B v B (Occupation Order) [1999]

1. Facts:

• In B v B, a married couple lived together with two children: one child was from the husband’s previous relationship, and the other was their child together.

• The husband was violent, prompting the mother to move out with their child to escape the violence.

• The mother and her child were placed in unsatisfactory temporary accommodation, while the husband and the child from his previous relationship remained in the family home.

• The mother sought an order to evict the husband and his child from the flat. The court had to consider whether making such an order would cause significant harm to either party.

2. Outcome:

• The court determined that the significant harm test was not satisfied for issuing the order to evict the husband and his child.

• It was found that the greater harm would fall on the husband and his child if the order was made, compared to the harm the mother and her child would suffer if the order was not made.

• The decision thus favoured not evicting the husband and his child, focusing on the potential adverse impacts of eviction on them.

3. Impact and Analysis:

• Focus on Housing Situation: The case has been criticised for prioritising the housing situation over the respondent’s violence. The focus on the potential harm caused by eviction overshadowed the primary issue of domestic violence and its impact on the safety of the mother and her child.

• Dangerous Choice: The ruling presents a difficult dilemma for victims of domestic violence: they face the choice between staying in a violent environment to meet the harm test or leaving to ensure safety but potentially failing to secure the necessary legal protection.

• Hypothetical Nature: The decision has been criticised for its hypothetical nature, as it required the court to predict the likely outcomes of making or not making the order. This approach can complicate decisions and potentially overlook immediate safety concerns.

• Significant Harm Test: The case underscores the challenges of applying the significant harm test, particularly in situations involving domestic violence. The test requires a careful balance of potential harms to all parties, which can be difficult to navigate when dealing with violent situations.

• Balancing Interests: The case highlights the need to balance the interests of all parties involved, including the safety of the victim and the welfare of the other family members. It suggests a need for more nuanced approaches that better account for the complexities of domestic violence situations.