KM v LN (Appeal: Occupation Order and Interim Child Arrangements) [2026] EWHC 2123 (Fam)

[2026] EWHC 2123 (Fam)Case No FA-2026-000302
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Date 07/08/26
On Appeal from HHJ Middleton-Roy
ZC25P00291/ZC25F00296
Before
MR JUSTICE POOLEKMThe AppellantLNThe RespondentKM v LN (Appeal: Occupation Order and Interim Child Arrangements)
Between
KMAppellantLN (Appeal: Occupation Order and Interim Child Arrangements)RespondentHearing Hearing date: 3 August 2026
Barbara Mills KC (instructed by Miles Preston) for the Appellant
Edward Lamb KC (instructed by Direct Access) for the Respondent
JUDGMENT
This judgment was handed down remotely at 10.30am on 7 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
This judgment was delivered in public. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and the parties must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Introduction

[1]This appeal is against the making of an occupation order under the Family Law Act 1996 (“FLA 1996”) s33, excluding the appellant father (F) from the family home and the revision of interim child arrangements orders as a consequence, when a partial nesting arrangement had been in place for many months during the currency of disputed Children Act and financial remedy proceedings, final hearings of which were listed within a few weeks.[2]The orders under appeal were made in the Central Family Court by HHJ Middleton-Roy on 3 July 2026. It was ordered that F must leave the family home by 15 July 2026 (“the Judge”) and that he was excluded from occupation for six months. The appellant’s notice was issued on 9 July 2026. On 13 July I stayed the occupation order and the consequential variation of the child arrangements order pending the conclusion of this appeal, and listed the appeal for a rolled-up hearing of the application for permission to appeal and, if required, the substantive appeal.[3]There is no transcript nor any agreed note of the Judge’s ex tempore judgment and I must rely on two notes of the judgment, one made by a secretary at the appellant’s solicitors, revised by his Counsel, the other by Counsel for the respondent mother. Both Ms Mills KC and Mr Lamb KC who appear for the parties in this appeal were Counsel before the Judge.[4]The background to the appeal can be briefly stated: 4.1. F was born in Australia of Indian heritage and is 56 years old. M was born in Ethiopia and is a UK citizen aged 47. The parties married in 2014 and have two children: A, a girl now aged 12, and B a boy now aged 6. The family home is a four-bedroom house in London. There is no mortgage on the family home which has a market value of about £5m. There are other substantial matrimonial assets, including liquid assets such that the provision of interim alternative accommodation for one of the parents is easily within the family’s financial means. 4.2. The marriage broke down acrimoniously in 2024, but the whole family continues to live in the family home. 4.3. F made an application for a child arrangements order which was issued on 1 March 2025 and M then applied for an occupation order and non-molestation order issued on 30 May 2025. Those applications were consolidated at a First Hearing and Dispute Resolution Appointment in June 2025. 4.4. The parents have accused each other of manipulating the children to become hostile to the other parent. There are mutual allegations of coercion and control. There has been a complete breakdown of trust between the parents. M has involved the police on several occasions, and the children have given video recorded police interviews. No charges have been brought against the father and some of the allegations against him, which in any event are disputed, are he maintains, of a trivial nature. The children have been subjects of Children in Need plans and the allocated social worker, Ms H, has assisted the court including by making a s7 report. 4.5. On 11 September 2025, DDJ Mornington made an interim child arrangements order which could be described as a partial nesting arrangement. The children would remain living in the family home. For most of the week both parents would also live in the home but for defined periods, including alternate weekends, one parent would leave the family home to stay in a hotel, funded by F, so that the other parent could spend time alone with the children at home. This was not a consensual arrangement: it was imposed by the court. M sought to appeal against the order but, as Mr Lamb KC put it to me at the appeal hearing, her appellant’s notice became “lost in the ether” – no determination was made on permission to appeal one way or the other. 4.6. The partial nesting arrangement persisted and was continued by the court at a number of further hearings until it was terminated by the Judge on 3 July 2026. In the meantime, the financial remedy proceedings had progressed and were listed for a final hearing on 20 July 2026, and the final child arrangements hearing was listed for 7 September 2026. 4.7. The Judge had the benefit of six witness statements from M and four from F. He also had evidence from the allocated social worker, Ms H, by way of a letter dated 31 July 2025, a s7 Report dated 26 August 2025, updating statements in September and November 2025, and an addendum report dated 30 March 2026.[5]Ms H’s most recent evidence to the court included the following: 5.1. “The parents remain co-habiting most of the time, which is assessed as harmful to the children.” 5.2. A told Ms H that she wanted to live with M and B and “if I had to see [F], I could just facetime him.” 5.3. Ms H observed that the combination of parental conflict, the Local Authority’s involvement, and the proceedings, were having “a significant impact on [A]’s emotional well-being.” 5.4. Ms H reported that “there have been multiple reports of age-inappropriate communication from [B] such as death and killing from the police, [M] and [F]. The police reported to me following [B]’s interview that he mentioned various weapons, Hitler references, suicide and genocide…” 5.5. B reported to Ms H that he would like to live with F “sometimes, all the time, but not all the time” He agreed that it could be half the time with F and half the time with M. 5.6. Ms H assessed B as “being caught up in his parents’ conflict. [M] and [F] both report that [B] will say things along the lines of “I hate my [M]”, “I hate my [F]”, and “I want to kill my [M]/[F].” She reported that “I fear that [B]’s feelings of emotional safety may be viewed by him as having to side with one parent. This is likely to cause long-term instability and relational barriers.” 5.7. Ms H concluded that “a change in circumstance within the family environment is vital” and “I am concerned that if the parents do not move towards parenting separately as soon as possible, their children will continue to be placed in the middle of their conflict and will not be given consistent routines.” She continued, “It is my assessment that by far the most harmful factor in the children’s life at present is the fact that they are caught in the middle of parental conflict.” She recommended “the parents should cease living together and parent separately at the earliest convenience.”[6]The hearing before the Judge lasted a day. He heard oral evidence from both parents, submissions from Leading Counsel, and gave an ex tempore judgment. I have compared the two notes of his ruling and shall only use quotations where the notes coincide. The Judge noted that whilst M applied for an occupation order against F, F maintained that a variation of the ongoing nesting arrangement would be more suitable. In particular F suggested moving to a full nesting arrangement under which the children would remain at home but never with both parents at any one time. The Judge noted his powers under FLA 1996 s 33, including to regulate the occupation of the family home. He referred to his discretion under s 33(6) and the applicability of s33(7) if it appears that the conduct of a party was likely to cause harm. He addressed the resources of each party, noting a “disparity” with M being financially dependent on F and F being better placed to obtain alternative accommodation. He referred to the “high level of parental conflict” and that continued co-habitation had “generated a high level of hostility.”[7]The Judge noted that there had been no findings of fact about the conduct of the parties and he appears to have ruled out application of s33(7) on the basis that F’s conduct alone was not sufficient to justify an occupation order. He reviewed the parties’ evidence and his impressions of them. He found that it was “patently obvious” that the arrangements were disruptive for the children and that they needed a break from the environment of conflict. He also found that continuation of the nesting arrangement, even if third parties were involved, would carry a high risk of emotional harm to M. The appellant’s note records a finding that the Judge said he was “clearly satisfied to exclude the father from the property and for an occupation to be made, “ Ms’s note records that the Judge stated “broad discretion weighing up all the features of the case …” He then referred to the harm to the children and mother from continuing any form of nesting arrangement and that an occupation order was “necessary and proportionate.”[8]The Judge ordered F to leave the family home by 4pm on 15 July and not to return save for the purpose of collecting or returning the children in compliance with a “time with” order. He varied the interim child arrangements orders with effect from 15 July such that the children would spend time with the father on alternate weekends from Friday at 3pm (or after school) until Saturday at 6pm, and on Sundays from 10am to 6pm. A would spend time with him each Monday evening for 3 hours and both children every Wednesday for two hours. The parties were free to agree further spending time arrangements in writing.

Grounds of Appeal and Submissions

[9]Ms Mills KC groups the grounds of appeal as follows: 9.1. Grounds one and four:
“the judge’s approach to the legal framework, and determination of the issues through the prism of section 33 of the Family Law Act 1996 rather than section 1(3) of the Children Act 1989”
. Ground 1 is that:
“In proceedings where even M described the child arrangements and occupation of the family home as, “inextricably linked”, the learned judge was wrong to determine the issues at this hearing only through the prism of section 33 of the Family Law Act 1996 and not also through the prism of section 1(3) of the Children Act 1989. As a consequence, he denied himself the opportunity to conduct a global, holistic and multi-faceted analysis of the children’s needs, taking into account the positives and negatives of the available options, before determining which best met their needs on an interim basis, and prior to the final hearings - in the financial remedy proceedings listed on 20th July 2026 for 3 days and the children proceedings listed for 3 days starting 7th September [2026].” 9.2. Grounds 2, 3, and 4: “Failure to consider material evidence provided by F and the local authority and failure to stay the application pending the conclusion of the Children Act 1989 proceedings.”
The Judge effectively accepted one party’s (M’s) version of events and by doing so failed to take into account F’s evidence of M’s conduct, of his own health concerns, and of Ms H’s analysis, including her concerns about M’s conduct and lack of insight. In her oral submissions Ms Mills KC highlighted three aspects of the case before the Judge which she says he failed to take into account: 9.2.1. The impact on the children’s relationship with him of M’s alienating behaviour which would be even more out of control if he were excluded from the family home; 9.2.2. The impact of her alleged abuse of the children once he had been removed as a protective factor; 9.2.3. The impact on the children’s perception of him, and therefore their relationship with him, of his being viewed as the culprit who had to be excluded from the home. 9.3. Ground 5:
“disproportionate interference with the article 8 rights of F and the children.”
Separation of F from the children with the consequent unequal access to them constituted a marked change in the child arrangements and a draconian and disproportionate interference with article 8 rights.[10]Ms Mills KC also contends that decision on occupation orders, whilst frequent, are very infrequently published, and it would assist to have guidance on the overlap between child arrangements and injunctive relief under FLA 1996 s33. That is another compelling reason why the appeal should be heard.[11]Mr Lamb KC, who, like Ms Mills KC, was counsel before the Judge, maintained that the appeal was nothing more than an attempt to re-argue the case save that F did not put the case to the Judge that he ought to view the application through the prism of the Children Act s1. The appellant ought not to be permitted to raise that argument since it had not been deployed before the Judge.[12]In other respects, maintained Mr Lamb KC, the judgment can be fairly read as covering all the points now made against the Judge. Specifically, 12.1. The Judge was well aware of the relatively short time remaining pending the final hearings. Indeed, he referred to the number of weeks over which his interim child arrangements order would be effective. 12.2. The Judge specifically addressed the continuation of any form of nesting arrangement as being harmful to the applicant and the children. 12.3. The Judge was right not to make findings about whether allegations of alienation were to be relied upon or not. However, he was also right to note that allegations were made by both parents and that conduct was, as it were, a neutral issue in the case.

The Law on Appeal

[13]FPR 30.12(3) provides that an appeal may be allowed where either the decision was wrong or it was unjust for serious procedural or other irregularity. The court may conclude a decision is wrong because of an error of law, because a conclusion was reached on the facts which was not open to the judge on the evidence, because the judge clearly failed to give due weight to some significant matter or clearly gave undue weight to some other matter, or because the judge exercised a discretion which "exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong": G v G (Minors: Custody Appeal) [1985] FLR 894.[14]By FPR r 30.3(7), permission to appeal may only be granted if the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard. The prospect of success on appeal must be realistic as opposed to fanciful. There is no requirement that success must be probable – R (A Child) [2019] EWCA Civ 895 per Peter Jackson LJ at [31].[15]The appellate court must consider the judgment under appeal as a whole. In Re F (Children) [2016] EWCA Civ 546 Munby P summarised the approach as follows:
"22. Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law… 23. The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372): "
The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself." It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in "narrow textual analysis".[16]Lewison LJ expressed the caution which an appellate court must apply to findings by the lower court in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, at paras114 to 115:
"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them…The reasons for this approach are many. They include, i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done. 115. It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted."
[17]More recently Lewison LJ set out again the principles to be applied in Volpi and ors v Volpi [2022] EWCA Civ 464.

Occupation Orders – the Legal Framework

[18]FLA 1996 s 33 provides as follows:
“33 Occupation orders where applicant has estate or interest etc. or has home rights. (1) If— (a) a person (“the person entitled”) - (i) is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, or (ii) has home rights in relation to a dwelling-house, and (b) the dwelling-house— (i) is or at any time has been the home of the person entitled and of another person with whom he is associated, or (ii) was at any time intended by the person entitled and any such other person to be their home, the person entitled may apply to the court for an order containing any of the provisions specified in subsections (3), (4) and (5). … (3) An order under this section may— (a) enforce the applicant’s entitlement to remain in occupation as against the other person (“the respondent”); (b) require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house; (c) regulate the occupation of the dwelling-house by either or both parties; (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 dwellinghouse; (e) if the respondent has home rights in relation to the dwelling-house and the applicant is the other spouse or civil partner, restrict or terminate those rights; (f) require the respondent to leave the dwelling-house or part of the dwellinghouse; or (g) exclude the respondent from a defined area in which the dwelling-house is included. … (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 - (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. (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— (a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and (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. … (10) An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurrence of a specified event or until further order.”
[19]Some forms of occupation order exclude a person from occupying their own home. In this case one might say that an occupation order was made, but I shall keep to the nomenclature under the statute by referring to the Judge’s order as an occupation order.[20]FLA 1996 s33 was considered in Chalmers v Johns [1999] 1 FLR 392, which judgment was applied and expanded upon in the later judgments of G v G (Occupation[21]To that short list of principles, I would add that neither under s33(7) nor under s33(6) is the welfare of any relevant children the court’s paramount consideration, but that where there is a close link between occupation of property, in particular a family home, and child arrangements, the court ought to consider the impact on the health, safety or well-being of the parties and of any relevant child of any revised child arrangements consequent to the making of an occupation order, and the impact on any child arrangements (and thereby on the health, safety or well-being of the parties and any relevant child) of not making an order.

Analysis and Conclusions

[22]I am hindered by not having an approved transcript of the ex tempore judgment. It is regrettable that almost a month from the judgment, the parties have been unable to secure a transcript despite the appellant making a prompt application for one. Furthermore, I do not have an agreed note of the judgment, which I had directed should be filed in the appeal if a transcript was not available, but rather two shorthand notes of the judgment.[23]There is no dispute that M had standing to apply for an occupation order under FLA 1996 s33 and that both she and F had entitlement to occupy the dwelling-house which was the family home. The Judge therefore had available to him a range of possible occupation orders including regulation of occupation by one or both parties, a requirement for F to leave the home, and/or restriction of his rights to occupy it.[24]I can understand the complaint that the Judge conflated the tests under s33(6) and s33(7) but I have to be careful not to scrutinise the ex tempore judgment as if it were a statute, in particular since I only have two notes of the judgment which are not agreed by Counsel. It is reasonably clear to me from those notes that the Judge made his decision to make an occupation order under s33(6) not s33(7). Insofar as he imported terms such as “significant harm” into the assessment under s33(6), that did not affect the assessment itself, certainly not in a way that was adverse to the appellant.[25]Having decided to make an occupation order of continuing application, no point is taken that the Judge was not entitled to order it to take effect twelve days after the order and to last for six months.[26]There is no dispute that the Judge had the power to make an occupation order excluding F from the family home in the exercise of his broad discretion under s33(6). The issues raised by the appeal are whether he approached the exercise of his discretion in the right way, whether he disregarded relevant evidence, and whether his decision to exercise his discretion to make an occupation order was wrong.[27]The notes of the judgment show that, very properly, the Judge did not go into granular detail about every piece of evidence or every circumstance relevant to the exercise of his discretion. Even allowing for the calibre of Counsel, no Judge conducting a hearing of this kind should be required to address every submission or every aspect of the evidence. However, it is clear from the notes of judgment that the Judge took into account the evidence of the parties, both of whom gave oral evidence before him, and of the written evidence of Ms H. He expressly considered the housing and financial resources of the parties, their conduct, and the impact of making an occupation order, and of not making such an order, on the parties and their two children.[28]The timing of the decision to make an occupation order raised an issue for the Judge. Inevitably, an occupation order excluding F from the family home would result in the need to revise the interim child arrangements order with a pending final hearing of the child arrangements order application listed for just over two months away, in early September 2026. Furthermore, there was an imminent final financial remedy hearing at which disposal of the family home was likely to be considered. I am fully satisfied that the Judge was aware of those timings and took them into account. They were relevant circumstances under FLA 1996 s33(6).[29]I reject the suggestion that, in the circumstances that pertained on 3 July 2026, the Judge could not reasonably have proceeded to consider making a s33 occupation order. Although relevant to the exercise of the discretion under s33(6), the imminence of the final financial remedy hearing, and the approach of the final child arrangements order hearing did not preclude an occupation order being made. It cannot reasonably be argued that the Judge was bound to stay the application pending the outcome of one or other of the forthcoming final hearings. Each case will turn on its own facts: circumstances in any particular case may justify an occupation order being made even if it will have effect only for a few days.

Ground 1

[30]I accept that the application for an occupation order was closely linked to the interim child arrangements. If an occupation order would be bound to bring the nesting arrangement to an end, then the existing interim child arrangements could not continue. However, neither the paramountcy principle nor the welfare checklist was applicable under FLA 1996 s33. There was no error of law when the Judge proceeded to make an occupation order without applying the paramountcy principle or the welfare checklist to that decision. To that extent there is no merit in ground 1 of the appeal, but that ground, as articulated by Ms Mills KC, goes further. The broader issue is not whether the Judge ought to have applied the paramountcy principle and the welfare checklist to the decision whether to make an occupation order, but whether he ought to have taken into account the change of interim child arrangements, and the impact of that on the welfare of the children when making that decision. In my judgement he was obliged to do so.[31]The existing interim child arrangements involved a partial nesting arrangement with both parents occupying the family home together and, at defined times, separately. An occupation order excluding F from the family home would therefore inevitably terminate the partial nesting arrangement requiring revision of the interim child arrangements. Any revision would involve applying the paramountcy principle and the welfare checklist. Accordingly, in order to consider “all the circumstances and the impact on the well-being of children and the parties of making an exclusion order, the Judge was bound to consider at least the shape of the reviewed child arrangements in the event of F being excluded from the family home. What would those arrangements be if they were made in the best interests of the children? In my judgement, on the facts of this particular case, the Judge was required to consider: 31.1. If it appeared to the court that the applicant or any relevant child would be likely to suffer significant harm attributable to conduct of the respondent if an order under s33(3) were not made, the balance of significant harm under s33(7)(a) and (b); or, 31.2. If it was found that s33(7) was not applicable, how the revised child arrangements would affect the health, safety or well-being of the parties and of any relevant child and any other relevant circumstances under s33(6) including s33(6)(c); As already noted, the Judge proceeded under s33(6) not 33(7) and so the matter he was obliged to consider was the impact on the health, safety, and well-being of the parties and the children of any revised child arrangements.[32]The revised interim child arrangements were closely linked to the occupation order. A decision to exclude F from the family home did not mandate the actual revised child arrangements that the Judge in this case ordered: in principle, he might have decided that it was in the best interests of the children to spend equal time with each parent pending a final hearing, for example. But since he inevitably had to consider interim child arrangements, it seems to me that the Judge was required when deciding whether to make an occupation order to address how the making of an occupation order would affect the child arrangements and therefore the health, safety and well-being of the parties and the children. This is not a circular exercise. The court can consider what child arrangements would serve the best interests of a child in the event of an occupation order being made and then weigh those in the balance when considering all relevant circumstances under s33(6) or, where relevant, when considering the statutory test under s33(7).[33]Under ground 1 of the grounds of appeal, Ms Mills KC complains that the Judge did not carry out a welfare analysis, including consideration of the impact on child arrangements, before making the occupation order. I accept that from the notes of his judgment, it does not appear that the Judge expressly considered the impact of a varied child arrangements before deciding whether to make an occupation order. To that extent I am satisfied that there is a real prospect of success on ground 1 of the grounds of appeal. I have therefore to consider whether the appeal succeeds under that ground.[34]Although the Judge turned to the revised interim child arrangements only after deciding to make an occupation order, I am satisfied that he was fully aware and mindful of the inevitable consequence for the interim child arrangements of excluding F from the family home when, hitherto, a partial nesting arrangement had been in place. It was clear to him that the children would no longer be living with F were an occupation order made, in particular since he did not have evidence of where F would live other than in a hotel where he had been intermittently staying under the partial nesting arrangement. Reading the notes of judgment as a whole I am also satisfied that when making the order to exclude F from the family home, the Judge had in mind a reduction in the time F would spend with the children pending the final child arrangements order hearing. It would have been preferable had the Judge expressly considered what the post-exclusion arrangements might be before deciding whether to make an occupation order, but I must read the judgment as a whole. When doing so, I am satisfied that the Judge had in his contemplation the likely form of interim child arrangements when he made his determination about the occupation order. He was not obliged to apply the welfare checklist, but he was obliged to take into account all the circumstances including the impact on the well-being of the children of making or not making an occupation order. I am fully satisfied that he did so. A fair reading of the judgment shows that when he decided to make an occupation order, the Judge knew the shape of the child arrangements that would follow. It was, after all, his own determination of what was in the best interests of the children. He very clearly had in mind the well-being of the children when deciding to make the occupation order and he can be taken to have taken into account that they would no longer have as much time with F when he chose to exclude F from the family home. The order of reasoning within his judgment did not affect the outcome or the orders made. Ground 1 raises a valid issue concerning the interrelationship between FLA 1996 s33 and child arrangements orders under the Children Act 1989, but on a fair reading of the whole of the judgment, the Judge did not fall into error and ground 1 of the grounds of appeal must be dismissed.

Grounds 2 to 5

[35]The other grounds of appeal have no real prospect of success on appeal and there is no other compelling reason why the appeal should be heard on those grounds.[36]It is clear on my reading of the notes of his judgment, that the Judge took into account all the circumstances relevant to the exercise of his discretion under FLA 1996 s33(6) including the matters set out at s33(6)(a) to (d).[37]There was ample evidence available to the Judge that it was significantly harmful to the children’s and the applicant’s well-being for F and M to remain living together with the children in the family home. The Judge was clearly entitled to conclude that even though the interim partial nesting arrangement had been in place for ten months, it had to end. That had been the clear recommendation of Ms H in her report at the end of March 2026. There was no subsequent evidence that the environment within the family home had improved since then. Allowing a damaging situation to continue for another two months would be likely to cause the children further harm. The Judge was clearly entitled to decide to bring the current partial nesting arrangements to an end in order to protect the well-being of the children. He expressly found that nesting was detrimental to the children’s well-being. He went on to find that the post-exclusion arrangements would allow the children a break from the parental hostility which would be beneficial to them. He noted that a 50/50 split of time with each parent would not work. The Judge had ample evidence from Ms H that M could meet the children’s needs if they were to live with her in the absence of F. It is difficult to see as a matter of logic why a nesting arrangement would protect against M alienating the children against F (which is his case), since she would regularly be alone with the children.[38]The Judge can be taken to have had regard to the lengthy written evidence from Ms H which set out details of her assessments and her recommendations as to child arrangements. The Judge also had the benefit of seeing and hearing the parents give oral evidence, a benefit which the appellate court does not share. I do not accept that the Judge disregarded relevant evidence nor that the decision he came to was one which no Judge could reasonably have reached in the exercise of the broad discretion under s33(6).[39]Ms H also gave the court evidence as to the children’s wishes and feelings. The Judge noted that A’s position was adverse to F – she did not want to spend time with him. That wish could of course be overridden in her best interests, but it was relevant to the decision as to which parent should be excluded, if there was to be an exclusion. F had not applied for an occupation order.[40]There was a wide disparity in financial resources such that F could more readily obtain alternative accommodation than could M. The Judge noted as much. F said that he could pay for accommodation for M, but that would make her entirely dependent upon him. F is a man of substantial means, and it was no difficulty for him to fund alternative accommodation.[41]As to the conduct of the parties, relevant under FLA 1996 s33(6)(d), the Judge found that conduct was, as noted in one of the notes of judgment, neutral. He did not rely on conduct to tip the scales one way or the other when exercising his discretion. Given the keenly contested allegations and counter allegations, that was perhaps wise. There had been no fact-finding exercise and no admissions. He had to consider risk, but risks to the children and the parties from an occupation order and its consequences had to be weighed against the virtual certainty that the continuation of the present arrangements with the parties co-habiting, would cause harm to the well-being of the applicant and the children.[42]Looking at the judgment as a whole, the Judge considered all the relevant evidence about the impact on the children and the applicant of making and not making an occupation order with consequent revisions to the interim child arrangements. He took into account all the circumstances relevant to his decision.[43]It was clearly open to the Judge to find that F should be excluded because of the impact on the children of continuing the nesting arrangement. One parent needed to move out and, given their respective resources and the wishes of A, that parent should be F who was the respondent to the application. The decision was made under s33(6) and did not depend on “significant harm” attributable to the conduct of F, but rather on all the circumstances including the adverse consequences to the applicant and the children of continuing the partial nesting arrangement.[44]Standing back, the high level of mutual parental hostility was not fertile ground for making an interim child arrangements order which required the parents to live together under the same roof with the children for most of the time, and in turns to vacate the family home for short periods. That arrangement may have improved matters from when there were no arrangements in place, but it was unlikely to be sustainable. It was expressly stated to be a temporary arrangement when it was imposed in September 2025. It had proved to be unsuccessful in protecting the welfare of the children. In circumstances where there is considerable mutual parental hostility which is damaging to the children, the family has ample means to find alternative accommodation, but neither parent will move out of the family home, what is the court to do? FLA 1996 s33 provides the court with a range of powers in relation to occupation which may be applicable to many different sets of circumstances. In this case, the power could properly be exercised to terminate the interim nesting arrangement by excluding F from the family home and varying the interim child arrangements, even in the absence of a finding that he was guilty of any reprehensible conduct.[45]The Judge applied his mind to the welfare of the children when considering the appropriate interim child arrangements pending the final hearing in September 2026. He was expressly mindful of the period of time before the final hearing and of the fact that the children would be on school holidays for most of that period. He considered but rejected the proposal for an equal division of time with each parent. He considered that the children needed breathing space from parental conflict and disruption. Hence, he divided their time as he did, with them spending much less time away from the home with the father than at home with the mother. I would not expect a line by line analysis of the welfare checklist in an ex tempore judgment concerning interim child arrangements which would short-lived. However, the notes of judgment include, between them, references to s1(3) (of the Children Act 1989) and the children’s welfare. The Judge can, of course, be taken to be very familiar with the Children Act 1989 s1. I am fully satisfied that he made an entirely proper welfare determination about the interim child arrangements. Other judges may have given more or less time with the father, but that is not the issue on an appeal. The decision on interim child arrangements was one which the Judge was entitled to make in exercising his judgment as to what was in the best interests of the children. He had the advantage of having heard and seen the parents give evidence as well as having the detailed written evidence of Ms H. The Judge was not wrong to make the interim child arrangements or that he made and there was no procedural error.[46]It is in the nature of any injunction and any interim child arrangements orders that they involve both risks as well as potential benefits for the children and the parties. I am satisfied that the Judge made himself aware of the relevant risks and benefits, made no error of law in his self-direction, and came to a decision which he could reasonably have reached in the exercise of his broad discretion and, in relation to the interim arrangements, his judgment as to the best interests of the children.[47]F complains that the Judge did not adequately consider the alternative of imposing a full nesting arrangement whereby there would be no time when both parents were living in the family home. It might have involved one parent living in the home with the children in week one, the other in week two, and so on. Each parent would stay elsewhere when the other was living in the home. The parents would never be in the home together. But the Judge referred to that in his judgment and considered that F lacked insight when he proposed that as a solution. F seemed to believe that it would remove all sources of conflict. It would however place both parents in hotel or other temporary accommodation for substantial periods of time, involve them in moving in and moving out of the home repeatedly, and still involve the children having the ‘to and fro’ of widely contrasting parenting approaches within the home that nesting entails (for this family at least). The Judge was entitled to conclude that it would be detrimental to the well-being of the applicant and the children.[48]I accept that there is a risk that the exclusion of F would paint him as the “culprit” in the eyes of the children but that is but one factor and it is something that can be managed. In any event the interim arrangements would not prejudice the eventual final order which was only two months away (now one month away). The decision was not about how he was perceived and other considerations relevant to the children’s well-being and welfare were of overriding importance.[49]In conclusion: 49.1. I am satisfied that there is a real prospect of success on ground 1 of the appeal but the appeal under ground 1 is dismissed. 49.2. There is no real prospect of success on appeal in respect to grounds 2 to 5 of the grounds of appeal and no other reason why the appeal should be heard on those grounds. 49.3. For the avoidance of doubt, permission to appeal the interim child arrangements order as well as the occupation order is refused. 49.4. As necessarily follows, I would have dismissed the appeals on all grounds had permission been given on grounds 2 to 5 as well as ground 1.[50]I announced my decision at the hearing on 3 August 2026 and, after allowing time for discussions and following further short submissions, I ordered that F must vacate the family home by 4pm on 6 August 2026. The children will remain at home with M over the first weekend thereafter but will spend time with F as per the Judge’s interim child arrangements order over the week commencing 10 August including over the weekend at the end of that week. I was informed that F had applied for a variation of the interim child arrangements to allow him to take the children on holiday later this month. That hearing is listed to be heard shortly in the Central Family Court.

Order

Conduct) [2000] 2 FLR 36, Grubb v Grubb sub nom G v G (Occupation Order) [2009] EWCA Civ 976 (a decision on permission to appeal only), Dolan v Corby [2011] EWCA Civ 1664, and Re L (Occupation Order) [2012] EWCA Civ 721. The principles that emerge from the statutory provision and from those authorities can be summarised as follows: 20.1. Entitlement to apply under s33(1) must be established as a pre-condition to the making of an occupation order. 20.2. An order requiring a respondent to vacate the family home and overriding his or her property rights is a serious order which will only be justified in exceptional circumstances. 20.3. An occupation order requiring a spouse’s removal from their family home is always serious but is likely to be most serious when made against a spouse to whom alternative accommodation is not readily available – G v G (Occupation Order) [2009] (above). 20.4. The proper approach is to consider first whether the evidence established that the applicant or a relevant child was likely to suffer significant harm attributable to the conduct of the respondent if an order were not made. If the answer to that question was ‘yes’, then under s33(7) an order must be made unless the respondent was likely to suffer significant harm if the order were made and that harm would be as great as, or greater than, the harm attributable to the conduct of the respondent which was likely to be suffered by the applicant or relevant child if the order was not made. If the answer was ‘no’ to the first question, then the court nevertheless has a broad discretion under s33(6) - Chalmers (above) applied in Dolan and Re L (both above). 20.5. In considering for the purposes of s33(7) whether any significant harm likely to be suffered by the application or any relevant child was attributable to the conduct of the respondent, the important factor was the effect of the conduct on the applicant or child, rather than the intent of the respondent. Lack of intent might be relevant, but of itself it does not mean that any such harm could not be attributed to the respondent’s conduct – G v G (Occupation Order: Conduct) [2000] (above). 20.6. The discretion under s33(6) is broad and should not be confined within a “straightjacket not consonant with its terminology” – G v G (Occupation Order) [2009] (above). It may be exercised in the absence of physical violence and even where there was no reprehensible conduct by the spouse to be excluded. Harm might be attributable to both parents’ conduct and their presence together in the home – Re L (above).