Keeping it in the family: M v D (Family Law Act 1996 : Meaning of "Associated Person") [2021] EWHC 1351 (Fam)

Introduction

The court was concerned with an appeal against the dismissal of an application made without notice in December 2020. DJ Colvin (‘the District Judge’), in the Family Court sitting in Manchester, had dismissed the appellant’s application for a non-molestation order under s.42 of the Family Law Act 1996 (‘FLA 1996’) for want of jurisdiction. The appeal was itself also made without notice to the respondent.

The case came before MacDonald J (‘the judge’) in the High Court pursuant to FPR PD30A para 2.1, on the grounds that the appeal raised an important point of principle or practice; specifically, the meaning of the term ‘associated person’ in s.62(3) FLA 1996. The Ministry of Justice declined to intervene.

Background

The appellant’s original application in December 2020 was made on the basis that the respondent had been verbally abusive and threatening to the appellant. These threats had been made in telephone calls, social media posts and in person, and included threats of rape, murder and of acid attacks. Prior to this application, the appellant’s sister and niece had made applications for, and had been granted, non-molestation orders in November 2020.

The respondent is the stepson of the appellant’s sister. The respondent’s father (the appellant’s sister’s former husband) died in 2020. The respondent was therefore described as the appellant’s ‘step-nephew’.

The judge set out the District Judge’s decision in the original application in December 2020:

• The threshold of seriousness was met in order for the court to deal with the application ex parte.
• The appellant’s case in relation to being an associated person was that she was a ‘relative’ of the respondent.
• The appellant accepted that their case was a ‘borderline matter’ in terms of whether or not she was an associated person.
• The District Judge was not satisfied on the balance of probabilities that the respondent and appellant were ‘associated persons’ for the purposes of s.62(d) and the application was dismissed for want of jurisdiction.

Grounds of appeal

The appellant argued that the District Judge had erred in law when he found that the appellant and respondent were not associated persons and advanced two substantive submissions:

• Firstly, s.63(1)(a) FLA 1996, which provides definitions for ‘relative’, expressly includes types of step-relatives and therefore that s.63(1)(b) should be read so as to include ‘step-nephew’. Read in this way, s.63(1)(b) would include a ‘nephew’ by ‘marriage’, thus encompassing the appellant’s relationship to the respondent.
• Secondly, and more broadly, the term ‘relative’ in s.62(3)(d) should be construed as including step-nephews or nephews-in-law, reading the statute purposively and taking into account the complexities of modern family dynamics.

The appellant also argued that the death of the respondent’s father did not impact on the appellant’s status in relation to the respondent; the ‘step-nephew’ relationship subsisted, and the law could, and ought to, recognise continuing familial relationships after death. Relying on the law of probate to further this argument, the appellant submitted that the Administration of Estates Act 1925 was geared to preserve familial relationships after death, albeit the appellant conceded that there was no statutory definition of ‘step-nephew’ in the 1925 Act.

The judge further noted that the appellant declined (‘wisely’, in the judge’s words) to argue, in line with s.62(3)(g) FLA 1996, that the appellant could also be an associated person on the basis that the appellant and respondent could potentially have been parties to the same family proceedings because the appellant’s sister and niece had already obtained non-molestation orders against the respondent.

The law

The judge set out the relevant provisions of ss.42, 62 and 63 of the FLA 1996. The judge further noted that more recent legislation (s.76(7) of the Serious Crime Act 2015 and the proposed text of the Domestic Abuse Bill 2019-21) has used adopted the definition of ‘relative’ from s.63(1) FLA 1996.

Although the appellant had not been able to find any authority in which the scope of s.62(3)(d) FLA 1996 had been directly in issue, the judge adverted to a number of authorities which touched on the matter:

• The Court of Appeal had noted that the purpose of Part IV of the FLA 1996 had been to cover a wide range of family and quasi-family relationships in Chechi v Bashir [1999] 2 FLR 489, per Butler-Sloss LJ.
• In G v F (Non-Molestation Order: Jurisdiction) [2000] Fam 186, Wall J had adverted to the importance of not construing the definitions in the FLA 1996 too narrowly so as to exclude borderline cases where victims required protection from domestic violence and where it would still be open to the court, on finding jurisdiction, to assess the case on its merits.
• The judge explored the meaning of ‘nephew’, noting that its ambit had widened over time in English law, developing to include the children of half-brothers and sisters (In Re Daoust [1944] 1 All ER 443, per Vaisey J).
• Further, the judge noted the dicta of Lord Griffiths in Pepper v Hart [1993] AC 593, who had set out the proper approach to the interpretation of statutes, whereby the court was not bound to take a strict constructionist view of the statute but could adopt a purposive approach in order ‘to give effect to the true purpose of the legislation’, including examination of ‘much extraneous material’ that could illuminate the intentions of Parliament.

Accordingly, the judge went on to examine the relevant Law Commission Report (Law Com No. 207) on Family Law Domestic Violence and Occupation of the Family Home (1992), which had recommended a broader interpretation of the sorts of family relationships that should be covered for the purposes of domestic violence protection, albeit this should not extend to Parliament creating effectively a new tort of harassment, available to anyone against anyone.

The judge also set out excerpts of speeches from Hansard, including one made by Baroness Scotland on behalf of the Government in the House of Lords, who argued in 2004 against a suggestion that the definition of ‘associated person’ could be extended to include ‘cousins’, on the basis that this would draw the legislation too widely, not being easily definable. The Government of the time notably settled on the term ‘first cousin’ in the Domestic Violence, Crime and Victims Act 2004, which amended the definition of ‘relative’ in s.63 FLA 1996.

The judge also considered the alternative legal avenues available to the appellant, including under the Protection of Harassment Act 1997, noting that an injunction could be granted under this statute which would provide very similar protection as that available under s.42 FLA 1996.

Discussion

The judge held that the appellant’s permission to appeal would be granted, but that the appeal would be dismissed for a number of reasons:

• Step-nephews are not provided for as a category in s.63(1) FLA 1996, in contradistinction to other step-relationships that are expressly listed in s.63(1)(a)
• The conclusion to be drawn from this contradistinction is that Parliament’s omission was deliberate.
• S.63(1)(a) cannot simply be used as an aid to the interpretation of s.63(1)(b), since the former concerns lineal relationships, whilst the latter sets out collateral relationships.
• It follows that Parliament was content to include certain step-relationships in respect of relationships of lineal descent, but that it would not go so far as to include collateral step-relationships.
• Parliament was clearly concerned to delimit the genealogical proximity which would be covered by ‘associated persons’ (e.g., cousins v first cousins), and provided for ‘close’ or ‘immediate’ relatives.
• The definition of ‘nephew … by marriage’ (s.63(1)(b)) could not be interpreted to include the respondent but meant the spouse of the applicant’s niece or nephew.

The judge accepted that this decision would mean a constraint on the application of the FLA 1996, even though domestic violence was no less prevalent in so-called ‘blended families’ in modern society. Moreover, he noted that this might be considered a ‘peculiar outcome’ in circumstances where the only bar to jurisdiction being found was that the respondent was the step-nephew rather than the nephew of the appellant. Ultimately, however, this would appear to have been a distinction set out by Parliament, and the judge ruled according to his considered interpretation of Parliament’s intentions.

The judge was satisfied that the appropriate protection for the appellant could be found in the Protection from Harassment Act 1997 and that the FLA 1996, read purposively, could not encompass the appellant’s relationship to the respondent. A step-nephew could not be an ‘associated person’ for the purposes of s.62(3).

Accordingly, the judge declined to address further the question of the impact of the appellant’s brother-in-law’s (the respondent’s father) death, since the disposal of the case made this unnecessary.

Henry Pritchard, Pupil Barrister at 1 Hare Court