The meaning of the term “associated person”- s.62 (3) of the Family Law Act 1996

Why is it important to show that the parties are “associated persons” for the purposes of FLA 1996 (FLA 1996)?

When the court make an injunctive order such as a Non-Molestation or Occupation Order, certain criteria must be met. We are all aware that it is only possible to apply for such an order under the Family Law Act 1996 if you can prove to the Court that you fall under the category of being an associated person. Simply put, your relationship with the person against whom you are seeking the Order must fall within one of the categories laid out in statue. S. 62 of the FLA 1996 gives a comprehensive list defining cohabitants, relevant child, and associated person.

S. 62 (3) provides that for the purposes of this Part, a person is associated with another person if—

(a)they are or have been married to each other.

(aa)they are or have been civil partners of each other;

(b)they are cohabitants or former cohabitants.

(c)they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder.

(d)they are relatives.

(e)they have agreed to marry one another (whether or not that agreement has been terminated);

(ea)they have or have had an intimate personal relationship with each other which is or was of significant duration.

(eza) they have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether that agreement has been terminated).

(f)in relation to any child, they are both persons falling within subsection (4); or

(g)they are parties to the same family proceedings (other than proceedings under this Part).

The recent judgment in the case of M v D (Family Law Act 1996 : Meaning of “Associated Person”) [2021] EWHC 1351 (Fam) (21 May 2021) (bailii.org), highlights an important issue regarding the meaning of the term “associated person” in s. 62 (3) FLA 1996.

M v D [2021] EWHC 1351 (Fam)

Background

On 17 December 2020 the Applicant issued an ex-parte application seeking a Non-Molestation Order under s.42(2) FLA 1996. The Applicant made allegations that she had been verbally abused and threatened by the Respondent. Such threats included threats of rape, murder, and acid attacks.

The Respondent is the Applicant’s step-nephew (stepson of the Applicant’s sister by reason of marriage). By virtue of the application being ex-parte, the Respondent had no knowledge of either the original application or of the subsequent appeal.

At first instance the District Judge dismissed the Applicant’s application for want of jurisdiction. The Applicant relied upon s. 62(3)(d), namely that the parties are “relatives”. The District Judge was not satisfied that the Applicant and the Respondent were ‘associated persons’ for the purposes of s. 62(3). The Judge was also not satisfied that the relationship of step-nephew falls within the definition of s. 62(3)(d) or the interpretation set out at s. 63(1)(a) or (b). It was noted that the statute does include the term ‘stepmother’, ‘stepfather’, niece and nephew but not stepdaughter, stepson or indeed step-nephew.

The Applicant appealed and the matter was listed before Mr Justice MacDonald pursuant to the provisions of FPR PD30A para 2.1 on the grounds that the appeal raised an important point of principle or practice.

The Appeal

The appeal boiled down to the central issue of whether, “The learned District Judge erred in law when he found that the appellant and the respondent were not associated persons within the meaning of the Family Law Act 1996.”

Two main arguments were advanced. First, that s. 63(1)(a) of the FLA 1996 expressly includes certain types of step-relatives and, accordingly, the term “nephew” in s.63(1)(b) should be read as including a “step-nephew”. s. 63(1)(b) defines “relative” to include a “nephew…by “marriage”. Second, that “in the context of the ever-expanding complexities of modern family dynamics and in a society in which different relationships and different means of legitimised conception are recognised” the term “relative” in s.62(3)(d) should be construed to include step-nephew.

Judgment

MacDonald J dismissed the appeal and concluded that ‘step-nephew’ did not fall within the meaning of the FLA 1996. In his very helpful judgment MacDonald J sets out the law and case law eloquently. He concluded that it was plainly obvious on the statute, that step-nephews are not expressly provided for as a category in s.63(1) of the FLA 1996, this was deliberate, rather than being an oversight.
MacDonald J stated, “Parliament was prepared to include certain step-relationships with respect to family relationships of lineal descent but decided not to include step-relationships in respect of any of the collateral family relationships stated by s 63(1)(b) as falling within the definition of “relative” for the purposes of the Act.” MacDonald J separated relatives defined as those of ‘lineal’ descent and those as collateral relatives.

MacDonald J concluded that when it came to who could apply for injunctive relief under the 1996 Act, Parliament was expressly concerned with the degree of genealogical proximity that would allow a person to fall into the category of “associated persons”. There was a need for that category to be confined to “close” or “immediate” relatives. MacDonald J clarified that the Applicant would have an alternative remedy under the Protection from Harassment Act 1997. MacDonald J concluded that the Respondent was plainly incapable of being brought within the meaning of “associated person” under s.62(3) of the 1996 Act

The appeal was dismissed.

Conclusion

During his judgment MacDonald J analysed the ever-evolving society we find ourselves living in. MacDonald J assessed that it is true families are extended and ever more complex. However, if Parliament was not to risk creating a new tort of molestation, in crafting a statute to protect members of a family from domestic abuse they had to draw a line somewhere. MacDonald J was very clear that had Parliament intended to include “step-nephews” as a category it would have said so in terms in s.63(1).

To conclude, although families may find themselves in ever more complex situations, this does not automatically give rise to being an “associated person” as defined in statute. That does not however mean they are prevented from seeking protection and should explore other avenues.