M v D
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 21 May 2021 |
| Neutral Citation | [2021] EWHC 1351 (Fam) |
| Court | Family Division |
| Docket Number | Case No: MA20F01181 |
| Date | 21 May 2021 |
[2021] EWHC 1351 (Fam)
THE HONOURABLE Mr Justice MacDonald
Case No: MA20F01181
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Sitting Remotely
Mr Simon Crabtree (instructed by Makin Dixon Solicitors) for the Appellant
The First Respondent was not given notice of the hearing
Hearing dates: 30 April 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice MacDonald
This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.
INTRODUCTION
This is an appeal against a without notice order made on 17 December 2020 by District Judge Colvin at the Family Court sitting in Manchester dismissing, for want of jurisdiction, the appellant's application for a non-molestation injunction pursuant to s.42 of the Family Law Act 1996.
The appeal from the learned District Judge was listed before me pursuant to the provisions of FPR PD30A para 2.1 on the grounds that the appeal raises an important point of principle or practice, namely the meaning of the term “associated person” in of s. 62(3) of the Family Law Act 1996. The appellant is represented by Mr Simon Crabtree of counsel, who did not appear below. In circumstances that I will come to, the application to the learned District Judge for injunctive relief was made without notice to the respondent to that application. Accordingly, the respondent has not been given notice of this appeal against the dismissal of that without notice application.
In circumstances where it appeared to the court that the point of law being argued on this appeal may affect the Ministry of Justice (namely, the meaning of the term “associated person” in of s. 62(3) of the Family Law Act 1996), that the point was being argued in a case where that department is not represented and that that department may wish to be represented, the court invited the Attorney General to indicate whether he wished to intervene or to instruct an advocate on behalf of the relevant government department in this appeal, pursuant to the terms of paragraph 5(i) of the Memorandum agreed between the Lord Chief Justice and the Attorney General on 19 December 2001. On 27 April 2021 the Attorney General's Office indicated that the Attorney General did not wish to intervene nor to instruct an advocate on behalf of the Ministry of Justice.
In determining this appeal, I have been greatly assisted by the comprehensive written and oral submissions of Mr Crabtree. I am particularly indebted to Mr Crabtree for the assiduously fair manner in which he has conducted the appeal, assisting the court not only by making all the submissions that could reasonably be advanced in support of his client's appeal but, in circumstances where the respondent does not have notice of these proceedings, pointing up for the court the contrary points that might have been taken by the respondent had he been given notice. In addition, I have had the benefit of reading the appeal bundle, which bundle includes a transcript of the judgment given by the learned District Judge on 17 December 2020. Having heard Mr Crabtree' submissions, I reserved judgment on the appeal and now proceed to set out my decision and the reasons for it.
BACKGROUND
The background to the matter can be stated shortly for the purposes of this judgment.
On 17 December 2020 the appellant applied without notice for a non-molestation order pursuant to s.42(2) of the Family Law Act 1996 against the respondent. By that application, the appellant alleged that the respondent had been verbally abusive and threatening to the appellant, including by means of abusive telephone calls, social media posts and in person. The threats were alleged to include threats of rape, murder and the threat of acid attacks. Prior to the application being made by the appellant in December 2020, the appellant's sister and niece had made applications for, and been granted, a non-molestation orders against the respondent in November 2020.
The respondent to the appellant's application under s.42(2) of the Family Law Act 1996 is the step-son of the appellant's sister by reason of her marriage to the respondent's father, now deceased. The respondent's father died in 2020. Within this context, the respondent was referred during the hearing before the learned District Judge, and has been referred to during the course of this appeal, as the appellant's “step-nephew”, i.e. the stepson of her sister. I will adopt that nomenclature for the purposes of this judgment where appropriate.
As I have noted above, having considered the appellant's application, on 17 December 2020 District Judge Colvin dismissed that application for want of jurisdiction. I have the benefit of a transcript of the judgment given by the learned District Judge on that date, which it is convenient to set out in full:
“[1] The matter that is listed before me is an application for a non-molestation order on an ex parte basis. I have had regard to s. 45 and s. 42 of the Family Law Act 1996. In support of the application there is a statement of evidence from [the appellant], dated 17 December 2020. Of course, ex parte applications are reserved for those matters which are exceptionally urgent and it is said on behalf of the applicant that this case meets that threshold. Reliance was placed upon the recent incidents of 15 December 2020, in which a Facebook message was sent which says as follows:
“You fucking evil bitch. Tell your whore of a sister God will punish you and her for killing [W]. You fucking whore. Tell [X] God will punish her for the rest of her miserable, fat, oppressed, lonely, so-called life and tell them hood rats [Y], [Z] to grow a brain between them and see the lies their dumb bitch mother has been telling them over the last year. She lied about Dad's illness, health, and everything else”.
[2] I am satisfied that, in the context of the evidence that is before the Court, that the threshold at s.45 of the Family Law Act 1996 is met, and so I am going to deal with the application on an ex parte basis.
[3] I have invited Ms Begum to make submissions to me in relation to whether or not the parties are associated persons for the purposes of legislation. Pursuant to s. 62 of the Family Law Act 1996, the Court only has the power to grant a non-molestation order in respect of associated persons, and subsection 62(3) sets out who those associated persons may be. The applicant relies upon s. 62(3)(d), namely that the parties are “relatives”. The relationship between the parties, I am told, is that the respondent is the step-nephew of the applicant. The evidence on the point is limited to a single paragraph in the applicant's statement of evidence.
[4] I have been referred to s. 63(1)(a) and (b) of the Family Law Act 1996 which, of course, provides an interpretation for me to apply in respect of s. 62. It lists the following people as being relatives. Under paragraph (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”.
It goes on to state at (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”
[5] It is said on behalf of [the appellant], and it is accepted that this is a “borderline matter”, that I should adopt a purposive approach to the interpretation of the statute and, although step-nephew is not referred to in the statute, stepmother and stepfather are, and then in paragraph (b), niece and nephew are mentioned. It is submitted that “step nephew” falls somewhere between the two and bearing in mind the incidents of domestic violence, the Court should adopt the purposive approach in respect of the interpretation of statute, and grant the order as sought.
[6] Ms Begum wished to rely upon case law in support of the application but did not provided me with a copy of the case. She attempted to paraphrase a very small section of the case which I did not find to be particularly helpful.
[7] In my judgment, I am not satisfied, on the balance of probability, that the respondent and applicant are associated persons for the purposes of s. 62(d). I am 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). If it were the intention of the statute to include a step-nephew I would have expected the statute to set that out in terms. It uses the phrases...
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