able to add ‘Swindon County Court’s most un-favourite outfit’ to their list of fastest and best.

• public arguments between couples over facebook (yes really – in fact between an old school friend and his (probably now ex-) partner, ending with each commenting on the other’s status that they should ‘grow up’ and ‘get a life’.  Quite.
• evidence of a mother being involved in a relationship with a sex offender serving a prison sentence, which was relied on to demonstrate an ongoing risk of harm to the child concerned
• as a mechanism for harassment and threats against an ex partner
• as evidence of teenage children’s wishes regarding contact where the parents were highly conflicted and the resident parent said they were adamantly opposed to contact
• as a mechanism for indirect contact
• as evidence of lifestyle and hence financial non-disclosure
• as a way of continuing a dispute about contact with a child by posting negative remarks about the resident mother on the child’s myspace page and circulating emails / comments about the case to the myspace friends – a dispute then arising as to the mother’s refusal to allow the father access to the child’s myspace page by changing the privacy settings
• in connection with discussions about how a parent publishing comparatively ‘harmless’ information about a child involved in proceedings might involve a breach of the rules regarding disclosure of information regarding proceedings concerning children.

Yes, social media pops up in cases of all sorts: finance, children (public and private) and injunction proceedings. You cannot get away from it, even in the midst of a paper obsessed profession like law.

We’re some way off I think from blogging or tweeting in court, but it pays to have a little bit of a clue about web 2.0 – issues like those above are bound to crop up with increasing frequency and questions of access to and disclosure of data from third parties like Facebook (or similar) in order to prove assorted allegations are likely to arise sooner or later. Has anybody yet dealt with such a case I wonder?

Not a few people were so caught up whooping at the successful drawing back of the cloak of secrecy that they failed to pay attention to what was actually being announced and what was actually possible in the timescale between announcement (Dec) and implementation (next Fri). Is that a ‘con-trick’? No. Reporting restrictions were ALWAYS going to take longer than four months to sort out because the law concerning the reporting of proceedings concerning children is spread across several different pieces of primary legislation (Administration of Justice Act 1960, Children Act 1989, Children & Young Persons Act 1933, Contempt of Court Act 1980 etc). The easy bit: media access – well that could be fixed simply by tweaking the rules quick as you like.  

Far from a case of ‘hoodwinking’ as suggested by Mr Hemmings MP (who ought really to know that statute requires amendment by Parliament and that the process of amending primary legislation can be laborious and slow), the limitations on the changes announced for implementation in April this year ought to have been obvious to anyone paying proper attention from the outset.

The media have been misled, says Mr Hemmings. Perhaps they have, but at the risk of siding with Jack Straw – not by the Government. One might venture to suggest that ‘the media’ have been so busy dancing their little victory dance that they have gone almost to the day of implementation without really scrutinising the proposals and public statements to see what they actually promise. One might also note (with just a little snidey grin) that this does not instill confidence in the ability of the media to thoroughly and comprehensively analyse and present sensitive or complex material arising from family proceedings for the purposes of fair and appropriate reporting. But that would just be catty.

Mr Hemmings is right. Significant change on a day to day level will come only when the law relating to reporting restrictions is reformed. And it remains to be seen what shape that reform will take. The process of legislative reform of reporting restrictions is likely be complex, controversial and time consuming. Watch this space – carefully. And DOooooo pay attention. There will be a test.

So I thought I would draw your attention to the Family Proceedings (Allocation to Judiciary) Directions 2009, in force since 16 February 2009, which you can read at your leisure here.

It is worth being up to speed on the question of jurisdiction. Today it didn’t matter much but court staff are not infallible in listing a matter in front of an appropriate judge and a judge who is given a list may not spot the problem. I recall an early appeal against Jacqui of Bloody Relations where I successfully overturned an order for committal made by an over eager District Judge who had no ‘power to pot’.

So, for future reference, a DDJ can deal with enforcement of children act matters only, not including residence or special guardianship. So that’s pretty much nothing. And it doesn’t even matter if it’s straighforward or by consent. It’s an interesting rule in the current climate of downshifting as much as possible to the FPC and trying to spread the burden of cases across the court system as widely as possible, and even more so when one thinks that some of our most experienced but semi-retired DJs are sitting as DDJs.

Still, it is not for me to question, only to inform.

In the meantime take a look at the draft rules due to come into force on 27th April (not yet available on OPSI) which modify privacy rules in children proceedings as set out in Jack Straw’s announcement on Monday.