If the parties did not live together, the Applicant must prove that their relationship was ‘intimate’ and of a ‘significant duration’ – what does this mean?
A review of D v T [2023] EWFC 97.
When completing a Non-Molestation Order application, using the form FL401, Applicants must confirm the nature of their relationship with the Respondent. This is because, in order to apply for a Non-Molestation Order, the Applicant must establish that they and the Respondent are ‘associated persons’, pursuant of section 42(2) of the Family Law Act 1996.
When are parties associated persons?
The options of relationships found in the FL401 are intended to reflect the different categories of associated persons contained within section 62(3) of the 1996 Act:
(a) they are or have been married to each other;
(aa) they are or have been civil partners of each other;
(b) they are cohabitants or former cohabitants;
(c) 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;
(d) they are relatives;
(e) they have agreed to marry one another (whether or not that agreement has been terminated);
(eza) they have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether or not that agreement has been terminated);]
(ea) they have or have had an intimate personal relationship with each other which is or was of significant duration;
(f) in relation to any child, they are both persons falling within subsection (4); or
(g) they are parties to the same family proceedings (other than proceedings under this Part).
Whilst most of above categories of associated persons are easily recognisable and uncontentious, one category gives rise to a great amount of uncertainty; ‘they have or have had an intimate personal relationship with each other which is or was of significant duration’.
Intimate personal relationship of significant duration
Unfortunately, the 1996 Act does not define what would satisfy an ‘intimate relationship’, nor a ‘significant duration’. Moreover, the FL401 does not help to clear up the ambiguity but rather simply refers to ‘A [former] boyfriend, girlfriend or partner who did not live with me’ in an attempt to define what is meant by an intimate relationship.
However, within the recent judgement of D v T [2023] EWFC 97, HHJ Baker provided some helpful guidance.
D v T [2023] EWFC 97
The case of D v T concerns an application for a Non-Molestation order, made by a 14 year old girl against a 15 year old boy. Within her application, the Applicant sought to rely on the ground that she was in an intimate personal relationship with the Respondent of a significant duration, to establish that they were associated persons.
Intimacy
The question for the Court in the case of D v T was whether the parties must have been sexually intimate in order to prove that they were in an intimate personal relationship for the purposes of an application.
Within his judgment, HHJ Baker made reference to the case of G v F [2000] All ER (D) 927, in which Wall J stated that the 1996 Act should not be interpreted literally, but rather with insight into the purpose of the legislation.
HHJ Baker was therefore of the view that construing intimacy to mean sexual intimacy would provide a bar to Applicants seeking to make an application against a partner with whom they had not had sexual intercourse. Such a bar would be particularly concerning for minors wishing to make an application, given that sexual intercourse below the age of 16 is “illegal as a matter of fact” [22]. Should sexual intimacy being necessary for an Applicant to rely on section 62(3)(ea), minor Applicants who had not had sexual intercourse/activity with the intended Respondent could consequently be excluded from the protection afforded by the 1996 Act.
HHJ Baker therefore concluded that an application made relying on section 62(3)(ea) should be assessed by looking at the context, circumstances and characteristics of the relationship in question. This would involve exploring whether the parties viewed themselves as ‘boyfriend and/or girlfriend’, whether they said and sent messages of affection, and whether their behaviour together can subjectively and objectively render their relationship as one that is more than casual, in accordance with their age and stage of development.
Therefore, sexual intimacy does not need to be satisfied in order for an Applicant to rely on section 62(3)(ea) of the 1996 Act, namely that they have or have had an intimate personal relationship with each other which is or was of significant duration.
Significant Duration
The other question for the Court in the case of D v T was what could be deemed as a ‘significant duration’ when attempting to rely on section 62(3)(ea). In the case, the parties had been in a relationship for 4 months. Whilst deeming that the parties had been in a ‘significant relationship’, HHJ Baker noted that it is not appropriate to place a time limit on when a relationship can go from ‘insignificant’ to ‘significant’. HHJ Baker thus concluded that the circumstances of each relationship should be viewed subjectively in order to determine whether it was indeed of a ‘significant duration, rather than applying an arbitrary time limit which could provide a bar to potential Applicants.
Thoughts on the judgment
This case is quite fact specific in that it involved two children and it remains to be seen whether (for adult relationships), there is a need to be sexually intimate for it to be an intimate personal relationship. The length of the relationship would likely need to be longer for adults, but it depends on the facts of each case. But what is clear from the judgment, is that whether the test is met depends on the facts of each individual case and if protection is required, the Court will approach the test with an open-mind.
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