England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(His Honour Judge Milligan)

		Royal Courts of Justice The Strand London WC2
		Tuesday 1st February, 2000

1. THE PRESIDENT: I will ask Lord Justice Thorpe to give the first judgment.
2. LORD JUSTICE THORPE: Mr and Mrs G married on 18th February 1984. There were two sons of the marriage, I, who is 15 today and O, who is 12. The breakdown of the marriage is to be traced, certainly as far as patent signs are concerned, to the service of a petition on 21st January 1999, just a year ago, by the wife. The husband immediately filed an answer, but as a result of sensible negotiations between solicitors he allowed a decree nisi to be pronounced on the petition on the basis that he was not taken to have admitted the allegations therein or to be bound by any findings in relation thereto.
3. The wife issued an application for a residence order in respect of the two children on 20th September, and on 4th November issued an application for a non-molestation order and, more importantly, an occupation order under section 33 of the Family Law Act 1996. Section 33(3), (6) and (7) read as follows:

"(3)An order under this section may-

(a) enforce the applicant's entitlement to remain in occupation as against the other person ("the respondent");

4. (b) require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;
5. (c) regulate the occupation of the dwelling-house by either or both parties;
6. (d) if the respondent is entitled as mentioned in subsection 1(a)(i), prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling-house;
7. (e) if the respondent has matrimonial home rights in relation to the dwelling-house and the applicant is the other spouse, restrict or terminate those rights;
8. (f) require the respondent to leave the dwelling-house or part of the dwelling-house; or
9. (g) exclude the respondent from a defined area in which the dwelling-house is included.
10. (6) In deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court shall have regard to all the circumstances including-
11. (a) the housing needs and housing resources of each of the parties and of any relevant child;
12. (b) the financial resources of each of the parties;
13. (c) the likely effect of any order, or 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
14. (d) the conduct of the parties in relation to each other and otherwise.
15. (7) If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears to it that-
16. (a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and
17. (b) the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made."
18. The application came for preliminary hearing before a District Judge, who set the contest for final hearing before the judge of the court, His Honour Judge Milligan, on 2nd and 3rd December. Both Mr Pears, who represents the wife, and Miss Grundy, who represents the husband, referred the judge with care to the terms of the statute and they further referred him in full to the report of the case in this court of Chalmers v Johns [1999] 1 FLR 392.
19. The judge heard evidence from the spouses and also from O's headmistress. However, he refused the application for an occupation order. He reserved the future of the case to himself and he said specifically that the cross-applications for residence in relation to the boys (and I interpolate that the husband had himself issued an application for a residence order) together with all questions of ancillary relief, be fixed for a final directions hearing on 4th February and for a fixture of 2½ days' duration on 23rd February. At the same time he gave permission to the wife to appeal.
20. Mr Pears has argued that appeal with considerable force. He has said first that the judge fell into a substantial error of law in his interpretation and application of sub-section (7) and he has said, secondly, that even if the judge was not in error in the application of that sub-section, he clearly failed to go on to determine the application under the discretionary provisions of sub-section (6). He failed to make explicit reference to any of the factors contained in the statutory checklist and that, at a minimum, he is entitled to succeed in his appeal and to a rehearing with a direction to the judge to determine the application afresh on the evidence adduced at the December hearing but with a proper direction as to the relevant statutory provisions.
21. There is undoubtedly some force in Mr Pears' criticisms, and accordingly it is necessary to analyse the judge's findings in relation to the evidence with some care. The judge considered the wife's allegations of the husband's misconduct, allegations that were partially corroborated by the evidence of the headmistress. He found both witnesses to be truthful and reliable. He rejected the husband's denials and the husband's mitigations, as well as his assertions that the headmistress was parti pris and that the wife's application was purely tactical.
22. However, there was another stream to the evidence which the judge found to be of particular importance. Within the wife's evidence the judge particularly cited the following passage:

"'Living together and going through divorce is making it all more difficult. The boys are loyal to and love their dad. I don't want any of this [litigation], nobody wants it. I accept that father going could upset the boys. The cross-undertakings to keep the peace are only appropriate depending on how long it all takes. I don't want the boys' father to be asked to go. He will only tell them it was me who did it.' ... 'The boys wake up every morning wondering how long it will go on. We can't go out together. Getting father out of the house won't give them peace of mind, but they need to know that it will all be over soon."

23. Within the husband's evidence the judge emphasised this theme. The children were admittedly suffering, but fault was to be found in both the parents:

"He only intervenes to see that they are brought up to be respectful of their mother and respectful generally. He accepts that [O] is quiet. He thinks that is to do with the divorce and his age. He accepts that there is tension in the house, but says that there is not a hostile atmosphere on his side."

24. Although the judge rejected the husband's evidence in relation to the incidents relied upon by the wife, it is clear to me that he accepted the husband's view of the current situation within the home and within the family. For when it came to his findings, the judge had this to say:

"So I reach the view without difficulty that significant harm is likely to accrue to these boys and to the mother if the present situation is allowed to continue. But I have also to ask the question whether that is attributable to the conduct of the father respondent. I have found as facts that the mother's allegations are true. But it is clear that there are other factors. Mr [G] must be right when he refers to the inevitable results of the breakdown of the adult relationship, and the fact that [O] at least at 12 and [I] to a lesser extent at 14 are both at what might be called a difficult age. I think to a great extent the conduct of the father is to that extent unintentional. I do not believe with one or two exceptions that this is a father who sets out to be unpleasant. Certainly there is no evidence that he sets out to be unpleasant to his boys, and the mother roundly accepts that. But I have to say that my feeling is that much of the present strain and worry is the result of the meeting of two apparently incompatible personalities, and that the great differences between them are aggravated by this awful no-man's land in which they have now been living for a year."

25. On those findings the judge proceeded to his conclusion on the application of the statutory test. I continue to read the following two paragraphs of the judgment. He said:

"So I come with some reluctance to the conclusion that although significant harm in my judgment has accrued to these boys and their mother and is only likely to get worse, I am unable to find that it is attributable to the requisite degree to the conduct of the father. Had I been required to consider the balance of harm test, I would certainly have recognised that the father being asked to go would be a matter that the boys would greet with some unhappiness. The tragedy of this case is that these boys seem in all the circumstances to have retained a respect for and a love for each parent, notwithstanding the great tension and atmosphere that plainly goes on in this house. [I] has said that he does not want his father to go. In my judgment it means that he does not want either of them to go.

Plainly there would be some harm resulting from the order which the mother asks me to make, but had that been the determining factor, I would have found that the harm which has accrued and will accrue to the mother and the boys would have been significantly greater. However, in all the circumstances of this thoroughly difficult case, bearing mind the length of the marriage and that much of the difficulties are to do with character and temperament and other factors unavoidable on an adult relationship breakdown, I am not persuaded that it would be appropriate under section 33 to make an occupation order today. I bear also in mind that it has proved possible to find a date in late February for the resolution of the cross-residence applications and the ancillary relief questions that necessarily go with them."

26. In relation to that passage, Mr Pears' criticisms, eloquently expressed, are that the judge was plainly wrong to look to the intention underlying the husband's conduct, to characterise the conduct as unintentional and therefore to be discounted on the application of the sub-section (7) test. He was further plainly wrong to hold that the harm complained of was not attributable to the conduct of the husband and he was plainly wrong in his application of the comparative harm test contained within the sub-section.
27. It seems to me that those criticisms are irresistible. The proper approach to the determination of applications under section 33 and the interrelationship of sub-sections (7) and (6), I endeavoured to address in the case of Chalmers v Johns and I remain of the opinion there expressed. On that basis, I would accept Mr Pears' three criticisms. Plainly, attributable on its proper construction could not dissociate the tension that the judge found evident in the complaint from the conduct by the husband that he had found proved. Plainly, the court's concentration must be upon the effect of conduct rather than on the intention of the doer. Whether misconduct is intentional or unintentional is not the question. An applicant under section 33 is entitled to protection from unjustifiable conduct that causes harm to her or the children of the family. The effect is what the judge must assess. Tiny wounds may be inflicted with great malice: great blows may be stuck unintentionally. Of course, lack of intent might support a plea of accidental injury. But where something is not done accidentally it is not to be dismissed on the grounds that it was not done deliberately. I am sure that the judge was not approaching the case on the basis that the wife had to show mens rea as well as actus reas, but his words are undoubtedly open to criticism.
28. It is plain too that he has misapplied the comparative harm test contained in sub-section (7). His language, which I have already cited in full, is not entirely easy to understand, but he seems to compare the harm to the wife that would result from either granting or refusing the order.
29. I pass now to consider briefly Mr Pears' second complaint that the judge, even if he were right to refuse, as it were, a mandatory order under sub-section (7), then fell into error in failing to conduct the discretionary appraisal under sub-section (6) with due regard to the four specific considerations set out in the statutory checklist. There can be no doubt the judge was aware of his obligation to move from sub-section (7) to sub-section (6). As I have already said, he had had Chalmers v Johns cited at length, and it is plain from page 1 of the judgment between B and C that he acknowledged his obligation so to do. It can also be said that he went on, again in the passage that I have already cited, to give consideration to what he described as "all the circumstances of this thoroughly difficult case". But he did not make any reference to any of the specific factors in the statutory checklist, other than the conduct of the husband.
30. All that having been said, is Mr Pears entitled to succeed on this appeal and to have the case remitted for a rehearing on the evidence already led as he requests? I have reached the clear conclusion that he is not. The judge was delivering an ex tempore judgment which is undoubtedly vulnerable to criticism in this court. On the other hand, he reached a conclusion which in broad terms is plainly tenable. This was not a case in which the wife had suffered any violence at the hands of the husband. It has been said time and time again that orders of exclusion are draconian and only to be made in exceptional cases. Add to that the judge's assessment that the friction between the parties was only the product of their incompatible personalities and the heightened tensions that any family has to live with whilst the process of divorce and separation is current, and the judge's conclusion is plainly justified.
31. But beside those considerations there are these further factors. First, the judge was able to accelerate the litigation timetable to provide that the directions appointment on 23rd February would be expanded into a 2½ day final hearing. That meant that the period of painful waiting for the family was at least confined within a short compass. I have to say that there seems to me to be almost an inconsistency between granting the benefit of an accelerated determination and at the same time granting permission to appeal. It would be difficult for this court to determine that appeal in a timetable much shorter than that fixed in the court of trial for determination of the substantive issues. It is only by accelerated timetabling that we have disposed of this appeal before the fixture for directions later this week.
32. Second, I draw attention to the consideration that this is a husband who is away from the family home on business for much of the year. The wife herself was recorded in her evidence as saying:

"It's completely different when he is away."

33. Thirdly, I would emphasise the judge's finding in relation to the boys, I and O. In the passage that I have already cited from page 10 of the judgment, he records the fact that I, the elder, had expressly wished his father to stay, an expression that the mother accepted to represent his wish.
34. Finally, I refer to the judge's opportunity, which he took to the full, to lay down regulation for the continuing shared occupation of the home by the spouses and guidance as to how they should conduct themselves in the intervening weeks before the final hearing. Specifically, he directed that the father should vacate the principal bedroom and make it available to the mother. He said that there should be no further communication by notes. He said that decisions must be taken by consultation and not dictation and, finally, he said that the father must give proper advance notice of the dates of his departure and return on business.
35. I have to say by way of final comment, that it does seem to me that it would have been perfectly open to the judge to have made an order in this case (if not under sub-section (7), then clearly under sub-section (6)), an order that would have incorporated those four regulatory provisions, defining it as an order made under section 33(3)(c) which allows the court to:

"regulate the occupation of the dwelling-house by either or both parties."

36. So, for all those reasons, although acknowledging the force of Mr Pears' criticisms, I would, myself, dismiss this appeal.
37. LORD JUSTICE ROBERT WALKER: I agree.
38. THE PRESIDENT: Cogent points have been made in the excellent submissions of Mr Pears, who is counsel for the wife. It is clear that both he and Miss Grundy (who represented the respondent, as Mr Pears did the applicant in the court below) carefully directed the judge to the relevant section of the 1996 Act and to the relevant case law. I recognise that this was an ex tempore judgment, in respect of which an appellate court should not be too critical. The judge would, however, have been wise to guide himself by reference during the judgment to the actual words of the statute. As Lord Justice Thorpe has said, the judge was in error in his interpretation of section 33(7). Significant harm has to be attributable to conduct of the respondent. It does not necessarily have to be intentional conduct, although lack of intent may be a relevant consideration.
39. Further, the judge was at fault in not referring to the checklist in section 33(6), although it seems clear that he recognised that section 33(6) was also to be considered even after section 33(7) had not been found, in his view, proved. He had of course been referred to the helpful decision of Chalmers v Johns [1999] 1 FLR 392, which sets out the way in which section 33 is to be approached by the trial court.
40. The judge would have had the factors in section 33(6) well in mind. He undoubtedly did consider all the relevant circumstances of this case in his judgment. Because of the undoubted flaws in the judgment, we are asked by Mr Pears to set aside his decision and exercise our own appellate discretion and remit the case to the judge at the hearing fixed for 23rd February.
41. In my view, looking afresh at all the circumstances of this case, I agree with the judge that sub-section (7) was not proved for the reasons given by Lord Justice Thorpe. Under section 33(6) the judge, in my view, came to exactly the right conclusion, although his thought processes were flawed. In a case where the parties knew that there would be a substantive hearing on both the issues of residence and of ancillary relief within a few weeks of the hearing of 9th December (that is to say on 23rd and 24th February) it was, on the facts of this case, undesirable to make an occupation order prior to the February hearing. The judge was clearly right to refuse to make the order on that occasion. We are now just over three weeks before that hearing. I sincerely hope that the parties will be assisted by the court to a resolution of all the outstanding issues, including the necessity for them both to part and for one of them to leave home as soon as possible after that hearing.
42. But with all of this in mind, and without at that stage any indication as to which parent would have a residence order or what would be the outcome of the ancillary relief, I do think it would have been undesirable to have parted them and to have made the order which would have turned the father, who had a perfectly viable application for residence, out of the home prior to making these substantive decisions.
43. The last point I would like to make is that it was undesirable for the judge, (particularly in the light of a hearing coming towards the end of February), having come to a conclusion with which this court agrees, to have given permission to appeal. As my Lord, Lord Justice Thorpe, has said, it might very well have put off the final hearing and the judge was quite right not to want too much litigation and to want this unfortunate couple to get their matters resolved as soon as possible. It was not helpful, therefore, for him to have granted permission to appeal. I think he should be more robust in his decision-making. If he thinks he is right, unless there are good reasons to give permission, he ought not to do so.
44. For all those reasons, I too agree that this appeal should be dismissed.

ORDER: Appeal dismissed. Order against the Legal Aid Board under section 18 of the Legal Aid Act 1988, suspended for 10 weeks to allow the Board to make representations.

(Order not part of approved judgment)