High Court hears appeal against occupation order excluding father from family home

In KM v LN [2026] EWHC 2123 (Fam), the High Court considered an appeal against a Family Law Act 1996 occupation order excluding a father from the family home, alongside revised interim child arrangements.

In KM v LN [2026] EWHC 2123 (Fam), handed down on 7 August 2026, Mr Justice Poole in the High Court (Family Division) dealt with an appeal against an occupation order made under section 33 of the Family Law Act 1996 (FLA 1996). The parties are anonymised: the appellant is the father (F) and the respondent the mother (M).

Background

The parties' marriage broke down in 2024, but the whole family continued to live in the family home. Child arrangements and financial remedy proceedings followed, and M applied for an occupation order and a non-molestation order. The family's resources were such that interim alternative accommodation for one parent was easily affordable.

In September 2025 the court imposed an interim "partial nesting" arrangement. The children stayed in the home and both parents lived there for most of the week. For defined periods, including alternate weekends, one parent stayed in a hotel so the other could spend time alone with the children.

On 3 July 2026 HHJ Middleton-Roy in the Central Family Court ordered F to leave the home by 15 July 2026 and excluded him from occupation for six months. The judge also varied the interim child arrangements. Final hearings in the financial remedy and child arrangements proceedings were listed within weeks. F appealed, and on 13 July Poole J stayed the occupation order and the consequential variation of the child arrangements order pending the appeal.

The issues

F argued that the judge decided the case only through section 33 of the FLA 1996 and not also through section 1(3) of the Children Act 1989. He said the judge failed to consider material evidence from him and from the local authority, and that the order was a disproportionate interference with Article 8 rights. M's side said the appeal was an attempt to re-argue the case and that the Children Act point had not been put to the judge.

The law the court set out

Poole J summarised principles from earlier cases. An order requiring someone to leave the family home and overriding their property rights is serious and will only be justified in exceptional circumstances.

The court first asks whether the applicant or a relevant child is likely to suffer significant harm attributable to the respondent's conduct if no order is made. If so, under section 33(7) an order must be made unless the respondent or a relevant child would be likely to suffer significant harm if it were made, and that harm would be as great as or greater than the harm if it were not. If not, the court still has a broad discretion under section 33(6). That discretion can be exercised without physical violence and even where there was no reprehensible conduct by the person excluded.

Poole J added that the children's welfare is not the court's paramount consideration under section 33. Where occupation of a family home is closely linked to child arrangements, however, the court ought to consider the impact on the health, safety or well-being of the parties and any relevant child of the revised child arrangements, and of not making an order.

Sources

• KM v LN (Appeal: Occupation Order and Interim Child Arrangements) [2026] EWHC 2123 (Fam), High Court (Family Division), 7 August 2026