Can zonal restrictions act as an occupation order in disguise?  

Domestic abuse continues to be a pervasive issue, costing society an estimated £84.4 billion annually. The scale of this issue became more apparent during the Covid-19 pandemic, when the country faced lockdown and reports of domestic abuse surged during this period, reaching an all-time high. These levels have remained relatively consistent, with the National Police Chief’s Council (NPCC) and College of Policing declaring violence against women and girls a “national emergency” (July 2024). Specifically, in March 2024, reports showed that over 1 in 4 women aged 16 and over had experienced domestic abuse (27%). For men, the figure was around 1 in 7 (13.7%) (Government response to ‘Shifting the scales: Transforming the criminal justice response to domestic abuse’). 

The legal definition of domestic abuse and coercive control, as adopted by the courts and outlined in PD 12J Family Procedure Rules 2010, is: 

• Domestic abuse: “any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional…” 

• Coercive behaviour: “an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten the victim.” 
•  

The courts benefit from the injunctive orders under the Family Law Act 1996 (‘FLA 1996’) as tools at their disposal: 

• Non-Molestation Orders: act for the protection of parties and relevant children, by prohibiting the other party, for example, from intimidating, harassing, threatening, or pestering. 

• Occupation Orders: exclude the other party from occupation of the home. They can extend to exclusion from a specified area around the home, if necessary.  

However, of the 9,374 injunctive orders made in January to March 2025, 94% were non-molestation orders and only 6% were occupation orders (Family Court Statistics Quarterly; July to September 2024). This discrepancy in figures poses an obvious question; why is it occupation orders are granted at a much scarcer rate than non-molestation orders?  

From a legal standpoint, one clear reason lies in the differing legal tests. Significantly, the test for occupation orders sets a higher bar. 

For instance, the test for non-molestation orders, outlined in S42(5) FLA 1996, requires the court to consider “all the circumstances, including the need to secure the health, safety and well-being of the applicant and relevant child.” This wording casts a broader net than the two-stage test for occupation orders where the court must consider the ‘balance of harm’ at S33(7) FLA 1996 and the criteria found in S33(6) FLA 1996. The discretionary test requires the court to consider: 

• The respective housing needs and housing resources of the parties and any child. 

• The respective financial resources of the parties. 

• The likely effect of any order, or any decision by the court not to make such an order on the health, safety or well-being of the parties and any relevant child. 

• The conduct of the parties in relation to each other and otherwise. 

Furthermore, the Practice Guidance: Non-Molestation Injunctions under the Family Law Act 1996, issued by Sir Andrew MacFarlane in July 2023, emphasises that any order barring a respondent from their home, particularly at a “without notice” hearing, requires very careful consideration and specific evidence to justify such an extensive infringement of the respondent’s rights. 

However, just because the test is harder to satisfy, this does not render it untenable. The specific facts of each case are integral to the success of the application, as there is no blanket approach. For example, in Grubb v Grubb [2009] EWCA Civ 976 and Re L (Children) (Occupation order: Absence of domestic violence), the Court of Appeal found in both cases that physical violence is not required for exceptionality to be found, and occupation orders were granted under S33(6).  

The case of Dolan v Corby [2011] EWCA Civ 1664 further clarified this, with the court recognising that: 

“an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature.” 

Therefore, while a degree of realism is necessary for those seeking such orders, it should not act as a deterrent for those who truly need such protection. 

The higher standard for occupation orders stems from their clear infringement on a person’s Article 8 rights under the European Convention on Human Rights (ECHR). The gravity of such orders was emphasised by Thorpe LJ in Chalmers v Johns [1999] 1 FLR 392 when he described them as “draconian” and stated that they “should be restricted to exceptional cases…” as “an order that overrides proprietary rights…is an order that is only justified in exceptional circumstances.” 

Given the high threshold required for occupation orders, a tactical question arises: Can the same protection be achieved by attaching a zonal exclusion clause to a non-molestation order? The short answer is: not always. 

The Family Court Practice commentary offers valuable clarification: 

“a “stay away” clause…could be expressed as part of an occupation order but it is not necessary to make an occupation order solely for that purpose and [it] can be included in a non-molestation order. Such a provision should not be included as a matter of routine, must be proportionate and necessary and supported by evidence (R v R [2014] EWFC 48). 

A “get out” order i.e. an order requiring a party to leave, cannot form part of a non-molestation order and must be made as part of an occupation order.” 

The most helpful case in deciphering this issue is Re Al M (Non-molestation Application) [2020] EWHC 3305 (Fam). This case concerned the daughter of a Jordan King seeking to vary and extend a non-molestation order made against her husband, the Ruler of Dubai and Prime Minister of the United Arab Emirates, who was planning to purchase an estate neighbouring her family home. The applicant sought to prohibit the respondent from: 

1. Entering, at ground level, a restricted zone surrounding Castlewood; 
2. Entering the airspace above ground level at 1,000 feet or below in a 700-metre radius around Castlewood; 
3. Proceeding with the acquisition of any interest whatsoever in Parkwood; 
4. Acquiring any interest in or renting any property or land whose boundary falls within a more widely drawn restricted zone. 

Whilst the unusual facts of this case will not apply to most that come to the family courts, Sir Andrew McFarlane’s wording at [36] acts as useful guidance: –  

“It is important to be clear that the analysis that follows relates to this case and to similar cases where an exclusion provision is sought that would not interfere with a respondent’s existing right to occupy property by virtue of an estate or interest in the property or ‘home rights’ as defined by FLA 1996, s 30. The power under the FLA 1996 to regulate the occupation of property and, if justified, impose an exclusion around the relevant property, is contained in ss 30-38. This case concerns the court’s power to prohibit entry to a prescribed zone in order to protect an applicant from molestation under FLA 1996, s 42, in circumstances where the prohibition would not interfere with any existing property rights.“ 

Sir Andrew McFarlane further clarified at [42]: – 

‘The structure of s 42 is different. The purpose of s 42 is focused upon protection and does not involve regulation of property rights. It is therefore understandable that s 42 merely defines a non-molestation order as an order containing a provision prohibiting molestation. As is accepted, the definition of molestation is not to be found in the statute, and has been deliberately maintained on a broad and flexible basis by the courts so that it can be adapted to the particular circumstances of any individual case where the facts justify the court’s intervention.’ 

In essence, if an individual possesses home rights under S33 FLA 1996, these rights can only be regulated and restricted through an occupation order. However, if such rights do not exist, the family courts can attach a zonal restriction to a non-molestation order, though this is not automatic and will only be granted when fully justified by the facts. Therefore, while the bar is high for obtaining an occupation order against someone with home rights, it stands as an important, distinct legal recourse that should be pursued on its own merits, rather than as a supplement to a non-molestation order. 

Author: Lauren Kingham 

Lauren Kingham can be instructed by emailing her clerks at clerks@northampton-chambers.co.uk or by telephone at 01604 636271.  

 Disclaimer:  

This publication is intended to be a general summary of the relevant law and/ or guidance at the time of writing. It should not replace legal advice tailored to your specific circumstances. No liability is accepted for any omission or error wherein.   

  References:  

1. Government response to ‘Shifting the scales: Transforming the criminal justice response to domestic abuse’ – GOV.UK 
2. Call to action as violence against women and girls epidemic deepens | College of Policing 
3. Grubb v Grubb [2009] EWCA Civ 976  
4. Re L (Children) (Occupation order: Absence of domestic violence) 
5. Dolan v Corby [2011] EWCA Civ 1664 
6. Chalmers v Johns [1999] 1 FLR 392 
7. Re Al M (Non-molestation Application) [2020] EWHC 3305 (Fam)