It can often be tempting for the Family Court to impose an exclusion requirement on one of the parties, such as an exclusion from the family home, but it is important to be aware of the limitations on the court’s powers to make such an order.

A recent case at the Central Family Court involved a 12-month Supervision Order imposed with a provision excluding the father from the family home until further order. This was presumably requested by the local authority to protect the children from the risk posed by the father, without the need to remove them from the mother’s care.

The legal reasoning may have been that it had been imposed as a Prohibited Steps Order, which of course is compatible with a Supervision Order, but not a full Care Order. An exclusion requirement can also be contained in an Interim Care Order and an Emergency Protection Order under the specific provisions of section 38A and section 44A of the Children Act 1989, respectively.

Whilst at first glance an exclusion requirement appears to be a type of PSO by prohibiting a party from going to a certain place, it is not capable of being a PSO (D v D [1996] 2 FLR 273). This is despite the fact that attending the family home might otherwise be thought to fall squarely within the definition of a step taken by a parent “in meeting his parental responsibility”.

The logic of this limitation, according to Ward LJ, is that it would “interfere with the clear right of occupation of one party”. Rather, occupation rights are to be dealt with under the provisions of the Family Law Act 1996. Section 33 of that Act allows for orders ousting parties from the family home but, crucially, only on the application of a person who has lived, is living, or intends to live in the family home, and who has “home rights” over that property.

The Family Court cannot normally dictate the living arrangements of adults of its own volition. To do so is to interfere with their human right to a private and family life. Such interferences are only proportionate in the Article 8 sense where, for example, there is a risk to health, safety and well-being, as in the case of a non-molestation order.

This point is well illustrated by the above scenario: once the 12-month Supervision Order had expired, only the exclusion requirement remained. Until the court discharged that part of the order, the parents were prevented from living together at the behest of the local authority, even though the local authority could not have applied for an Occupation Order under the 1996 Act.

A potential consequence for the mother was that, although the exclusion requirement against the father could be removed as ultra vires, the local authority could then reapply to take the children into care. In this case, the court did not authorise that route, but the social services will continue to be involved with the family to ensure that the father does not pose any further risk to the children.

Mark Smith is a barrister specialising in crime, extradition, family and civil work. Mark accepts instructions in private family and care proceedings, as well as applications for non-molestation orders. He also has experience of financial remedy proceedings, including FDR and final hearings.