Judgment - Fitzpatrick (A. P.) v. Sterling Housing Association Ltd.  continued

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As Viscount Dilhorne then stated that he would have been content to agree with the judgment of Megaw L.J. and the speech of Lord Diplock it is clear that when he said that it was for the judge to give the word "family" its ordinary natural meaning he accepted that it was within the limits permitted by the law, as is also clear from his first sentence.

Therefore I turn to the speech of Lord Diplock in the Carega case (with which Lord Elwyn-Jones, Lord Fraser of Tullybelton and Lord Russell of Killowen agreed) to determine whether the law as there stated permits the answer that Mr. Fitzpatrick was a member of Mr. Thompson's family. In that case there was a close platonic relationship between the elderly tenant and a young man and they treated themselves as aunt and nephew and were so regarded by others. In his judgment the county court judge said:

     "He stuck by her to the end. Nobody else in her family did so. Had it not been for the presence of the defendant, in the last five years she would have been obliged to enter a nursing home or else her family would have had to arrange to receive her into their midst. She was able to remain in her home, to be looked after by a much younger person. . . . Their relationship was sensitive, loving, intellectual and platonic."

and his conclusion was that:

     "Lady Salter and this defendant achieved through their relationship what must surely be regarded in a popular sense, and in common sense, as a familial nexus. That is to say, a nexus such as one would find only within a family. I am sure Shakespeare's man would say: 'Yes, it is stranger than fiction, but they established a familial tie. Everyone linked to her through the blood was remote by comparison with the defendant.'"

The Court of Appeal reversed this decision and the decision of the Court of Appeal was upheld by this House. The reason for upholding the decision of the Court of Appeal was stated as follows by Lord Diplock at page 931E:

      "Gammans v. Ekins was a case of co-habitation by an unmarried couple, a relationship which raises questions upon which I find it unnecessary and inappropriate to enter for the purpose of disposing of the instant appeal. Ross v. Collins, on the other hand, was much like the instant case, save that the sexes of the older party, who was devotedly cared for, and the younger party who did the caring, were reversed. As my reason for dismissing the instant appeal, I would not seek to improve upon what was said there by my noble and learned friend (then Russell L.J.), at p. 432:

     "Granted that 'family' is not limited to cases of a strict legal familial nexus, I cannot agree that it extends to a case such as this. It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man--where the link would be strictly familial had there been a marriage, or where the link is through adoption of a minor, de jure or de facto, or where the link is 'step-,' or where the link is 'in-law' or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man."

    Accordingly for a claimant to be a member of the tenant's family there must be a relationship to the tenant by marriage or blood or adoption, or a link which resembles such a relationship and which can be broadly recognised as such, and in that case it was not sufficient that there was a loving, caring and supportive relationship between the young man and the tenant, Lady Salter.

    It can be argued with some force that the adoption by Lord Diplock of the passage from the judgment of Russell L.J. in Ross v. Collins does not constitute a ratio decidendi binding upon your Lordships in the present appeal. This is because at the commencement of his speech Lord Diplock stated that the appeal concerned a relationship where there had been no connection by way of regular sexual intercourse (past or present) between the claimant and the tenant and he then stated at page 930A:

      "The facts of the instant case, if they are not unique, are certainly most unusual, and for that reason they do not, in my opinion, provide a suitable occasion for this House to undertake a general consideration of what persons may be included in the expression 'a member of the original tenant's family' where at the time of the tenant's death there did exist between him and the claimant to a statutory tenancy by succession a relationship of one or other of the various kinds to which I have referred above. In particular, the difficult question posed by Dyson Holdings Ltd. v. Fox [1976] Q.B. 503 as to the extent, if any, to which changed social attitudes towards cohabitation between unmarried couples and the offspring of such liaisons may have enlarged the meaning of the expression 'family' in the Rent Act 1968 does not arise in the instant case and is best left for consideration in the light of the actual facts of a case in which it does arise."

I consider that the reference to "cohabitation between unmarried couples and the offspring of such liaisons" shows that Lord Diplock's earlier reference to connection by way of regular sexual intercourse referred to a heterosexual couple and not to a homosexual couple. However, if it is not a binding decision, in my opinion the passage from the judgment of Russell L.J. adopted by Lord Diplock gives clear guidance as to the approach which should be taken by your Lordships in determining the limits of the term "family" in paragraph 3(1), and I consider that Mr. Fitzpatrick does not qualify as a member of Mr. Thompson's family because he had no relationship with Mr. Thompson by marriage or blood or adoption and no link with him which was broadly recognisable as creating de facto such a relationship.

    Mr. Blake relied on the decision of the Court of Appeal in Dyson Holdings Ltd. v. Fox [1976] Q.B. 503 in support of the submission that the term "family" is a word of flexible meaning which can change with the passage of the years, and that in the light of the changed public attitude to homosexuality the term should now include a stable and lasting homosexual relationship. In that case a woman had lived with the tenant of a house as if she were his wife for 21 years until his death, but they had never married and had no children. The Court of Appeal held that the woman was a member of the tenant's "family" within the meaning of the Rent Acts. In the judgments reference was made to the earlier decision of the Court of Appeal in Gammans v. Ekins [1950] 2 K.B. 328 where it was held that a man who had lived for 20 years with a female tenant did not acquire the status of membership of the tenant's family. Referring to Gammans v. Ekins James L.J. said at page 511C:

     "The strongly expressed view was that as at 1949, the relevant date, the popular meaning of 'family' did not include the male consort of a female tenant whose relationship had all the incidence of a marriage short of the birth of a child and all the outward appearances of marriage. Between 1950 and 1975 there have been many changes in the law effected by statute and decisions of the courts. Many changes have their foundation in the changed needs and views of society. Such changes have occurred in the field of family law and equitable interests in property. The popular meaning given to the word 'family' is not fixed once and for all time. I have no doubt that with the passage of years it has changed. The cases reveal that it is not restricted to blood relationships and those created by the marriage ceremony. It can include de facto as well as de jure relationships. The popular meaning of 'family'in 1975 would, according to the answer of the ordinary man, include the defendant as a member of Mr. Wright's family."

    In my opinion the decision in Dyson does not assist Mr. Fitzpatrick's case and does not support an argument that because the Court of Appeal brought a stable and lasting heterosexual relationship outside marriage within the ambit of the term "family", a court should now, in the light of society's changed attitudes, bring a stable and lasting homosexual relationship within the ambit of that term.

    Parliament has recognised the decision in Dyson but did so in 1988 in paragraph 2(2) of Schedule 1 to the 1977 Act by words which expressly confine the relationship outside marriage to a heterosexual relationship. Moreover in his judgment in Dyson at page 511D James L.J. said:

     "The cases reveal that [the word 'family'] is not restricted to blood relationships and those created by the marriage ceremony. It can include de facto as well as de jure relationships."

Therefore, notwithstanding that in Carega Lord Diplock reserved comment on Dyson, the decision can be regarded as coming within the principle stated by Russell L.J. that "'family' . . . requires . . . at least a broadly recognisable de facto familial nexus." In Dyson the relationship was recognisable as a de facto marriage and therefore could be regarded as a family relationship. Stephenson L.J. stated the point, correctly in my opinion, in the following way in Watson v. Lucas [1980] 1 W.L.R. 1493, 1501F:

      "The ordinary man has to consider whether a man or a woman is a member of a family in the light of the facts, and whatever may have been held before Dyson Holdings Ltd v. Fox [1976] Q.B. 503 I do not think a judge, putting himself in the place of the ordinary man, can consider an association which has every outward appearance of marriage, except the false pretence of being married, as not constituting a family. If it looks like a marriage in the old and perhaps obsolete sense of a lifelong union, with nothing casual or temporary about it, it is a family until the House of Lords declares (as Mr. Semken reserves his right to ask them to declare) that Dyson Holdings Ltd v. Fox was wrongly decided because the reasoning of the majority was wrong. The time has gone by when the courts can hold such a union not to be 'familial' simply because the parties to it do not pretend to be married in due form of law."

    In Gammans v. Ekins Jenkins L.J. had considered the relationship of an unmarried heterosexual couple who had children and at page 332 had stated the matter in the same way as Stephenson L.J.:

     "The situation assumed would present de facto what might be described as the equivalent of a marriage, with the natural consequences of a marriage."

Therefore I consider that for there to be a de facto family relationship there must be the outward appearance of a de jure family relationship to which it is equivalent, but because the essence of marriage is a relationship between a man and a woman there is no de jure family relationship to which a homosexual relationship is equivalent and, moreover, paragraph 2(2) makes it clear that a homosexual relationship is not to be regarded as a de facto equivalent of marriage.

    The approach advocated on behalf of Mr. Fitzpatrick was adopted by the Court of Appeals of New York in Braschi v. Stahl Associates (1989) 544 N.Y.S. 2nd 784 which held that the term "family" in legislation protecting from eviction a person who had been living with a deceased tenant, included an adult lifetime partner of the same sex as the tenant whose relationship was long term and characterised by emotional and financial committal and inter-dependence. In the majority judgment Titone J. stated at pages 788-789:

     "The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. This view comports both with our society's traditional concept of 'family' and with the expectations of individuals who live in such nuclear units."

He then cited definitions of "family" from Webster's Dictionary--"a group of people united by certain convictions or common affiliation" and from Black's Law Dictionary--"primarily, the collective body of persons who live in one house and under one head or management," and stated:

     "Hence, it is reasonable to conclude that, in using the term 'family', the Legislature intended to extend protection to those who reside in households having all of the normal familial characteristics."

    The definitions cited by Titone J. accord with the second meaning of family given by the Oxford English Dictionary (the first meaning being "the servants of a house; the household"):

     "The body of persons who live in one house or under one head, including parents, children, servants, etc."

but not with the third and narrower meaning:

     "the group consisting of parents and their children whether living together or not; in wider sense all those who are nearly connected by blood or affinity."

In my opinion in this jurisdiction it would be contrary to Lord Diplock's judgment in Carega to give the wider meaning to the term "family" and accordingly I would not follow the approach of the New York Court.

It was implicit in Mr. Blake's argument that when protection was given in 1920 to a member of the tenant's family by the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 the courts would not have held that a homosexual partner was a member of the tenant's family. Mr. Blake's submission was that the term "family" is always speaking and having regard to the greatly changed public attitude towards homosexuality it can now be given a meaning which includes a homosexual couple. In support of this submission Mr. Blake relied on the speech of Lord Wilberforce in Royal College of Nursing v. D.H.S.S. [1981] A.C. 800, 822:

      "In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed."