M v D: Step-nephew is not 'associated person' for FLA 1996
|Image: Public Domain, via Piqsels (please excuse my little play on words...)|
Last week I discussed here a case in which the court was prepared to give, shall I say, a very liberal interpretation to a statute, in order to enable the applicant access to the relief that they sought. Today, in M v D, the story was rather different...
It will be well known to all family lawyers that a person applying for the protection of an occupation or non-molestation order under Part IV FLA 1996 must be associated with the person against whom they seek the order.
Section 62(3) (as amended) tells us that a person is associated with another person if—
1. They are or have been married to each other;
2. They are or have been civil partners of each other;
3. They are cohabitants or former cohabitants;
4. 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;
5. They are relatives;
6. They have agreed to marry one another (whether or not that agreement has been terminated);
7. They have or have had an intimate personal relationship with each other which is or was of significant duration;
8. They have entered into a civil partnership agreement (whether or not that agreement has been terminated);
9. In relation to any child, they are both parents of the child, or have or have had parental responsibility for the child; or
10. They are parties to the same family proceedings (other than proceedings under Part IV).
And section 63(1) tells us that:
"“Relative”, in relation to a person, means -
(a) The father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s spouse, former spouse, civil partner or former civil partner, or
(b) The brother, sister, uncle, aunt, niece, nephew or first cousin, whether of first blood or of half-blood, or by marriage or civil partnership, of that person or of that person's spouse or former spouse,
and includes, in relation to a person who is cohabiting or had cohabited with another person any person who would fall within paragraph (a) or (b) if there parties were married to each other or were civil partners of each other"
OK, so what about a "step-nephew", i.e. here the the stepson of the applicant's sister?
Sorry, said Mr Justice MacDonald, but the term "associated person" cannot be interpreted so as to include them, even if a purposive approach to the interpretation of the statute is adopted. Step-nephews are not expressly provided for as a category in s.63(1), and the court cannot read the term "nephew" in as including a "step-nephew", as that is clearly not what Parliament intended.
However, as MacDonald J pointed out, Parliament has provided a remedy for a person in the position of the applicant here, under the Protection from Harassment Act 1997, a fact which clearly 'allows' a strict interpretation of the FLA.