M v D (Family Law Act 1996 : Meaning of "Associated Person")

For the purposes of Part IV of the Family Law Act 1996, the definition of “relative” in section 63(1) does not include a step-nephew. The statutory reference to a nephew “by marriage” ordinarily concerns the spouse of a niece or nephew, not a child acquired through a sibling’s remarriage. A purposive construction is required in domestic-abuse cases, but it cannot enlarge the carefully defined categories of associated persons beyond the statutory language and structure. The omission of step-nephews from the collateral relationships in section 63(1)(b), contrasted with the express inclusion of specified lineal step-relations in section 63(1)(a), was deliberate. A person outside those categories may have an alternative remedy under the Protection from Harassment Act 1997.

The appellant applied without notice for a non-molestation order under section 42 of the Family Law Act 1996 against the respondent. The respondent was the stepson of the appellant’s sister and was described as the appellant’s step-nephew. The Family Court dismissed the application for want of jurisdiction, holding that the parties were not associated persons because the respondent was not a relative within section 63(1).

The appellant appealed on the basis that “nephew” or “nephew by marriage” included a step-nephew, or that a purposive construction required that result. The central issue was whether a step-nephew falls within the statutory meaning of “relative” and therefore “associated person”.

1. Permission and disposition. Permission to appeal was granted because the appeal raised an important point of principle or practice. The appeal was dismissed, and there was no order as to costs.
2. Purposive construction. Part IV of the Family Law Act 1996 is intended to provide swift and accessible protection from domestic abuse in family relationships and closely analogous relationships. The court must adopt a purposive construction and should not decline jurisdiction in a borderline case unless the facts are plainly incapable of falling within the statutory criteria. That principle does not permit the court to disregard the statutory boundaries.
3. Meaning of “relative”. Section 63(1)(a) concerns lineal relationships and expressly includes specified step-relations, including stepfather, stepmother, stepson and stepdaughter. Section 63(1)(b) concerns collateral relationships, including nephews and nieces, but contains no equivalent category of step-nephew or step-niece. The statutory structure and the Parliamentary materials indicated that the omission was deliberate and that the legislation was confined to close or immediate relatives.
4. “Nephew by marriage”. In the context of section 63(1)(b), the phrase refers to the spouse of the applicant’s niece or nephew. It does not include a person who became the applicant’s step-nephew through the marriage of the applicant’s sister to that person’s parent. Probate authorities concerning the broader meaning of “nephew” did not determine the distinct statutory question of protection from domestic abuse.
5. Alternative remedy and final conclusion. The exclusion of step-nephews may produce a narrower protective scheme for blended families, but the Protection from Harassment Act 1997 may provide an alternative remedy where its conditions are satisfied. The respondent was plainly incapable of being brought within section 62(3) as an associated person, so the original dismissal for want of jurisdiction was correct. The question whether the respondent’s father’s death affected the step-nephew relationship was not decided.

• High Court (Family Division): permission to appeal granted; appeal against the Family Court’s dismissal for want of jurisdiction dismissed; no order as to costs.
• Family Court sitting in Manchester: District Judge Colvin dismissed the without-notice application for a non-molestation order on 17 December 2020.