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M v D [2021] EWHC 1351

This case concerns the meaning of the term "associated person" in s. 62(3) of the Family Law Act 1996.

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An ex-parte application was made for a non-molestation order by the applicant under s. 42(2) of the Family Law Act 1996. The respondent to the application (who had no notice of either the original application or of the subsequent appeal heard by MacDonald J) was the applicant's step nephew (her sister's stepson).

At first instance the application was dismissed for want of jurisdiction. District Judge Colvin was not satisfied that the applicant and the respondent were 'associated persons' for the purposes of s. 62(d) or 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 'stepmother', 'stepfather', niece and nephew but not stepdaughter, stepson or indeed step-nephew. The appeal against the lower court's decision 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.

In dismissing the appeal and concluding that 'step-nephew' did not fall within the terms of the Act, the judge concluded that the inclusion of particular 'step' relatives and not others under the Act had been deliberate and not an oversight. MacDonald J also separated those relatives defined under s. 61(3)(a) as those of 'lineal' descent and those under s. 61(3)(b) as collateral relatives. Parliament had included certain step-relatives within s. 61(3)(a) but not so within s. 61(3)(b). Having surveyed the Law Commission report that informed the 1996 Act and Hansard the court 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" and the need for that category to be confined to "close" or "immediate" relatives. He noted in particular that Parliament was concerned with not creating a new tort of molestation by failing to ensure that the protection available under the Act to 'associated persons' was clearly defined. The judge also concluded that s.63(1) of the Act is, in speaking of a "nephew…whether of full blood or of half-blood or by marriage or civil partnership", not wide enough to encompass a person in the position of the respondent. The applicant would have an alternative remedy under the Protection from Harassment Act 1997.

Case summary by Rachel Cooper, Barrister, Coram Chambers

For full case, please see BAILII