Continuing my series of occasional posts on important family law cases from the past, I come to a case that was considered very important at the time it was decided in 1983 and which does still get a mention in family law textbooks, but is no longer of that great a significance. However, for reasons I shall explain it sticks in my memory and was one of the first cases that came to mind when I was thinking about writing these posts. The way the case has dwindled in significance also demonstrates the way in which lawyers must constantly update their knowledge – what was learned in 1983 will probably be of little or no use in 2014!
The case in question is the House of Lords decision in Richards v Richards. It particularly sticks in my memory because it was just about the first really ‘big’ family law case that was decided after I first began practising family law. I can still recall the discussion of the case between family lawyers and in family law journals, and I think it even merited a memorandum to all fee earners from the head of the family law department in the firm where I was working at the time!
Richards v Richards was about domestic violence. Domestic violence was perhaps even more important a topic for me to keep up with back then than it became later, as I dealt with so many domestic violence applications. The reasons for this were twofold: firstly in those days the police generally didn’t want to get involved with domestic violence disputes and therefore the only remedy available for victims was to seek a domestic violence injunction in the family courts – hence there were more cases for family lawyers to deal with. The second reason was that back then my firm offered a full legal aid service (remember that?) and the vast majority of domestic violence victims required legal aid (in fact, I can hardly recall dealing with a single privately funded domestic violence application in my entire career). Anyway, we were busy, and domestic violence was a very large part of our work.
So, what was Richards about? Unfortunately, I can’t find a full report of the case online so I can’t give a link to it, but essentially it involved a wife who had issued an unreasonable behaviour divorce petition containing particularly ‘flimsy’ allegations against her husband. She had left the former matrimonial home, and wanted to return there with the children. She therefore sought what we then called an ‘ouster order’, requiring her husband to vacate the property. Now, obviously an order requiring a person to leave their home is a serious one for a court to make, and usually it requires some fairly serious allegations of domestic violence to be proved against that person. However, here the wife simply said that she couldn’t bear to be in the same household as the husband.
The judge at first instance did not consider that the wife had any reasonable grounds for refusing to live with the husband, and said that it would be “thoroughly unjust” to order him out of the house. However, he did make such an order, as he felt that he had to do so in the interests of the children.
The husband appealed to the House of Lords. Their Lordships held that the welfare of any children was not the paramount consideration when dealing with applications for ouster orders. Accordingly, they overturned the order.
Richards subsequently lost its importance primarily, I think, because the law on domestic violence was reformed by Part IV of the Family Law Act 1996. That Act requires the court contemplating the making of an ouster order (now called an ‘occupation order’) to consider whether the applicant or any relevant child is likely to suffer significant harm as a result of the respondent’s conduct, and balance that against any harm to the respondent or child if the order is made.
Nevertheless, Richards will retain a place in my personal list of important cases.
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