So who is an associated person? M v D [2021] EWHC 1351 (Fam) and its approach to FLA 1996 s62(3)(d).

Whether a step-nephew is an ‘associated person’ under the Family Law Act 1996 (M v D)

Family analysis: In M v D the appellant appealed against a refusal to make a non-molestation order under the Family Law Act 1996 (FLA 1996) in relation to a respondent who was the stepson of the appellant’s sister (ie, the appellant’s step-nephew). The district judge at first instance had found that the relationship between the appellant and the respondent was not one which fell within the jurisdiction of FLA 1996 for the making of a non-molestation order. That finding was upheld on appeal. Alex Fletcher, barrister, at Normanton Chambers summarises the issues.

M v D [2021] EWHC 1351 (Fam), [2021] All ER (D) 86 (May)

What are the practical implications of this case?

In M v D the fundamental question on appeal was whether the term ’associated person‘ in FLA 1996 could be interpreted so as to include the respondent, the appellant’s step-nephew. It appears that there are few, if any, authorities in which the scope of the term ’relatives‘ in FLA 1996, s 62(3)(d) has been directly in issue. For practitioners this case is a reminder that in cases where the relationship between prospective parties in applications for protection under FLA 1996 is not the more common spouse or cohabitant (or former spouse or cohabitant), to carefully check the nature of the parties relationship to ensure that they fall within the category of associated persons. Even allowing for the purposive interpretation of the statute there are some relatives that are incapable of being brought within the meaning of an associated person under FLA 1996, s 62(3). Where protection under FLA 1996 is not available, an alternative remedy may be available under the Protection from Harassment Act 1997 (PHA 1997), subject to the qualifying criteria under PHA 1997 being met.

What was the background?

The appellant applied (without notice) for a non-molestation order pursuant to FLA 1996, s 42(2) against the respondent. The appellant alleged that the respondent had been verbally abusive and threatening via telephone, social media and in person. The appellant’s sister and niece had previously been granted non-molestation orders against the respondent. The respondent was the appellant's 'step-nephew', namely the stepson of her sister. The respondent was referred to throughout the application and the subsequent appeal as the step-nephew.

The appellant relied upon FLA 1996, s 62(3)(d), namely that the parties were relatives and the fact that FLA 1996, s 63(1)(a) and (b) provides an interpretation which, it was submitted, could be interpreted purposively to allow the respondent to be considered as a relative of the appellant. The appellant accepted that the application and the interpretation sought were ‘borderline’ (at [para 5]), but argued that the statute could be interpreted to allow the application and further that the application was necessary for the protection of the appellant from the respondent.

The district judge dismissed the application at first instance holding that he was not satisfied, on the balance of probability, that the respondent and appellant were associated persons for the purposes of FLA 1996, s 62(d), or that the relationship of step-nephew fell within the definition of FLA 1996, s 62(3)(d), or the interpretation set out at FLA 1996, s 63(1)(a) or (b).

What did the court decide?

The appeal was listed before Macdonald J in the High Court (Family Division) pursuant to the provisions of Family Procedure Rules 2010 (FPR 2010), namely FPR 2010, PD 30A, para 2.1 on the basis that the appeal raised an important point of principle or practice.

The grounds of appeal were that the district judge had erred in law in finding that the appellant and the respondent were not associated persons within the meaning of FLA 1996

The appellant argued that FLA 1996, s 63(1)(a) expressly includes certain types of step-relatives and that the term ‘nephew’ in FLA 1996, s 63(1)(b) should be read as including a step-nephew. Further, that FLA 1996, s 63(1)(b) defines relative so as to include a nephew by marriage, and it was submitted that as a step-nephew was a nephew acquired by marriage that the section should, by definition, allow for the respondent to be included within the meaning of relative. It was submitted that as a result the district judge had erred by failing to acknowledge that a nephew could be acquired by marriage.

The appellant further argued that, in any event, the term relative in FLA 1996, s 62(3)(d) should be construed as including step-nephew or nephew-in-law. It was submitted that such a purposive interpretation was necessary and correct in the current times where there were increasingly complex family relationships in the modern society.

Macdonald J conducted a helpful review of the relevant authorities, including in relation to guidance on the interpretation to be given to the term associated person.

In G v F (Non-Molestation Order: Jurisdiction) [2000] 2 FLR 533, the court held that where domestic abuse was concerned, the court should apply a purposive construction to the statute (FLA 1996) and that jurisdiction should not be declined unless the facts of the case were incapable of being brought within the wording of the statute.

Macdonald J referred to the Law Commission report (Law Com No 207, 1992) and its conclusion (at the time of its publishing) that ‘a broader approach to providing protection from domestic abuse by means of a non-molestation order was merited’. In particular he considered  the recommendations in the report as to the need to widen the range of applicants eligible to be given the protection of a non-molestation order, while not making the range too wide, and creating a new tort of harassment or molestation. Further, para 3.22 of the report set out the factors considered by the Law Commission which arrived at the categorisation of applicants provide for in FLA 1996, s 63(1)(a) and (b).

In M v D, Macdonald J granted permission to appeal the district judge’s decision, however he then dismissed the appeal on the basis that the heart of the appeal relied upon the definition of the term relative in FLA 1996, s 63(1) being capable of being extended to include the appellant’s step-nephew within the term nephew as prescribed by FLA 1996, s 63(1)(b) and that it was clear that step-nephews were not included within the definitions provided by FLA 1996, while other step-relatives were expressly provided for. The approach taken to the appeal was therefore that where the relationship relied upon by the appellant was not expressly provided for in the legislation, this must have been a deliberate act of Parliament in the drafting of FLA 1996, therefore it could not be included by purposive interpretation.

Macdonald J went on to find that the appellant’s comparison of probate law precedent and its interpretation of the term nephew (see dicta by Vaisey J in In Re Dauost [1944] 1 All ER 443) in order to seek to include the term step-nephew within the definitions given in FLA 1996 was not compatible with the question at hand in the appeal and the interpretation of the same term when dealing with the protections to be provided to those at risk of domestic abuse.

Finally, Macdonald J confirmed that the appellant had the ability to apply to the courts for protection from harassment or molestation from the respondent through PHA 1997 and that even a purposive interpretation of FLA 1996 and the term associated person would not be able to provide the applicant with the protection of a non-molestation order.

Alex Fletcher is a barrister at Normanton Chambers, and a member of LexisPSL’s Case Analysis Expert Panels. If you have any questions about membership of LexisPSL’s Case Analysis Expert Panels, please contact [email protected].