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No.53 Legal Limited

Licensed Body Law Firm (ABS)

Judicial Review

By Lea_NSWPosted on Posted in Abuse & Injunctions, Blogs, General, Judicial ReviewNo Comments on Judicial Review

Occupation Order

Occupation Order: Martins v Central Family Court

Introduction

An Occupation Order under the Family Law Act 1996 is an order used to regulate who may live in a family home, often in the context of domestic abuse or relationship breakdown. 

Whilst these orders are typically issued by family courts, they are not immune from scrutiny. The case of R (Martins) v Central Family Court [2025] EWHC 1719, demonstrates how judicial review can be used to challenge such an order on legal and procedural grounds.

What is an Occupation Order (OO)?

An occupation order determines who can live in a property and under what conditions. There are eligibility criteria which this article is not going to cover. An OO may:

Exclude one party from the home entirely
Grant exclusive occupation to one party
Impose conditions on how the property is used by the parties

Orders can be made under sections 33 to 38 of the Family Law Act 1996, depending on the applicant’s legal interest in the property and relationship to the respondent.

The Martins Case 

An occupation order was made by HHJ Oliver in the Central Family Court in July 2024. The order excluded Martins from the family home, where his young son resided. Martins argued that the order was procedurally unfair and legally disproportionate, especially given its impact on his ability to maintain contact with his child.

What does Judicial Review do?

Judicial review does not re-try the facts of a case. Instead, it examines whether the decision:

Was made within the scope of legal powers (legality)
Followed fair procedures (procedural fairness)
Was reasonable and proportionate (irrationality or unreasonableness)

The High Court considered Martins contentions as to whether:

The family court had properly applied the balance of harm test under section 33(7) of the Family Law Act 1996.
The decision-making process respected procedural fairness, including Martins’ right to be heard.
The occupation order was proportionate, given the interference with Martins’ Article 8 rights (respect for private and family life).

Judgment

The Administrative Court held that:

The family court had jurisdiction to make the order and had considered the relevant statutory criteria.
However, the judge’s reasoning was insufficiently detailed, particularly regarding the balance of harm and the child’s welfare.
The High Court quashed the occupation order and remitted the matter for reconsideration, emphasising the need for transparent and reasoned decision-making in family proceedings.

Key Takeaways

Occupation orders must be justified with clear reasoning, especially when they affect parental rights and child contact.
Judicial review can be a remedy where family court decisions lack procedural rigour or fail to balance competing rights.
The case reinforces the importance of proportionality and fairness in protective family law orders.

Conclusion

Judicial review remains a vital safeguard in family law, especially where protective orders intersect with fundamental rights. 

The Martins case serves as a reminder that even urgent or emotionally charged decisions must be legally sound and procedurally fair.

Robust representation, with a solid case, elegantly put to the court, can avoid situations such as this.

If you need help, please contact us.

Judicial Review

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