When considering an occupation order excluding a parent from the property, what is the interplay between such an order and any consequential changes to child arrangements? In KM v LN, Poole J clarified that whilst the health, safety and well-being of any child is relevant, the children’s welfare is not the paramount consideration and s1(3) Children Act 1989 is not the governing statutory test.

Applications for occupation orders excluding one party from the property often arise alongside disputes concerning the children. Whilst any decision regarding interim child arrangements within such proceedings must apply the paramountcy principle and conduct a welfare analysis, Poole J outlined the distinction in Family Law Act (FLA) proceedings, where the Court’s consideration is focused on any child’s health, safety and well-being when granting an occupation order which consequently requires a change in child arrangements. The CA statutory framework is not applicable in FLA proceedings; the Court is to consider any child’s welfare through s33, specifically their health, safety and well-being.

The potential impact of an occupation order on interim child arrangments is not unusual. The issue before Poole J was whether the trial judge had erred in law through his failure to apply the paramountcy principle and his failure to conduct an analysis of the welfare checklist in the FLA proceedings when as a consequence of granting an occupation order, the child arrangements order had to be altered in the interim. Poole J rejected this proposition.

The judgment succinctly outlines the applicable considerations when the Court is faced with tackling the interplay between occupation orders and interim child arrangements, in that:

1. ‘If it appeared to the court that the applicant or any relevant child would be likely to suffer significant harm attributable to the conduct of the respondent if an order under s33(7) were not made, the balance of significant harm under s33(7)(a) and (b); or,

2. If it as 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 ss33(6) including s33(6)(c).’ at [31].

The proceedings concerned an occupation order application under the FLA, which arose in the context of the parties’ separation, with concurrent financial remedy proceedings and CA proceedings concerning A and B. At the time of determination of the FLA application, the financial remedy proceedings were listed for final determination some three weeks later, and final determination of the CA proceedings was listed for just over two months later. Both parties and the children were residing in the home under a partial nesting arrangement which had been in place since September 2025, underpinned by an interim child arrangements order. For the most part, both parents resided in the home, but for defined periods, one would leave and reside in a hotel funded by F, so that the other could spend time alone with the children.

M’s application was for an occupation order excluding F from the home entirely. The trial judge was assisted by evidence from M, F and the allocated social worker. Her evidence was plain that the parents continuing to cohabit was harmful to both children and the parental conflict, ongoing proceedings and Local Authority involvement were particularly having a significant impact on A’s emotional wellbeing. The allocated social worker concluded that ‘a change in circumstance within the family environment is vital’ and the children being caught in the middle of parental conflict was the most harmful factor in the children’s lives.

The family had significant means, with there being no concerns about financing alternative accommodation.

Against this backdrop, Poole J was required to determine whether the trial judge had properly considered the children and the impact on the interim child arrangements, and whether that consideration had been in accordance with the requisite test.

Poole J’s judgment is clear that the Court is not bound to consider the paramountcy principle or conduct a welfare analysis in accordance with s1(3) of the CA in the confines of FLA proceedings when any such order would have a direct effect on existing child arrangements. The appropriate consideration in this context is centred around either the balance of significant harm under s33(7)(a) and (b) or any effect of the revised arrangements on the health, safety and well-being of the parties or any relevant child. This approach provides a distinct focus within FLA proceedings.

Poole J took the view that the trial judge had correctly considered all of the circumstances, including the impact on the well-being of the children. He heard the strong evidence of the allocated social worker, that the harm these children were suffering as a direct result of their current living arrangements, along with her recommendation that the family environment needed to change. He had considered whether the occupation order, and therefore the consequential change of child arrangements, was in the best interests of the children. The trial judge had found that it was ‘patently obvious’ that the current arrangements were disruptive for A and B, and the conflictual environment needed to end. He also noted that a continuation of the nesting arrangement, in any form, would risk causing emotional harm to M.

KM v LN is helpful in directing the Court’s considerations towards any impact on child arrangements orders within FLA proceedings. The well-being of any child involved must be considered within the context of the FLA framework, rather than by treating welfare as the paramount consideration under the Children Act 1989.

The full judgment can be accessed here: https://caselaw.nationalarchives.gov.uk/ewhc/fam/2026/2123?from_date=2026-01-01&to_date=2026-08-13&court=ewca%2Fciv&court=ewhc%2Ffam&court=ewfc

Teia Yule