Balance of Harm Test in Occupation Orders

What Is the Balance of Harm Test?

The balance of harm test falls under Section 33(7) of the Family Law Act 1996. In applying the test, the court weighs up the effect of the order on the applicant and the respondent respectively, and any children involved. Children’s welfare is always of paramount importance to the court.

When applying the test, the court considers whether the applicant or any relevant child is likely to suffer significant harm if the order is not granted, or whether granting the order would cause the respondent greater harm than the applicant would suffer without it.

If the applicant has a legal right to occupy the home (such as through ownership or tenancy), the court is required to make an occupation order if the balance of harm tips in the applicant’s favour. If the applicant does not have an automatic right to occupy the property, the court may still grant the order, but it has greater discretion in doing so. If the balance tips in the respondent’s favour, however, then the order may not be made.

How Does the Court Apply the Test?

The key factor in the balance of harm test is the presence of harm. Harm is defined broadly, and involves the ill-treatment or the impairment of health or development of an individual, including any children. Children can be found to be at risk of harm simply by seeing or hearing one parent’s ill-treatment of the other.

In addition, however, the court will also evaluate the housing needs and financial resources of both parties. If the applicant has no suitable alternative accommodation and would face hardship without the order, this will strengthen their case. Conversely, if the respondent would suffer significant financial difficulties or homelessness as a result, this will be taken into account.

Another crucial factor is the behaviour and conduct of both parties. If there is evidence of domestic abuse or controlling behaviour, the court will place greater weight on the need to protect the applicant and any children. The court may also consider whether either party has contributed to the breakdown of the living arrangements and whether there have been any previous court orders or police involvement.

Where children are involved, the court will always prioritise their welfare. If remaining in the home is necessary to provide them with stability and security, this will strongly influence the court’s decision. Even if the respondent experiences hardship due to the order, the need to safeguard the children may take precedence.

Why Legal Advice is Essential

Occupation orders are complex legal orders that can have serious consequences for both parties. The court will only grant them in specific circumstances, and the evidence presented must clearly demonstrate the risk of harm. Seeking legal advice is crucial to ensure that the correct legal arguments are made and that all necessary evidence is provided.

If you are seeking an occupation order or defending one, a solicitor can guide you through the process, ensuring that your rights and interests are fully protected.