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

(back to preceding text)

    It can be seen from the decided cases that the concept of "family" developed over time so as to extend to unmarried heterosexual couples. In Gammans v. Ekins [1950] 2 K.B. 328 the Court of Appeal firmly rejected the proposition that a man who had lived for twenty years with a female tenant, "masquerading" as Asquith L.J. put it, as husband and wife, was a member of the tenant's family. On the other hand where the couple had had children and they all lived in the house together it was held that the mother was a member of the father's family (Hawes v. Evenden [1953] 1 W.L.R. 1169). A quarter of a century after the Gammans case, in Dyson Holdings Ltd. v. Fox [1976] Q.B. 503, it was held that in the changed social conditions then prevailing the unmarried female partner of a male tenant who had lived with him for twenty-one years was a member of the tenant's family, even although there were no children of their association. Indeed the same result was reached in Watson v. Lucas [1980] 1 W.L.R. 1493 where the parties could not have been legally married to each other because the male partner was already married. On the other hand in Helby v. Rafferty [1979] 1 W.L.R. 13 the relationship between a heterosexual couple who had lived together was held to lack the permanence and stability necessary to constitute a family relationship. Usually a long period of cohabitation is required. But even that is not always an essential. In Chios Property Investment Co. Ltd v. Lopez (1987) 20 H.L.R. 120 cohabitation for two years still enabled the woman to qualify as a member of the tenant's family. Neither in that case nor in Dyson did the absence of any children prevent the person from ranking as a member of the other's family. The recognition by the courts that heterosexual partnerships should rank as families for the purpose of the succession to statutory tenancies was taken up by Parliament and made a matter of express enactment in paragraph 2 of Schedule 4 to the Housing Act 1988, inserting paragraph 2(2) into Schedule 1 to the Rent Act 1977.

    The judges in Helby v. Rafferty had difficulty in accepting that a word which had been repeated throughout the successive Rent Acts could change its meaning from time to time. But as matter of construction I see no grounds for treating the provisions with which are concerned as being in the relatively rare category of cases where Parliament intended the language to be fixed at the time when the original Act was passed. The rule of contemporary exposition should be applied only in relation to very old statutes (Governors of the Campbell College Belfast v. Commissioner of Valuation for Northern Ireland [1964] 2 All E.R. 705). The general presumption is that an updating construction is to be applied (Bennion on Statutory Interpretation, 3rd ed. p. 686). Such an approach was recently adopted by this House in Reg. v. Ireland [1998] A.C. 147. But in any event in relation to the problem in the present case the meaning of the word "family" in its sense of a group united by some tie or bond such as blood, marriage or personal affection may not have as matter of language altered. What has changed are the precise personal associations to which the concept may now be applied. The essential meaning of the word has not changed over the intervening years, but changes in social habits and opinions may affect the propriety of its application to new circumstances. Thus the test for its application comes to be the ordinary popular understanding of the word at the date when its falls to be applied. That in the present case is the date of the death of the original tenant.

    In Ross v. Collins [1964] 1 W.L.R. 425, where an unpaid housekeeper was held not to be a member of the tenant's family, there being no evidence to establish a relationship of father and daughter, Russell L.J. observed (p. 432):

     "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."

In that case Russell L.J, recognised that "family" was not limited to cases of a strict legal familial nexus, but that it still required "a broadly recognisable de facto familial nexus." He considered that that could be found:

     "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."

    Certainly it has proved difficult to establish a family relationship where the connection is usually by blood, other than in cases where there is a relationship like that of parent and child. We are not concerned in the present case with the problems of the extent to which persons not in a relationship of sexual intimacy may qualify as members of a family. But it may be observed that in relation to these other kinds of case, blood and adoption have not been prescribed as limits. In Brock v. Wollams [1949] 2 K.B. 388 the defendant had resided with the tenant since her childhood and had continued to reside with him until his death apart from a period of some three years. She had not been legally adopted by him but was nevertheless held to be a member of his family. In Jones v. Whitehill [1950] 2 K.B. 204 a niece of the tenant's wife went to live with her aunt and her aunt's husband, the tenant, to look after them in their declining years. It was held that in accordance with the ordinary use of language she was a member of the tenant's family, essentially, as it would seem, on account of her dedication to caring for them, although, as was pointed out in Ross v. Collins (p. 431), there was the pre-existing relationship of being a niece of the tenant's wife. In Carega Properties S.A. v. Sharratt [1979] 1 W.L.R. 928 a young man of 24 formed a friendship with a widow of 75 and lived with her on terms which were described as platonic and filial. His mother was alive and would not accept that the widow should speak of him as her son, and he referred to the widow as his aunt. Lord Diplock expressly refrained from any general consideration of the scope of the statutory phrase or the extent to which changed social attitudes might have enlarged the meaning of the word "family." The decision must accordingly be regarded purely as one turning on its own facts. It may be noted that, as appears from the report of the decision in the Appeal Court [1978] 2 All ER 948, 953, no suggestion was made in argument of any change in the meaning of the phrase "member of the tenant's family" in relation to the facts in that particular case.

    In so far as some more general guidance is sought to be found from the observations by Russell L.J. in Ross v. Collins I do not find it altogether helpful in seeking the substance of the bond which constitutes a group as a family to use the expression "familial nexus" which still leaves the word "familial" to be explained. Nor do I regard his list of examples where the nexus may be found as intended to be comprehensive or exhaustive. It is however to be noted that he does not exclude the possibility of two strangers establishing a "familial nexus" as a cohabiting couple, whether heterosexual or homosexual, although a relationship which was merely artificial would not suffice, and a platonic relationship might have difficulty in qualifying. Problems may yet arise with regard to relationships other than the kind of relationship which is before us in the present case. I do not find it necessary to explore the further application of family membership beyond such cases and I find little guidance in the cases, such as Carega, which have been concerned with other kinds of relationship.

    The problem in the present case is to determine what, short of blood or marriage, may evidence the common bond in a partnership of two adult persons which may entitle the one to be in the common judgment of society a member of the other's family. It seems to me that essentially the bond must be one of love and affection, not of a casual or transitory nature, but in a relationship which is permanent or at least intended to be so. As a result of that personal attachment to each other other characteristics will follow, such as a readiness to support each other emotionally and financially, to care for and look after the other in times of need, and to provide a companionship in which mutual interests and activities can be shared and enjoyed together. It would be difficult to establish such a bond unless the couple were living together in the same house. It would also be difficult to establish it without an active sexual relationship between them or at least the potentiality of such a relationship. If they have or are caring for children whom they regard as their own they would make the family designation more immediately obvious, but the existence of children is not a necessary element. Each case will require to depend eventually upon its own facts.

    The concept of the family has undergone significant development during recent years, both in the United Kingdom and overseas. Whether that is a matter for concern or congratulation is of no relevance to the present case, but it is properly part of the judicial function to endeavour to reflect an understanding of such changes in the reality of social life. Social groupings have come to take a number of different forms. The form of the single parent family has been long recognised. A more open acceptance of differences in sexuality allows a greater recognition of the possibility of domestic groupings of partners of the same sex. The formal bond of marriage is now far from being a significant criterion for the existence of a family unit. While it remains as a particular formalisation of the relationship between heterosexual couples, family units may now be recognised to exist both where the principal members are in a heterosexual relationship and where they are in a homosexual or lesbian relationship.

    In T, Petitioner, 1997 S.L.T. 724 an adoption order was made where the petitioner was proposing to bring up the child jointly with another person with whom he was cohabiting in a homosexual relationship. Such a group can readily be described as constituting a family. But just as in regard to heterosexual couples the existence of children was not a necessary factor for entitling the couple to qualify as a family, so also, as it seems to me, the couple should qualify by themselves, just as they would continue to do after the adopted child had grown up and started an independent life. In this connection it is interesting to note the use of the word "family" in the judgment of Singer J. in In re W. (A Minor) (Adoption: Homosexual Adopter) [1998] Fam. 58 where (at p. 59) he said in relation to the placement of the child whose adoption was in dispute, "The family in question comprises two women living together in lesbian relationship." He there recognises the couple as constituting a family. That language seems to me to reflect what is now an ordinary usage. In my view a homosexual couple can qualify as a family for the purposes of paragraph 3 of Schedule 1 to the Act of 1977 and if that is possible I have no doubt at all that in the circumstances of the present case the appellant does qualify as a member of the former tenant's family. On the facts before us such a conclusion is irresistible.

    The conclusion which I have reached seems to me to accord with the purpose of the legislation. The main objects of the Rent Acts are the giving to tenants of fair rents and a security of tenure (Megarry: Rent Acts 11th ed. (1988), Vol.1, p. 18). The purpose of the statutory provisions on succession, in their various formulations, may be taken to be to ensure that the security of tenure is not weakened by the inability of those closely bound to him to remain in residence by right after his death. The view which I have taken in the present case seems at least consistent with the evident purpose of the legislation.

    The view which I have taken finds some support in the decision of the Court of Appeals in New York in Braschi v. Stahl Associates Co. (1989) 544 N.Y.S. 2d 784. That case concerned landlord and tenant legislation forbidding the eviction of a "member of the deceased tenant's family who has been living with the tenant." The Court looked to the general social purpose of the statute, the protection of tenants, the prevention of dislocation and the preservation of family units. The Court stated, at p. 789:

     "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 characterised 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."

This approach is in conformity with that which commends itself to me, that the concept of "family" is now to be regarded as extending to a homosexual partnership.

    I should stress that the present case is to be distinguished from that of spouses or unmarried couples living in a relationship where marriage may be possible. I am not holding that a homosexual partnership is like or is akin to such a relationship. Indeed, as I have already held, I do not consider that paragraph 2(2), as presently worded, can be extended to cover such a case. So the cases to which we were referred where a matter of discrimination was raised between the position of heterosexual and homosexual couples is not in my view of direct assistance. Nor does not seem to me useful to employ such expressions as a relationship "akin to marriage." Indeed the appellant has in his written case expressly declared that the present case does not give rise to questions about any right on the part of persons of the same sex to marry or to acquire a particular legal status. It would be wrong to regard the present case as one about the rights of homosexuals. It is simply a matter of the application of ordinary language to this particular statutory provision in the light of current social conditions.

    Furthermore the present case is to be distinguished from cases concerned with the idea of family status, such as the Canadian case of Attorney-General of Canada v. Mossop (1993) 100 D.L.R. (4th) 658. In that case the Supreme Court held, on the narrow base on which the case was argued, that the expression "family status" did not include a homosexual relationship. But the definition of "family status" may be narrower than the word "family." In the Court of Appeal Marceau J.A. observed (quoted at p. 667 of the report):

     "Even if we were to accept that two homosexual lovers can constitute 'sociologically speaking' a sort of family, it is certainly not one which is now recognised by law as giving its members special rights and obligations."

Lamer C.J.C. observed of the Supreme Court's decision (p. 674) that it "should not be interpreted as meaning that homosexual couples cannot constitute a "family" for the purposes of legislation other than the C.H.R.A. In this regard, each statute must be interpreted in its own context."

    Nor does the decision which I have reached conflict with the jurisprudence of the European Court of Justice or the European Court of Human Rights. As was recognised by the European Court of Justice in Grant v. South West Trains Ltd. [1998] 3 B.H.R.C. 578 at 594 para. 35:

     "in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of the opposite sex."

Thus the European Court of Human Rights has in Rees v. U.K. (1987) 9 E.H.R.R. 56 and Cossey v. U.K. (1991) 13 E.H.R.R. 622 confined the application of Article 12 of the European Convention on Human Rights to the traditional marriage between persons of opposite biological sex. Article 12 refers to the right "to marry and to found a family" and in that context it is easy to understand that the word "family" may be restricted in its scope. Article 8 provides the right "to respect for his private and family life." In this context the Commission has held that a stable homosexual relationship between two men does not fall within the scope of the right to respect for family life, but that such a relationship may be a matter affecting private life (S. v. U.K. App.11716/85 47 D.R. 274). Some protection for such a relationship is thus recognised in the Human Rights jurisprudence. Moreover in the developing jurisprudence of the European Court of Human Rights it is recognised that family life is not confined to families based on marriage but may encompass other de facto relationships such as that in X, Y and Z v. U.K. (1997) 24 E.H.R.R. 143 where X had by gender reassignment surgery come to live as a man with Y, who was a woman, and her child, Z, who had been born through AID treatment. In Salgueiro da Silva Mouta v. Portugal (no. 33290/96 1.12.98) a homosexual claimed that an award of custody of his daughter to her mother was an unjustified interference with his right to respect for family life, and also with his right to respect for his private life since he was required in respect of his right of access to his daughter to conceal from her his homosexuality. His claim was held admissible. That the relationship in the present case may not as the law currently stands constitute "family life" for the purposes of Article 8 of the Convention, does not require a restrictive meaning to be given to the reference to a tenant's family in the legislation before us.

    It was suggested that if the present appeal was allowed there would be great uncertainty in the ascertainment of successors to statutory tenancies. I am not persuaded that such fears are justified. There may at present be need on occasion to explore the facts of particular cases to discover whether a person was living with the original tenant "as his or her wife or husband." In relation to the word "family", it is difficult to devise a construction which will obviate inquiry unless a very restrictive view of the scope of a family is taken. Once it is accepted, as it has been in the cases, that the application extends beyond the scope of strictly legal relationships, some inquiry may well be involved into the facts which are alleged to be sufficient to constitute the necessary nexus. It does not seem to me that the recognition that a person living together with another in a homosexual relationship may qualify as a member of the other's family is likely to lead to any significant uncertainties in the application of the statutory provision.