It is not an answer to the problem to assume (as I
accept may be correct) that if in 1920 people had been asked whether one
person was a member of another same-sex person's family the answer would have
been "no". That is not the right question. The first question is what were the
characteristics of a family in the Act of 1920
and the second whether two same-sex partners can satisfy those characteristics
so as today to fall within the word "family". An alternative question is
whether the word "family" in the Act of 1920
has to be updated so as to be capable of including persons who today would be
regarded as being of each other's family, whatever might have been said in
1920 (see Lord Steyn in Reg. v. Ireland [1998] AC 147
at p. 158; Bennion "Statutory Interpretation: a Code" 3rd ed.
1997 at p. 686 and Halsbury's Laws (4th ed. Re-issue) (1995) vol.
44(1), para. 1473. If "family" could only mean a legal
relationship (of blood or by legal ceremony of marriage or by legal adoption)
then the appellant must obviously fail. Over the years, however, the courts
have held that this is not so.
|
In the first place it has been said that the ordinary meaning of the word
is to be taken; "family" where it is used in the Rent Acts is not a term of
art (per Lord Diplock in Carrega Properties S.A. v. Sharratt
[1979] 1 W.L.R. 928, 931, though the meaning for Viscount Dilhorne (at p. 932)
is a question of law and "family" is not the same as "household".
In the second place it has been accepted that de facto relationships can be
recognised as constituting a family. Thus in Brock v. Wollams [1949] 2
K.B. 388, a child adopted in fact who lived with the tenant for many years,
but who was not adopted under the Adoption of Children Act 1926, was held to
be a member of his family living with him at his death within the meaning of
the Act of 1920. Bucknill L.J., at p. 393, cited with apparent approval the
judgment of Wright J. in Price v. Gould (1930) 46 T.L.R. 411 where he
said in relation to wills and settlements that the legislature had used the
word "family" "to introduce a flexible and wide term" so that brothers and
sisters of the tenant were family for the purposes of the Act. Bucknill L.J.
had no doubt that both de facto adopted and illegitimate children were
included as family. Denning, L.J. added, at p. 396:
"It seems to me that 'members of the tenant's family' within
section 12 sub-section 1(g) of the Act of 1920, include not only legitimate
children but also step-children, illegitimate children and adopted children,
whether adopted in due form of law or not."
In Ross v. Collins [1964] 1 W.L.R. 425 the defendant had acted as
the original tenant's housekeeper in return for which he remitted her rent.
They had never addressed each other by their Christian names and there was no
question of an intimate personal relationship. Russell L.J., with whose speech
Lord Diplock in Carrega [1979] 1 W.L.R. 928, 931 agreed said, 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."
In the application of this "ordinary meaning", "de
facto" approach there are not surprisingly decisions on both sides of the
line. In Helby v. Rafferty [1979] 1 W.L.R. 13, the court refused to
hold that a man who had lived with a woman tenant for five years before her
death were part of the same family because they had deliberately opted to
retain their formal independence and they had not been recognised as being
married. In Watson v. Lucas [1980] 1 W.L.R. 1493, on the other hand,
the Court of Appeal by a majority held that a woman who had lived with a man,
although he remained married to his wife, was a member of his family for the
purpose of Schedule 1 to the Act of 1977 because of the lasting relationship
between them. In Hawes v. Evenden [1953] 1 W.L.R. 1169, the claimant
was an unmarried woman who had lived with the deceased tenant for 12 years and
had had two children with him. The court held that there was evidence that the
claimant and the tenant and the children had lived together as a family and
she was therefore a member of his family for the purposes of the Act of 1920.
In Chios Property Investment Ltd. v. Lopez (1987) 20 H.L.R. 120 the
court stressed the importance of a "sufficient state of permanence and
stability" having been reached in the relationship so as to constitute family.
In Jones v. Whitehill [1950] 2 K.B. 204, a woman who out of love
and kindness went to live with her aunt and uncle, was held on the uncle's
death to be a member of his family.
The high water mark one way is Gammans v. Ekins
[1950] 2 K.B. 328. There the claimant had lived with a woman tenant and they
were regarded in the neighbourhood as man and wife. It was held that he could
not be a member of her family for the Act of 1920. Asquith L.J., at p. 331,
said that if their relationship was sexual "it seems to me anomalous that a
person can acquire a 'status of irremovability' by living or having lived in
sin, even if the liaison has not been a mere casual encounter but protracted
in time and conclusive in character." Lord Evershed M.R. saw considerable
force in the claimant's argument but finally agreed in the result. He added,
at p. 334:
"It may not be a bad thing that by this decision it is shown that,
in the Christian society in which we live, one, at any rate, of the
privileges which may be derived from marriage is not equally enjoyed by
those living together as man and wife but who are not married."
The high water mark the other way is Dyson Holdings
Ltd. v. Fox [1976] QB 503. This decision has however been confined to
its own facts or doubted by Roskill L.J. in Helby v. Rafferty [1979] 1
W.L.R. 13, 23-24 and by Oliver L.J. in Watson v. Lucas [1980] 1 W.L.R.
1493, 1503-1504. In Dyson the defendant had lived with the tenant for
21 years until his death. They were unmarried and had no children. Reversing
the County Court judge, the Court of Appeal ruled that she was a member of his
family. Lord Denning M.R. [1976] QB 503, 509 held that Gammans
(supra) was wrongly decided and that it was absurd to distinguish between
two couples on the basis that one had children and the other did not. James
L.J. said, at p. 511:
"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. This is not to say that every mistress should
be so regarded. Relationships of a casual or intermittent character and
those bearing indications of impermanence would not come within the popular
concept of a family unit."
He accepted that Gammans was authority for the meaning of "family"
in 1949 but not in 1975. Bridge L.J. said, at pp. 512-513:
"Now, it is, I think, not putting it too high to say that between
1950 and 1975 there has been a complete revolution in society's attitude to
unmarried partnerships of the kind under consideration. Such unions are far
commoner than they used to be. The social stigma that once attached to them
has almost, if not entirely, disappeared. The inaccurate but expressive
phrases "common law wife" and "common law husband" have come into general
use to describe them. The ordinary man in 1975 would, in my opinion,
certainly say that the parties to such a union, provided it had the
appropriate degree of apparent permanence and stability, were members of a
single family whether they had children or not."
The facts of Gammans would now be covered by the 1988 amendment
"living as his or her husband or wife", but in any event it seems to me that
the claimant there was a member of the tenant's family both in 1949 and in
1975.
The question has been raised as to whether your
Lordships are bound by the decision of the House in Carrega Properties
(supra) to reach the conclusion that this applicant must fail. In my view
your Lordships are not so bound. In that case it was held that two people, one
75 and one 24, could not establish a familial relationship by acting together
as aunt and nephew. It was a decision on the facts. Lord Diplock stressed at
the beginning of his speech, at p. 930:
"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] QB 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."
The issue is in my view open for your Lordships to
decide.
Given, on the basis of these earlier decisions that
the word is to be applied flexibly, and does not cover only legally binding
relationships, it is necessary to ask what are its characteristics in this
legislation and to answer that question to ask further what was Parliament's
purpose. It seems to me that the intention in 1920 was that not just the legal
wife but also the other members of the family unit occupying the property on
the death of the tenant with him should qualify for the succession. The former
did not need to prove a qualifying period; as a member of the tenant's family
a two-year residence had to be shown. If more than one person qualified then
if no agreement could be reached between them the court decided who should
succeed.
The hall marks of the relationship were essentially
that there should be a degree of mutual inter-dependence, of the sharing of
lives, of caring and love, of commitment and support. In respect of legal
relationships these are presumed, though evidently are not always present as
the family law and criminal courts know only too well. In de facto
relationships these are capable, if proved, of creating membership of the
tenant's family. If, as I consider, this was the purpose of the legislation,
the question is then who in 1994 or today (I draw no distinction between them)
are capable in law of being members of the tenant's family. It is not who
would have been so considered in 1920. In considering this question it is
necessary to have regard to changes in attitude. The point cannot have been
better put than it was by Sir Thomas Bingham M.R. in Reg. v. Ministry of
Defence, Ex parte Smith [1996] QB 517 at pp. 552-554 when, although
dealing with the validity of an administrative decision rather than the
meaning of a few words in a statute, said, after referring to changes of
attitude in society towards same-sex relationships:
"I regard the progressive development and refinement of
public and professional opinion at home and abroad, here very briefly
described, as an important feature of this case. A belief which represented
unquestioned orthodoxy in year X may have become questionable by year Y and
unsustainable by year Z. Public and professional opinion are a continuum."
If "meaning" is substituted for "opinion" the words are no less
appropriate. In Barclays Bank Plc. v. O'Brien [1994] 1 AC 180, 198
Lord Browne-Wilkinson (with whom other members of the House agreed) said that
in relation to the equity arising from undue influence in a loan transaction,
"But in my judgment the same principles are applicable to all
other cases where there is an emotional relationship between cohabitees. The
'tenderness' shown by the law to married women is not based on the marriage
ceremony but reflects the underlying risk of one cohabitee exploiting the
emotional involvement and trust of the other. Now that unmarried
cohabitation, whether heterosexual or homosexual, is widespread in our
society, the law should recognise this."
In particular if the 1988 amendment had not been made
("as his or her wife or husband") I would have no hesitation in holding today
when, it appears, one-third of younger people live together unmarried, that
where there is a stable, loving and caring relationship which is not intended
to be merely temporary and where the couple live together broadly as they
would if they were married, that each can be a member of the other's family
for the purpose of the Act of 1977.
If, as I think, in the light of all the authorities
this is the proper interpretation of the Act of 1920 I hold that as a matter
of law a same-sex partner of a deceased tenant can establish the necessary
familial link. They are capable of being in Russell L.J.'s words in Ross v.
Collins [1964] 1 W.L.R. 425, 432: "A broadly recognisable de facto
familial nexus." It is then a question of fact as to whether he or she does
establish the necessary link.
It is accordingly not necessary to consider the
alternative question as to whether by 1999 the meaning of the word in the Act
of 1920 needs to be updated. I prefer to say that it is not the meaning which
has changed but that those who are capable of falling within the words have
changed.
We have been referred to a number of authorities in
other jurisdictions. I wish to mention only two. Your Lordships' attention has
been drawn to Braschi v. Stahl Associates Co. (1989) 544 N.Y.S. 2d 784.
There the issue was as to the meaning of the New York City Rent and Eviction
Regulations which provided that a landlord might not dispossess "either the
surviving spouse of the deceased tenant or some other member of the deceased's
tenant's family who has been living with the tenant." The majority of the New
York Court of Appeals held, at pp. 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 characterised by
an emotional and financial commitment and interdependence."
In law therefore a same-sex partner of the deceased tenant was, it was
held, able to qualify if he could produce the necessary evidence.
The second case to which I refer is El-Al Israeli
Airlines Ltd. v. Danilowitz National Journal of Sexual Orientation Law
vol. 1, p. 304. That was a case involving the provision of airline tickets for
a married spouse and an unmarried cohabitant of a different sex. It was not
provided to same-sex partners. Vice-Chief Justice Barak said:
"The benefit is thus provided to a lasting living-together
partnership which displays a strongly tied up social relationship. It is
therefore obvious, in my view, that to take this benefit away from
homosexual spouses constitutes a discriminatory violation of the equality
principle. The differentiating reason standing behind this decision has to
do with sexual orientation. But this latter fact was both immaterial and
unfair . . . Does a homosexual cohabitation differ from a heterosexual one,
as far as partnership, unity and a social-cell relationship are concerned?"
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I refer to these judgments in order to show the
attitudes being adopted in other jurisdictions and there are other examples.
On the other hand, the European Convention of Human Rights refers to family
and family life in Articles 8 and 12 and the Court of Human Rights has not so
far accepted claims by same-sex partners to family rights. Leaving aside the
fact that these cases are still in an early stage of development of the law
and that attitudes may change as to what is acceptable throughout Europe, I do
not consider that these decisions impinge on the decision which your Lordships
have to take on a specific statutory provision.
In this regard I refer to Attorney General of
Canada v. Mossop 100 D.L.R. 4th 658 where the High Court of Canada held by
a majority of four to three that the term "family status" in the Canadian Human Rights Act
does not include a homosexual relationship between two individuals. Lamer,
C.J. (of the majority), however, concluded at p. 674:
"Nor should this decision 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".
Sopinka, J. and Jacobucci, J. agreed with Lamer, C.J.
It seems to be suggested that the result which I have
so far indicated would be cataclysmic. In relation to this Act it is
plainly not so. The onus on one person claiming that he or she was a member of
the same-sex original tenant's family will involve that person establishing
rather than merely asserting the necessary indicia of the relationship. A
transient superficial relationship will not do even if it is intimate. Mere
cohabitation by friends as a matter of convenience will not do. There is, in
any event, a minimum residence qualification; the succession is limited to
that of the original tenant. Far from being cataclysmic it is, as both the
County Court judge and the Court of Appeal appear to recognise, and as I
consider, in accordance with contemporary notions of social justice. In other
statutes, in other contexts, the same meaning may or not be the right one. If
a narrower meaning is required, so be it. It seems also to be suggested that
such a result in this statute undermines the traditional (whether religious or
social) concept of marriage and the family. It does nothing of the sort. It
merely recognises that, for the purposes of this Act, two
people of the same sex can be regarded as having established membership of a
family, one of the most significant of human relationships which both gives
benefits and imposes obligations.
It is plain on the findings of the County Court judge
that in this case, on the view of the law which I have accepted, on the facts
the appellant succeeds as a member of Mr. Thompson's family living with him at
his death.
On that ground I would allow the appeal.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
This appeal raises an important point on the
interpretation of a provision in the Rent Acts. For many years certain
residential tenants have enjoyed the benefits of fair rentals and protection
from eviction conferred by successive Rent Acts. Ever since the earliest days
of this legislation in 1920, these benefits have not been confined to the
original tenant. Under the Increase of Rent and Mortgage Interest
(Restrictions) Act 1920, section 12(1)(g), 'tenant' included the widow of a
tenant in certain circumstances and, in other cases, such 'member of the
tenant's family' residing with him when he died as might be agreed or decided
by the court. In addition to protecting the tenant personally, Parliament has
always been concerned to protect the family unit of which the deceased tenant
was part.
The language chosen for this purpose was the undefined
expression 'family'. This expression is not a term of art; that is, it is not
a technical term with a specific meaning. It is a word in ordinary usage, with
a flexible meaning. The statutory succession provisions have been amended
several times, but to this day family has remained unamended, undefined and
unparticularised. Parliament has left it to the courts to determine, in any
given case, whether a particular individual falls within the description. The
current legislative provisions are to be found in Schedule 1 of the Rent Act
1977, as amended by the Housing Act 1988.
The relevant phrase in paragraph 3 is 'a person who was a member of the
original tenant's family . . . residing with him in the dwelling-house at the
time of and for the period of 2 years immediately before his death'. There are
differences between the extent of the protection enjoyed by a surviving spouse
as a statutory tenant under paragraph 2 and the more limited protection now
accorded to a member of the original tenant's family as the holder of an
assured tenancy under paragraph 3. Nothing turns on this distinction for
present purposes.
Family is a word with several different meanings. In
some contexts family means children ('when shall we start a family?'). In
other contexts it means parents and children ('accommodation suitable for
families'). It may mean all persons connected, however remotely, by birth,
marriage or adoption ('family tree'). The present context is statutory
protection of the occupancy of a dwelling house that is a family home. On the
death of the tenant his family cannot be evicted without further ado.
Herein lies the key to the meaning of family in this
context. The key is the statutory juxtaposition of membership of the tenant's
family and residence with the tenant. The legislation seeks to provide a
measure of protection for members of a family who are sharing their lives
together as a single family in one home. In this context children will readily
qualify. More remote blood relations of the tenant may also qualify if they
satisfy this 'sharing' criterion. For instance, a nephew or niece, the child
of a deceased brother or sister, might have come into the tenant's home at an
early age and become part of his family. Or a widowed or unmarried man might
live with his married brother and the brother's wife and children. Or an
unmarried brother and sister might have lived together throughout their lives.
Thus, in the early decision of Price v. Gould (1930) 143 L.T. 333
Wright J. decided that sisters and brothers living together qualified for
protection.
This, then, is the first point to note. Although there
are hints of a different view in some of the cases, in the context of the
purpose of this legislation blood relations are not divided into fixed
categories, with near relations ranking as family and more distant relations
not. The closer the blood relationship, the easier it may be for the court to
identify the existence of the necessary family relationship or familial nexus,
as it is sometimes described. More remote kin are not excluded, although in
practice the more remote the kinship the less frequently will they be found
sharing their lives together as a family in one home. Langdon v. Horton
[1951] 1 K.B. 666 is an instance of this. First cousins, sharing a residence
for purposes of convenience, were held not to qualify.
The second point to note is that membership of a
family for this purpose is not confined to blood relations. The relationship
may be one of marriage. Indeed, the paradigm family unit was, and still is, a
husband and wife and their children. The wife, as well as the children, is a
member of the husband's family. Conversely, the husband and the children are
members of the wife's family. But children are not essential for the existence
of a family for the present purpose. The purpose of the legislation requires
that, even in the absence of children, a spouse may qualify. This accords with
one of the earliest decisions on these provisions. In 1925, before a widower
of the tenant was expressly mentioned in the legislation, Salter J. held that
the tenant's husband came within the statute: see Salter v. Lask [1925]
1 K.B. 584. This also accords with the provisions applicable when a lessor
seeks a possession order on the ground that alternative accommodation is
available for the tenant. Alternative accommodation must be reasonably
suitable for the needs of the tenant and his 'family': see the Rent Act 1977,
section 98(1)(a) and part IV of Schedule 15. It would be absurd if the
tenant's wife did not count as family for this purpose.
The next point to note is that family is not limited
to blood relations and the tenant's spouse. 'In-law' relationships may
qualify. 'Welcome to the family' is a customary greeting to the bride or groom
on the wedding of a son or daughter. A daughter-in-law, living with the
tenant, must be able to qualify as much as the son of the tenant to whom she
is married. A son-in-law may likewise qualify. In Jones v. Whitehill
[1950] 2 K.B. 204 a niece-in-law was held entitled to succeed. The Court of
Appeal expressly rejected the argument that family was confined to blood
relations. 'Step' relationships such as step-children may also qualify, as may
children who have been formally adopted. Parliament cannot intend that the
tenant's own child may qualify but a duly adopted child or a step-child may
not.
Having regard to the purpose of the legislation, the
width of the meaning borne by the expression family does not stop here. As one
might expect, the authorities have not drawn a rigid line at this point. A
child who is adopted in fact, although not in law, may be as much a member of
the tenant's family as a duly adopted child. The Court of Appeal so decided in
1949 in Brock v. Wollams [1949] 2 K.B. 388. More pertinent for present
purposes, a man and woman, unmarried but living together as husband and wife,
are capable of constituting family. In Hawes v. Evenden [1953] 1 W.L.R.
1169 the Court of Appeal upheld a decision of a county court judge that the
mistress of a man by whom she had had two children was a member of his family
for this purpose. The court held there was evidence justifying the judge's
finding that they had all lived together as a family. Somervell L.J., at page
1171, identified this as the key factor. Given that factual finding, the
court's conclusion must surely be right. A man and woman living together with
their children constitute a family for this purpose even though they are
unmarried.
Three years earlier, in Gammans v. Ekins [1950]
2 K.B. 328, the Court of Appeal reached the contrary conclusion regarding a
childless couple. A quarter of a century later, in 1975, the Court of Appeal
had to consider again the position of an unmarried childless couple. In
Dyson Holdings Ltd. v. Fox [1976] QB 503 a man and woman had lived
together as husband and wife for nearly 20 years. The court preferred the
approach adopted in Hawes v. Evenden. Expressing himself with his
customary simplicity and cogency, Lord Denning M.R. trenchantly criticised a
distinction based on the mere absence of children. He said, at page 509:
'That means this: if the couple had a baby 19 years ago which died
when a few days old, or as a young child, the woman would be a "member of
the tenant's family"; but if the baby had been still-born, or if the woman
had a miscarriage 19 years ago, she would not be a member of his family. Yet
for the last 19 years they had lived together as man and wife. That seems to
me a ridiculous distinction. So ridiculous, indeed, that it should be
rejected by this court: and that we should hold that a couple who live
together as man and wife for 20 years are members of the same family,
whether they have children or not.'
In my view the approach adopted in the Dyson
case, as set out above, is unanswerably correct. The legislative purpose, of
protecting members of a family unit in their occupation of a house, requires
that a couple living together but without children should be as capable of
qualifying for protection as a couple living together with a child. The
Dyson approach has been followed in several reported cases and, no
doubt, numerous unreported decisions. All the reported cases rightly stress
the need for a permanent and stable relationship: see, for instance, Helby
v. Rafferty [1979] 1 W.L.R. 13, Watson v. Lucas [1980] 1 W.L.R.
1493 and Chios Property Investment Co. Ltd. v. Lopez (1987) 20 H.L.R.
120. Since then Parliament has made express provision, by the Housing Act 1988,
for this type of case. The surviving spouse of the original tenant, if living
in the house at the tenant's death, becomes the statutory tenant. For this
purpose 'a person who was living with the original tenant as his or her wife
or husband shall be treated as the spouse of the original tenant': see
paragraph 2(2) of Schedule 1 to the Rent Act 1977, as inserted by the Housing Act 1988,
section
39(2) and paragraph 2 of Part 1 of Schedule 4.
I interpose that, in agreement with all your
Lordships, I do not accept that the appellant falls within the extended
meaning given to spouse by paragraph 2(2). The surviving spouse of the
original tenant was the person to whom the original tenant was married when he
or she died. Paragraph 2(2) extends this to include persons who conducted
themselves as husband and wife although they were not married. Marriage,
spouse, husband and wife are all terms connoting a relationship between a man
and a woman, that is, between two persons of opposite sex. A husband is a man
and a wife is a woman. These are, in this context, gender-specific words. This
approach accords with the view of the Court of Appeal in Harrogate Borough
Council v. Simpson (1984) 17 H.L.R. 205. The court was considering a
phrase in section 30 of the Housing Act 1980 that is different in detail but
substantially to the same effect ('. . . if they live together as husband and
wife').
This is the background against which a decision has to
be made in the present case. The above discussion shows that the courts have
given a wide and elastic meaning to family in the present context. Rightly so,
because the legislation would fail to cover the whole of the target intended
to be protected if family were given a narrow or rigid meaning. Such a meaning
would fail to reflect the diverse ways people, in a multi-cultural society,
now live together in family units.
The question calling for decision in the present case
is a question of statutory interpretation. It is whether a same sex partner is
capable of being a member of the other partner's family for the purposes of
the Rent Act legislation. I am in no doubt that this question should be
answered affirmatively. A man and woman living together in a stable and
permanent sexual relationship are capable of being members of a family for
this purpose. Once this is accepted, there can be no rational or other basis
on which the like conclusion can be withheld from a similarly stable and
permanent sexual relationship between two men or between two women. Where a
relationship of this character exists, it cannot make sense to say that,
although a heterosexual partnership can give rise to membership of a family
for Rent Act purposes, a homosexual partnership cannot. Where sexual partners
are involved, whether heterosexual or homosexual, there is scope for the
intimate mutual love and affection and long-term commitment that typically
characterise the relationship of husband and wife. This love and affection and
commitment can exist in same sex relationships as in heterosexual
relationships. In sexual terms a homosexual relationship is different from a
heterosexual relationship, but I am unable to see that the difference is
material for present purposes. As already emphasised, the concept underlying
membership of a family for present purposes is the sharing of lives together
in a single family unit living in one house.
A similar conclusion was reached in 1989 by the New
York Court of Appeals in its majority decision in Braschi v. Stahl
Associates Co. 544 N.Y.S. 2d 784 (Ct. App. 1989). The New York
non-eviction legislation was expressed in terms substantially the same as the
Rent Act legislation of this country. |
|
I must refer to one further authority: the decision of
this House in Carega Properties S.A. v. Sharratt [1979] 1 W.L.R. 928.
This was the only occasion on which your Lordships have previously considered
the meaning of family in the Rent Act legislation. A widow aged 75 developed a
platonic relationship with a young man aged 24. He lived in her flat for
nearly 20 years until she died. They treated themselves as aunt and nephew.
The trial judge held that through their relationship this elderly lady and
young man achieved a familial nexus, meaning thereby a nexus such as one would
only find within a family. The Court of Appeal reversed the judge's decision,
and held that on the facts the relationship was not within the permissible
limits of the meaning of the phrase 'a member of the . . . tenant's family'.
This House upheld the decision of the Court of Appeal. Lord Diplock delivered
the leading speech. He agreed with observations of Russell L.J., in Ross v.
Collins [1964] 1 W.L.R. 425, 432, to the effect that an adult man and
woman who establish a platonic relationship cannot establish a family nexus by
acting as a devoted brother and sister or father and daughter would act. This
is so, 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.
On this appeal your Lordships have not been invited to
depart from your Lordships' decision in the Carega case. This does not
preclude your Lordships from deciding this appeal to the effect I have already
indicated. Had it done so, I would have wished to consider afresh the decision
in that case. The reason why the decision in Carega is not an
impediment is this. In Carega Lord Diplock, at page 930, stated that
the facts of the case did not provide a suitable occasion for the House to
undertake a general consideration of what persons may be included in the
expression 'a member of the . . . tenant's family'. Further, he disavowed any
intention to review the decision in the Dyson case, stating that this
was best left for consideration in the light of the actual facts of a case in
which it arises. The present case, like Dyson, but unlike
Carega, is a sexual partnership case. I do not understand the House in
Carega to have been expressing any views regarding this type of case.
I must also mention the 'ordinary person' test
enunciated by Cohen L.J. in Brock v. Wollams [1942] 2 K.B. 388, 395. He
suggested that the trial judge should ask himself this question: would an
ordinary person, addressing his mind to the question whether the defendant was
a member of the family, have answered 'yes' or 'no'? This oft-quoted test has
tended to bedevil this area of the law. It may be useful as a reminder that
family is not a term of art. But the test gives uncertain guidance when, as
here, the members of the Court of Appeal and also your Lordships are divided
on how the question should be answered. Contrary to what seems implicit in
this form of question, the expression family does not have a single, readily
recognisable meaning. As I have emphasised, the meaning of family depends upon
the context in which it is being used. The suggested question does not assist
in identifying the essential ingredients of the concept of family in the
present context.
In the course of a well-reasoned and attractively
presented argument, Mr. Chapman submitted that homosexual relationships have
always existed and that at the inception of the Rent Act regime in the 1920s a
homosexual partner would not have been regarded as a member of the tenant's
family. In those days homosexual acts between men constituted a criminal
offence. This remained so until they were de-criminalised by the Sexual
Offences Act 1967.
This submission raises the question whether the word
family as used in the Rent Acts may change its meaning as ways of life and
social attitudes change. Can the expression family legitimately be interpreted
in 1999 as having a different and wider meaning than when it was first enacted
in 1920? The principles applicable were stated cogently by Lord Wilberforce in
Royal College of Nursing of the United Kingdom v. Department of Health and
Social Security [1981] AC 800, 822. A statute must necessarily be
interpreted having regard to the state of affairs existing when it was
enacted. It is a fair presumption that Parliament's intention was directed at
that state of affairs. When circumstances change, a court has to consider
whether they fall within the parliamentary intention. They may do so if there
can be detected a clear purpose in the legislation which can only be fulfilled
if an 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 was expressed.
In the present case Parliament used an ordinary word
of flexible meaning and left it undefined. The underlying legislative purpose
was to provide a secure home for those who share their lives together with the
original tenant in the manner which characterises a family unit. This purpose
would be at risk of being stultified if the courts could not have regard to
changes in the way people live together and changes in the perception of
relationships. This approach is supported by the fact that successive Rent
Acts have used the same undefined expression despite the far-reaching changes
in ways of life and social attitudes meanwhile. It would be unattractive, to
the extent of being unacceptable, to interpret the word family in the Rent Act
1977 without regard to these changes.
The change in attitudes towards unmarried couples
cohabiting as husband and wife exemplifies this point. In Gammans v.
Ekins [1950] 2 K.B. 328 the court's decision was affected by its
perception of the immorality of such a relationship. An immoral relationship
did not come within the ambit of family in the Rent Acts. Asquith L.J., at
page 331, said it would be anomalous that a person could acquire protection by
living in sin even if the liaison was protracted in time and conclusive in
character. Jenkins L.J., at page 332, described the relationship as no more
than a liaison between two elderly people who chose to pose as husband and
wife when they in fact were not. Evershed M.R., at page 334, was more
hesitant, but his conclusion was that it might be no bad thing to show that
one of the privileges derivable from marriage was not equally enjoyed by those
living together as man and wife but in fact unmarried.
In one respect of crucial importance there has been a
change in social attitudes over the last half-century. I am not referring to
the change in attitude toward sexual relationships between a man and woman
outside marriage or toward homosexual relationships. There has been a
widespread change in attitude toward such relationships, although differing
and deeply felt views are held on these matters. These differing views are to
be recognised and respected. The crucial change to which I am referring is
related but different. It is that the morality of a lawful relationship is not
now regarded as relevant when the court is deciding whether an individual
qualifies for protection under the Rent Acts. Parliament itself made this
clear in 1988, when amending the Rent Acts in the Housing Act 1988.
Paragraph 2(3) of Schedule 1 envisages that more than one person may be living
with the tenant as a surviving spouse under the extended definition. In so
enacting the law Parliament was not expressing a view, either way, on the
morality of such relationships. But by this provision Parliament made plain
that, for purposes of Rent Act protection, what matters is the factual
position. The same must be true of homosexual relationships.
It is for this reason that I do not accept the
argument that the inclusion of a tenant's homosexual partner within the ranks
of persons eligible to qualify as members of his family is a step which should
be left to Parliament. It really goes without saying that in cases such as
this the courts must always proceed with particular caution and sensitivity.
That is not to say the courts can never proceed at all. That is not what the
Court of Appeal did in 1975 when deciding the Dyson case. Nor should
this course commend itself to your Lordships in the present case.
In this regard, at the risk of repetition, it is
necessary to stress the limited nature of the decision in this case. The
courts have already decided that the undefined expression 'family' is to be
given a wide meaning in the context of the Rent Acts. The courts have already
decided that family includes relationships other than those based on
consanguinity or affinity. To include same sex partners is to do no more than
apply to them the same rationale as that underlying the inclusion of different
sex partners. The decision goes no further than this. The decision leaves
untouched questions such as whether persons of the same sex should be able to
marry, and whether a stable homosexual relationship is within the scope of the
right to respect for family life in article 8 of the European Convention on
Human Rights.
I would allow this appeal. It is not disputed that if
a same sex partner can qualify as a member of the tenant's family, the
appellant does in fact qualify. He and the original tenant, until the latter's
death, lived together for many years in a stable homosexual relationship. The
judge found they enjoyed a very close, loving and monogamous homosexual
relationship. In my view the appellant falls within paragraph 3.
LORD CLYDE
My Lords,
The late John Thomson was the statutory or protected
tenant of a flat owned by the respondents from 1972 until his death in 1994.
Since 1976 the appellant had lived in the flat with him in what is described
in the agreed facts as a long-standing, close, loving and faithful monogamous
homosexual relationship. The appellant claims to be entitled to succeed to the
tenancy on the death of his partner as a statutory tenant by succession under
the Rent Act 1977. For this purpose he has to bring himself within the
provisions of Part 1 of Schedule 1 to that Act which sets out the provisions
for determining who is the statutory tenant by succession after the death of a
protected or statutory tenant. The appellant founds on two particular
provisions.
The first of these is contained in paragraph 2(2) of
the Schedule which was added by section 39 and Schedule 4 of the Housing Act 1988.
Prior to that addition the paragraph referred only to a spouse of the original
tenant. It has not been suggested that the appellant could qualify as a
spouse. Sub-paragraph (2) extended the scope of the paragraph by stating:
"(2) For the purposes of this paragraph, a person who was living
with the original tenant as his or her wife or husband shall be treated as
the spouse of the original tenant."
It is on this extension of the scope of the provision relating to spouses
that the appellant bases the first branch of his argument.
I am not persuaded that the appellant qualifies under
this provision. The language here plainly indicates a biological distinction
between the sex of the original tenant and that of the successor. The careful
use of the words "his" and "her" and the phrase "wife or husband" point to a
heterosexual relationship. I see no difference between the language used and
the phrase "his wife or her husband" and I cannot read the language as if it
had said "his or her partner." Taking the words in their ordinary sense, the
sub-paragraph does not in my view include a homosexual relationship. That was
the view taken by the Court of Appeal in Harrogate Borough Council v.
Simpson (1984) 17 H.L.R. 205 and I consider that that decision was
correct.
The alternative view which was adopted by Ward L.J. in
the present case involves a construction of the word "as" which fastens too
narrowly on a consideration of the manner of the cohabitation and ignores
considerations of form, appearance and capacity. Even if the word "as" does
not require a complete equation, nevertheless the approximation must be a
closer one than can exist in the case of a homosexual couple. The essential
characteristic of the relationship of husband and wife is the bond of
marriage. The paragraph in my view is simply seeking to cover situations where
the couple are husband and wife in every respect except that they are not
married. Thus merely living in the same household will not be sufficient; the
manner of their living together and the reason for their so doing may also
have to be explored (Crake v. Supplementary Benefits Commission [1982]
1 All E.R. 498). I would only add that the view which I take of this head of
the argument appears to accord with El-Al Israeli Airlines Ltd. v.
Danilowitz [1994] Case 712/94, where the respondent before the Supreme
Court of Israel did not attempt to challenge the view taken by the State
Tribunal that a homosexual partner did not qualify as a "spouse (husband or
wife)" nor as "a cohabitant publicly known as his/her wife/husband." That
case, like that of Egan v. Canada (1995) 124 D.L.R. (4th) 609, where
the relevant statute defined "spouse" as including a person of the opposite
sex, was concerned primarily with a question of discrimination; but that
question is not directly raised in the present appeal.
The appellant then turns to paragraph 3 of the
Schedule. The relevant part of that paragraph in its amended version reads:
"(3) Where paragraph 2 above does not apply, but a person who was
a member of the original tenant's family was residing with him in the
dwelling-house at the time of and for a period of two years immediately
before his death then, after his death, that person . . . shall be entitled
to an assured tenancy of the dwelling-house by succession."
The appellant meets the requirement of residence at the time of the death
and for the two years immediately prior thereto. So the question comes to be,
was the appellant a "member of the original tenant's family?"
The word "family" connotes essentially some grouping,
usually of persons, who are connected with each other by some particular kind
of bond. But the precise content of the group depends upon the context in
which the term is used. In some contexts it may require to be restricted to
members who are linked by ties of consanguinity or affinity or both
consanguinity and affinity. A family so linked may be said to exist even
although they do not live together or even meet each other. On a narrower view
the context may in some cases even require the group to consist only of
children. On the other hand the tie may in particular circumstances consist of
a close and intimate degree of companionship between people who are living
together in one dwelling even if no relationship of blood or marriage exists
between them.
The word "family" in the context of the rent
legislation can be traced to section 12(1)(g) of the Increase of Rent
and Mortgage Interest (Restrictions) Act 1920. The meaning of the word
"family" in the context of the Rent Acts was explored long ago by Wright J. in
Price v. Gould (1930) 46 T.L.R. 411 where it was recognised that the
word was a "popular, loose and flexible expression, and not a technical term."
In Stewart v. Mackay, 1947 S.C. 287 in relation to the phrase
"the needs of the tenant and his family" it was considered that domestic
servants and even lodgers might fall within the description if they had a
sufficient degree of permanence and the general relationship. In Brock v.
Wollams [1949] 2 K.B. 388 the narrow meaning of relations by blood or
marriage was rejected, so also was the idea that "family" could be equated
with "household." A bond which goes no further than the fact that the group
are living under the same roof is not enough. The preferred meaning was that
formulated by the "Cohen question" which was repeated by its author as a fair
test in Standingford v. Probert [1950] 1 K.B. 377, 383. The test
involves the artificiality of an imaginary recourse to a hypothetical
representative of the general public; in substance it requires the application
of the ordinary popular sense of the word. Once the test is established, the
problem seems to me to be one of the application of the word rather than its
construction. But, as was pointed out in Sefton Holdings Ltd. v. Cairns
(1987) 20 H.L.R. 124, the question is whether the person was a member of the
family, not whether he was living as a member of the family.
Some of the most close family relationships may be
created by choice, between persons who may otherwise have been strangers to
each other. Marriage is the obvious example. Adoption of children is another.
The element of a free mutual choice of a close intimate relationship and the
voluntary determination to spend one's life with another is one form of a
family bond. The kind of relationship with which the present case is concerned
is one where the parties of their own choice live together in a situation of
actual or potential sexual intimacy. Beyond that kind of case and the case of
a relationship akin to that of parent and child the element of choice does not
seem to operate to achieve a family bond. One cannot choose to become a
brother or a sister, an aunt or an uncle. Some may choose to be a family
member. Others have it thrust upon them. |
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] QB 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] AC 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 EHRR 56 and Cossey v. U.K. (1991) 13 EHRR 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 EHRR 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. |
|
Ward L.J. expressed an anxiety that he might be
exceeding the limits of the judicial function in reaching his decision.
Judicial activism certainly has to be tempered by due restraint, and the
drawing of the boundary of the judicial task is often delicate and sometimes
controversial. I do not consider that the boundary is being passed in the
present case. What we are concerned with is the application of a word
recognised as being loose and flexible. Parliament has in other contexts
provided definitions of the kind of relationships which it intends should be
affected by particular provisions. For example under section 113 of the
Housing Act 1985 a person was a "member of another's family" if he was the
spouse of that person, or if he and that person lived together as husband and
wife, or if he was that person's parent, grandparent, child, grandchild,
brother, sister, uncle, aunt, nephew or niece. In marked distinction to that
kind of approach Parliament has in relation to protected tenancies under the
Rent Act 1977 left the word "family" to be applied by the Courts without the
guidance of statutory definition. The court in Dyson accordingly
applied the word as was appropriate to the social circumstances prevailing at
that period, innovating on its earlier application. If, as I believe, the word
is now appropriate to cover a homosexual partnership of the kind which existed
in the present case, it seems to me consistent with the intention of
Parliament that it should be so applied.
I would allow the appeal.
LORD HUTTON
My Lords,
The appellant, Mr. Martin Fitzpatrick, was the
homosexual partner of the late Mr. John Thompson and lived with him in his
flat, of which he was the statutory or protected tenant under the Rent Acts,
from 1976 until the latter's death in 1994. The relationship between Mr.
Fitzpatrick and his partner was close, loving and faithful and after Mr.
Thompson suffered a stroke in 1986 Mr. Fitzpatrick nursed him with devotion
and constant care until he died.
The landlord of the flat was the respondent, the
Sterling Housing Association Limited, which is a charity providing
accommodation for families and individuals at affordable rents. After Mr.
Thompson's death Mr. Fitzpatrick applied to become the tenant of the flat
(which comprised four rooms, together with a kitchen and a bathroom) but the
respondent, although willing to rehouse him in smaller accommodation in
another of its properties, was not prepared to agree to him taking over the
tenancy.
Mr. Fitzpatrick applied to the West London County
Court for a determination that he was entitled to succeed to the tenancy of
the flat, but his application was dismissed in a careful judgment by Judge
Colin Smith Q.C. and his decision was upheld by a majority of the Court of
Appeal [1998] Ch. 305 (Waite L.J. and Roch L.J. with Ward L.J. dissenting).
After a number of amendments Schedule 1 to the Rent
Act 1977 now reads so far as relevant:
"1. Paragraph 2 . . . below shall have effect, subject to section
2(3) of this Act, for the purpose of determining who is the statutory tenant
of a dwelling-house by succession after the death of the person (in this
Part of this Schedule referred to as 'the original tenant') who, immediately
before his death, was a protected tenant of the dwelling-house or the
statutory tenant of it by virtue of his previous protected tenancy.
2(1) The surviving spouse (if any) of the original tenant, if
residing in the dwelling-house immediately before the death of the original
tenant, shall after the death be the statutory tenant if and so long as he
or she occupies the dwelling-house as his or her residence. (2) For the
purposes of this paragraph, a person who was living with the original tenant
as his or her wife or husband shall be treated as the spouse of the original
tenant. (3) If, immediately after the death of the original tenant, there
is, by virtue of sub-paragraph (2) above, more than one person who fulfils
the conditions in sub-paragraph (1) above, such one of them as may be
decided by agreement or, in default of agreement, by the county court shall
be treated as the surviving spouse for the purposes of this paragraph.
3(1) Where paragraph 2 above does not apply, but a person who was
a member of the original tenant's family was residing with him in the
dwelling-house at the time of and for the period of two years immediately
before his death then, after his death, that person or if there is more than
one such person such one of them as may be decided by agreement, or in
default of agreement by the county court, shall be entitled to an assured
tenancy of the dwelling-house by succession."
Sub-paragraph (2) of paragraph 2 was inserted by section 39(2) of, and
Schedule 4 paragraph 2 to, the Housing Act 1988.
Two issues arise in relation to Mr. Fitzpatrick's
application. The first issue is whether Mr. Fitzpatrick was "living with the
original tenant as his or her wife or husband" within the meaning of those
words in paragraph 2(2) of Schedule 1. If the answer to this question is in
the negative, the second issue is whether Mr. Fitzpatrick "was a member of the
original tenant's family . . . residing with him in the dwelling house at the
time of and for the period of two years immediately before his death" within
the meaning of paragraph 3(1) of the Schedule.
The central thrust of the argument advanced by Mr.
Blake Q.C. on behalf of Mr. Fitzpatrick was that the intention of Parliament
was to give protection to a person living with the deceased tenant in a close
personal relationship and that a broad and purposive approach should be given
to paragraphs 2(2) or 3(1) of the Schedule. It was submitted that there is now
widespread public acceptance of homosexuality and public recognition that
homosexuals live together in stable, loving and permanent unions in the same
way as men and women live together. A permanent and loving union between
homosexuals is akin to marriage and therefore should come within the
protection which Parliament gives to a person who has lived with a tenant as
his or her wife or husband or to a person who was a member of the tenant's
family residing with him.
These arguments were rejected by the majority of the
Court of Appeal. All three judgments in the Court of Appeal subjected the
issues arising in this difficult case to detailed analysis and made a careful
survey of the history of the relevant legislation and of the numerous
authorities. At the conclusion of his judgment Waite L.J., whilst recognising
the devoted and faithful life shared by Mr. Thompson and Mr. Fitzpatrick,
stated, at page 318:
"The survey which I have undertaken in this judgment shows,
however, that the law in England regarding succession to statutory tenancies
is firmly rooted in the concept of the family as an entity bound together by
ties of kinship (including adoptive status) or marriage. The only
relaxation, first by court decision and then by statute, has been a
willingness to treat heterosexual cohabitants as if they were husband and
wife."
Roch L.J. concluded his judgment at page 324 as follows:
"I agree with both Waite and Ward L.JJ. that the terms of
Schedule 1 should be reconsidered with a view to bringing cases such as the
present within the protection of the Schedule. No doubt Parliament will
consider whether the protection should be that afforded by paragraph 2 or
that afforded by paragraph 3 of the Schedule. Nevertheless, I am convinced
that it is for Parliament to make the necessary changes after debate when
considerations which may not have been raised in this appeal and which may
not be apparent to this court can be taken into account."
Applying a functionalist approach to the construction of paragraphs 2(2)
and 3(1) the conclusion of Ward L.J. at page 338 on the first issue was:
"I would say there is no essential difference between a
homosexual and a heterosexual couple and, accordingly, I would find that the
plaintiff had lived with the deceased tenant as his husband or wife."
On the second issue he stated at page 339:
"The test has to be whether the relationship of the
plaintiff to the deceased was one where there is at least a broadly
recognisable de facto familial nexus. I would not define that familial nexus
in terms of its structures or components: I would rather focus on familial
functions. The question is more what a family does rather than what a family
is. A family unit is a social organisation which functions through its
linking its members closely together. The functions may be procreative,
sexual, sociable, economic, emotional. The list is not exhaustive. Not all
families function in the same way. Save for the ability to procreate, these
functions were present in the relationship between the deceased and the
plaintiff."
The First Issue: Paragraph 2(2) of Schedule 1
The primary submission advanced on behalf of Mr.
Fitzpatrick to this House was that Parliament intended the words "living with
the original tenant as his or her husband or wife" to be a broad term to be
interpreted by the courts on an incremental basis to include any relationship
akin to marriage and not just a relationship between partners of opposite
sexes. I share the opinion of all your Lordships that Mr. Fitzpatrick is not
entitled to claim that he was living with Mr. Thompson as his wife or husband
within the meaning of paragraph 2(2). A person can only live with a man as his
wife when that person is a woman, and accordingly Mr. Fitzpatrick cannot claim
to have been living with Mr. Thompson as his wife. Similarly a person can only
live with another person as a husband when that other person is a woman, and
accordingly Mr. Fitzpatrick cannot claim to have been living with Mr. Thompson
as his husband. In Harrogate Borough Council v. Simpson (1984) 17
H.L.R. 205 the Court of Appeal held that the expression "living together as
husband and wife" in section 50 of the Housing Act 1980 is not apt to include
a lesbian relationship and I am in agreement with the opinion of Ewbank J. at
page 210 that:
"The essential characteristic of living together as husband and
wife, in my judgment, is that there should be a man and a woman and that
they should be living together in the same household."
Accordingly I am unable to agree with the conclusion
of Ward L.J. because I consider that it fails to take account of the essential
requirement of paragraph 2(2) which is that the claimant must have been living
with a male original tenant as his wife or with a female original tenant as
her husband.
The Second Issue: Paragraph 3(1) of Schedule 1
The secondary submission advanced on behalf of Mr.
Fitzpatrick was that if the wording of paragraph 2(2) excludes the
relationship of a couple of the same sex, the consideration that that
relationship is akin to marriage nevertheless qualifies it as being familial
in character so that within the meaning of paragraph 3(1) Mr. Fitzpatrick was
a member of Mr. Thompson's family. In considering this submission it is
relevant at the outset to have regard to the scheme of Schedule 1 to the Rent
Act 1977. Whilst in earlier provisions in the Rent Acts legislation a
distinction was not drawn between a widower of the tenant and a member of the
tenant's family so that under the 1920 Act it was held that a widower was a
member of the tenant's family (see Salter v. Lask [1925] 1 K.B. 584),
it is apparent that Schedule 1 to the 1977 Act deals separately with the
surviving spouse of the tenant and a person living with the tenant as his or
her wife or husband on the one hand and with a member of the tenant's family
on the other hand. If Mr. Fitzpatrick were entitled to claim the protection
given by Schedule 1 it would appear appropriate that he should obtain
protection under paragraph 2 and not under paragraph 3, because the essence of
his claim is that the relationship which he shared with Mr. Thompson was the
same relationship as that shared between a husband and wife or a couple living
together as husband and wife, save that the relationship was homosexual and
not heterosexual. Therefore if (as I would hold) Parliament did not intend
that a homosexual partner should obtain protection under paragraph 2, it would
appear to be a somewhat strained and artificial construction to hold that Mr
Fitzpatrick is entitled to obtain protection under paragraph 3.
In Harrogate Borough Council v. Simpson (1984)
17 H.L.R. 205, 210 Watkins L.J. stated:
"Mrs. Davies, who appears for the plaintiffs, contends that,
if Parliament had wished homosexual relationships to be brought into the
realm of the lawfully recognised state of a living together of man and wife
for the purpose of the relevant legislation, it would plainly have so stated
in that legislation, and it has not done so. I am bound to say that I
entirely agree with that."
If it was the intention of Parliament that a homosexual partner should have
the same protection under the Rent Acts as a heterosexual partner I think that
in 1988 Parliament would have used express words in paragraph 2(2) of Schedule
1 to place a homosexual partner in the same position as an unmarried
heterosexual partner rather than leave it to the courts to extend the meaning
of the phrase "a member of the original tenant's family" in paragraph 3(1) to
include a homosexual relationship. Instead in paragraph 2(2) Parliament used
terminology similar to that recently held by the Court of Appeal in the
Simpson case to be confined to a heterosexual relationship.
It is also necessary to recognise that the construction of paragraph 3(1)
is, in part, a question of law. The meaning given to the word "family" may
vary depending upon the context in which it is used and the popular meaning
given to the word may change to some extent with the passage of the years, but
the decision of this House in Carega Properties S.A. v. Sharratt [1979]
1 W.L.R. 928 makes it clear that in the context of paragraph 3(1) the meaning
given to the word "family" cannot be extended beyond the limits permitted by
the law. In Carega, referring to the judgment of Megaw L.J. in that
case in the Court of Appeal, Lord Diplock said at 931C:
"Megaw L.J. after quoting the 'Cohen question' went on to say, in
my view quite correctly [1979] 1 W.L.R. 3, 7: '. . . it is for
this court to decide, where such an issue arises, whether, assuming all the
facts found by the judge to be correct, the question may, as a matter of
law, within the permissible limits of the meaning of the phrase 'a member of
the tenant's family,' be answered 'Yes.'"
And Viscount Dilhorne said at page 932B
"My Lords, the meaning to be given to the words 'a member of
the original tenant's family' in Schedule 1, paragraph 3 to the Rent Act
1968 is in my view a question of law. 'Family' is a word the content of
which varies with the context in which it is used. When used in a statute,
it has not in my opinion the same meaning as the word 'household.' While a
household may consist only of members of a family, it can include persons
not capable of being so regarded. I accordingly cannot accept the argument
that 'family' in the Act can be read as meaning 'household.' While the
question which Cohen L.J. said in Brock v. Wollams [1949] 2 K.B. 388,
395 the county court judge should have asked himself, namely: 'Would an
ordinary man, addressing his mind to the question whether Mrs. Wollams was a
member of the family or not, have answered 'yes' or 'no,' has not
infrequently been posed, the answer to the question is not likely to extract
any more than the judge's personal view. It is to the highest degree
unlikely that a judge would ever say: 'I think the answer is 'Yes' but I
think an ordinary man would say 'No,' and if a judge did that he would in my
opinion be wrong.
It is for the judge to construe the statute and it is for him to
state his conclusion as to the meaning to be given to the word 'family' in
the context in which it appears, giving it, unless the context otherwise
requires, its ordinary natural meaning."
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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] QB 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] QB 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] QB 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] AC 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." |
|
In my opinion this passage does not assist Mr. Blake. In 1920 the fact of
homosexuals living together in permanent relationships was known to
Parliament, and if a homosexual couple was not intended by Parliament to come
within the term "family" at that date I do not consider that changed public
attitudes towards homosexuality mean that a new state of affairs has come into
existence which extends the meaning of that term.
A further difficulty which confronts the argument on
behalf of Mr. Fitzpatrick is that if it is correct and if the underlying
purpose of the legislation is to provide a secure home for a person who shares
his or her life with the tenant in a relationship of mutual affection,
commitment and support, it is difficult to see why two elderly spinsters who
live together for mutual support and companionship in old age without any
sexual element in their relationship and who give each other devoted care
should not qualify as members of the same family. I do not consider that the
absence of a sexual relationship distinguishes such a case from the present
one. The sexual relationship between a couple is a very important and
enriching part of their life together, but I am unable to accept that there is
such a distinction between an elderly homosexual couple who once had an active
sexual relationship and two elderly spinsters who never had a sexual
relationship that the homosexual couple should be regarded as members of each
other's family and the spinsters should not. If the courts depart from the
requirement of the link described by Russell L.J. and adopted by Lord Diplock
it is difficult to discern what criterion would include one person residing
with the tenant and exclude another.
The jurisprudence of the European Commission of
Human Rights and of the European Court of Justice does not assist the
submissions advanced on behalf of Mr. Fitzpatrick. In XYZ v. United
Kingdom (1997) 24 EHRR 143, 153, para. 53 the European Commission
stated:
"The Commission recalls that in a previous case it held that
the relationship of a woman with the child of her long-term lesbian partner
did not fall within the scope of family life, despite her sharing of a
parental role. The Commission found that despite the evolution of attitudes
towards homosexuality, a lesbian relationship did not fall within the scope
of the term 'family life'. Accordingly, Article 8 did not import a positive
obligation on a State to grant parental rights to a woman who was living
with the mother of a child. While homosexual relationships could raise
issues under the concept of 'private life', the Commission found that the
restriction complained of did not reveal any curtailment of the enjoyment of
their private life."
In Grant v. South West Trains Ltd. (1998) 3 B.H.R.C. 578, 594 the
European Court of Justice stated:
"33. The European Commission on Human Rights for its part
considers that despite the modern evolution of attitudes towards
homosexuality, stable homosexual relationships do not fall within the scope
of the right to respect for family life under art 8 of the European Human
Rights Convention (see especially the decisions in X v. UK (1983) 32
D. & R. 220, S v. UK (1986) 47 D. & R. 274 (para 2) and
Kerkhoven v. the Nederlands App. No. 15666/89 (19 May 1992,
unreported) (para 1)), and that national provisions which, for the purpose
of protecting the family, accord more favourable treatment to married
persons and persons of opposite sex living together as man and wife than to
persons of the same sex in a stable relationship are not contrary to art 14
of the convention, which prohibits inter alia discrimination on the ground
of sex (see the decisions in S v. UK (1986) 47 D. & R. 274 (para
7); C v. UK App. No. 14753/89 (9 October 1989, unreported) (para 2)
and B v. UK (1990) 64 D. & R. 278 (para 2)). . . .
35. It follows that, 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 opposite sex. . . ."
It was submitted on behalf of Mr. Fitzpatrick that
the decision in the present case would be confined to the construction to be
given to the term "family" in the Rent Acts and that a decision allowing the
appeal would not have wider implications. I am unable to accept that
submission. I am of the opinion that a decision in the context of the Rent
Acts by your Lordship's House that because of changing ways of life and social
attitudes the homosexual partner of a deceased tenant was a member of the
latter's family could have considerable implications for the social life of
this country and in other spheres of the law. In D.P.P. v. Lynch [1975] AC 653 the issue was whether the defence of duress was open to a person
charged with murder as a principal in the second degree. In dissenting
judgments (which were subsequently followed in the unanimous decision of this
House in Reg. v. Howe [1987] AC 417) Lord Simon of Glaisdale said at
pages 695H-696A:
"I am all for recognising frankly that judges do make law. And I
am all for judges exercising this responsibility boldly at the proper time
and place--that is, where they can feel confident of having in mind, and
correctly weighed, all the implications of their decision, and where matters
of social policy are not involved which the collective wisdom of Parliament
is better suited to resolve (see Launchbury v. Morgans [1973] AC 127, 136F-137A, 137G)."
and Lord Kilbrandon said at page 700G:
"It will not do to claim that judges have the duty--call it the
privilege--of seeing to it that the common law expands and contracts to meet
what the judges conceive to be the requirements of modern society. Modern
society rightly prefers to exercise that function for itself, and this it
conveniently does through those who represent it in Parliament."
I consider that those observations apply with equal force to the issue in
the present case and that the decision whether for the purposes of the Rent
Act a homosexual is now to be regarded as a member of his partner's family or
whether the law should be changed in some other way to protect a homosexual
partner on the death of the tenant is a matter for Parliament to decide.
I fully recognise the strength of the argument,
eloquently stated at the conclusion of Waite L.J.'s judgment at pages 318 and
319, that Parliament should change the law to give protection to the
homosexual partner of a deceased tenant and also to other persons who lived
with and gave devoted care to deceased tenants. But in my opinion such changes
can only be made by Parliament and accordingly I would dismiss the appeal.
LORD HOBHOUSE OF WOODBOROUGH
My Lords,
In this action Mr Fitzpatrick claims a declaration
that he has succeeded to the tenancy of the late Mr Thompson of the ground
floor and basement flat at 75A Ravenscourt Road London W6. He submits that he
has this entitlement by virtue of paragraphs 2 and 3 of the First Schedule to
the Rent Act 1977 as amended by the Housing Acts 1980 and 1988:
"STATUTORY TENANTS BY SUCCESSION.
1. Paragraph 2 . . . below shall have effect, subject to section 2(3)
of this Act, for the purpose of determining who is the statutory tenant of a
dwelling-house by succession after the death of the person (in this Part of
this Schedule referred to as 'the original tenant') who, immediately before
his death, was a protected tenant of the dwelling-house or the statutory
tenant of it by virtue of his previous protected tenancy.
2. (1) The surviving spouse (if any) of the original tenant, if
residing in the dwelling-house immediately before the death of the original
tenant, shall after the death be the statutory tenant if and so long as he or
she occupies the dwelling-house as his or her residence.
(2) For the purposes of this paragraph, a person who was living
with the original tenant as his or her wife or husband shall be treated as the
spouse of the original tenant.
(3) If, immediately after the death of the original tenant,
there is, by virtue of sub-paragraph (2) above, more than one person who
fulfils the conditions in sub-paragraph (1) above, such one of them as may be
decided by agreement or, in default of agreement, by the county court shall be
treated as the surviving spouse for the purposes of this paragraph.
3. Where paragraph 2 above does not apply, but a person who was a
member of the original tenant's family was residing with him in the
dwelling-house at the time of and for the period of two years immediately
before his death then, after his death, that person or if there is more than
one such person such one of them as may be decided by agreement, or in default
of agreement by the county court, shall be entitled to an assured tenancy of
the dwelling-house by succession."
He primarily submits that he is the "surviving spouse" of Mr Thompson
because he was living with him "as his or her wife or husband" (paragraph
2(2)). Alternatively, he submits that he was residing with Mr Thompson "as a
member of [his] family" (paragraph 3).
The relevant facts are not in dispute. Mr
Fitzpatrick and Mr Thompson were wholly unrelated. They had first met in June
1969 when Mr Fitzpatrick did some gardening jobs for Mr Thompson. In 1972 Mr
Thompson became the tenant of the flat, entitled to the statutory protection
of the Rent Acts. In late 1976, by which time they had become close friends
and lovers, Mr Fitzpatrick moved in to live with Mr Thompson. Mr Thompson
worked as a silversmith; Mr Fitzpatrick had a job as a security guard. In 1982
Mr Thompson (now in his late 50s) was made redundant and could not get another
job. Mr Fitzpatrick changed his job to running a mobile snack bar, with which
Mr Thompson helped. In January 1986, Mr Thompson had a bad fall injuring his
head. He never recovered. He suffered a severe stroke. He was in a coma for a
long time and after that never spoke again. He required constant care. Mr
Fitzgerald was dissatisfied with the care which Mr Thompson was getting in
hospital and in April 1986, having given up his job, took Mr Thompson back to
the flat. Save for a short interruption, he continued to care for Mr Thompson
himself until he died in November 1994.
Their relationship was that of close friends and (at
least up to January 1982) homosexual lovers. The depth of the relationship was
demonstrated by the sacrifices which Mr Fitzpatrick made during the later
years and the loving care he gave Mr Thompson up to his death. It appears that
Mr Thompson had no relations or other friends to help care for him. No case of
financial dependency in either direction has been alleged.
The statutory provisions upon which Mr Fitzpatrick
relies form part of a scheme for the transfer of protected tenancies following
the death of the original tenant which Parliament has substantially revised
from time to time. Since legislation of this type was first introduced in
1915, the provisions have gone through a number of versions and most of the
decided cases have inevitably dealt with those earlier versions. In my
judgment, the current wording must be construed having regard to the revised
scheme of which it now forms part. Parliament has from time to time considered
and decided to what extent the rights of succession should be increased or
varied, most recently in 1988, and has amended the Act. The Act is social
legislation. There are competing social policies and choices that are relevant
to the decision what statutory rights of succession should be granted. The
situation is complex. There are conflicting interests; indeed the subject
matter of these provisions is private law property rights. Inevitably,
boundaries have to be drawn which may on occasions give rise to hard cases.
I mention this aspect not only because it is
important but also because it is possible to have sympathy for those in the
position of Mr Fitzpatrick. A social argument can be made on their behalf for
sympathetic treatment. They are at least as meritorious as some of those who
clearly come within the scheme. But likewise they are no less meritorious than
some of those who clearly fall outside the scheme--devoted and caring friends
who have lived for a long time with the tenant in the premises but have never
engaged in sexual relations with the tenant. Similarly, some may argue that,
in view of changing social attitudes to homosexual relationships, the time has
come as a matter of policy to equate such relationships with heterosexual
ones. But such matters are for Parliament, not the courts. It is an improper
usurpation of the legislative function, for a court to adopt social policies
which have not yet been incorporated in the relevant legislation.
In the present case, the courts have been urged to
extend by a process of liberal interpretation the concept of family to cover
homosexual relationships and relationships of close long lasting friendship.
It is submitted that the usage of the word "family" may vary from time to time
and that it has no constant meaning: that accordingly it should now in 1999 be
given an up-to-date meaning: that spouse includes a homosexual relationship
"akin" to marriage: that immigration law has recently been revised to take
account of such relationships. This type of argument and its proper limits
were considered in the speech of Lord Wilberforce in Royal College of
Nursing v. D.H.S.S. [1981] AC 800 at 822, to which we were referred by
Mr Blake QC who appeared for Mr Fitzpatrick on this appeal. Lord Wilberforce
said:
"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 assumption that
Parliament's policy or intention is directed to that state of affairs. . . .
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. . . . In any event there is one course which the courts cannot take,
under the law of this country; they cannot fill gaps; they cannot by asking
the question "What would Parliament have done in this current case--not
being one in contemplation--if the facts had been before it?" attempt
themselves to supply the answer, if the answer is not to be found in the
terms of the Act itself."
Applying this to the present case, the relevant Act
was passed in 1977 and has been amended since. On any view it is difficult to
see what fresh set of facts has since come into existence. Homosexual
relationships have been known about and existed throughout any relevant period
of time and homosexual couples have shared accommodation. Not much has
changed; the highest that it can be put is that the public attitude to such
relationships has changed. This has nothing to do with any social policy
concerning statutory tenancies by succession. If, contrary to what I have just
said, it does have relevance, it is a matter for Parliament to consider not
for the courts to ask themselves: 'What would Parliament do now?' But even
then one has to take into account that this legislative scheme was amended as
recently as 1988. What Parliament then chose to do was to amend paragraph 2 of
the Schedule in terms which, as I will explain, are directly contrary to the
main submission of the Appellant and affirm the necessarily heterosexual
nature of the relevant relationship.
In the Court of Appeal, Waite and Roch LJJ declined
the invitation to adopt an extended interpretation of the statute: [1998] Ch.
304 at pp.318-319 and 324. I would happily quote what Waite LJ said in full
but as it is already set out in the published reports will refrain from doing
so. Waite LJ expressly accepted the criticisms of the Act but then went on to
refer to some of the difficult policy decisions which would have to be made if
the Act was to be revised to give effect to these criticisms. He asked: "If
succession rights are to be extended to couples of the same sex in a sexually
based relationship, would it be right to continue to exclude friends?" He
concluded that: |
"Few would support the potential for unfairness involved in a law
which gives automatic succession rights to wives, however faithless, and
children, however feckless, and at the same time denies any hope of
succession to friends, however devoted their loyalty to the joint household.
The judge was nevertheless right, in my view, to resist the temptation to
change a bad law by giving it a new linguistic twist. He correctly
acknowledged that such changes could only be made by Parliament."
I consider that Waite and Roch LJJ were, like the Judge, right to resist
the temptation.
But Ward LJ. was unable to do so. He, by contrast,
felt at liberty to give effect to his own views and to make his own value
judgments as to the appropriate treatment of homosexual relationships having
regard to the changes in social attitudes. He also felt that he was entitled
to refer to and take into account parliamentary debates and other material
subsequent to 1980 notwithstanding that no warrant for such an approach was
given by Pepper v. Hart [1993] AC 593 nor by any accepted canon of
construction of statutes. His judgment serves to reinforce the correctness,
and wisdom, of what was said by the majority.
No argument has been advanced in the present case
based upon any submission that the legislation is improperly discriminatory.
Such questions may arise hereafter but the arguments in the present case are
based solely upon submissions as to the correct construction of the statute as
amended.
As regards the first way in which Mr Fitzpatrick
puts his case--that he was Mr Thompson's "spouse" or was living with Mr
Thompson "as his or her wife or husband"--I agree with what has already been
said by your Lordships. They were living together as a homosexual couple.
Harrogate B.C. v. Simpson (1984) 17 H.L.R. 205, where the Court of
Appeal had to consider the parallel provisions in Part IV of the Housing Act
1980, was rightly decided and remains good law. To accept the submission of Mr
Fitzpatrick would be an exercise of legislation, not interpretation. I
therefore need not say more about the argument which Mr Fitzpatrick put in the
forefront of his case on this appeal.
I must however say something more about paragraph 2
since, as already observed, it has been preceded by different provisions. The
1977 Rent Act and its predecessors used the word "widow". The Housing Act 1980
amended the right to succession to cover surviving spouses; ie it was extended
to widows and widowers. The gender distinction was removed. Then in 1988, it
was amended again to cover a person living with the tenant as his or her wife
or husband. This extension brought in de facto relationships and
removed the requirement that the parties should have been legally married. It
thus subsumed the decision of the Court of Appeal in Dyson Holdings Ltd. v.
Fox [1976] QB 503. But it still required a heterosexual relationship
equivalent to marriage. Parliament did not go so far as to extend the
provision to homosexual relationships akin to marriage nor to friendships,
however close or long lasting, not accompanied by the additional factor of
living together as husband and wife. The criterion of as "husband and wife"
was retained and confirmed. (See also In re the Estate of John Watson
(Deceased), The Times, 31 December 1998, cited by Mr Blake, where
Neuberger J used reasoning wholly inconsistent with extending the category
beyond heterosexual relationships.)
The policy disclosed by the 1988 revision is thus to
recognise factual as well as legal relationships but to continue to require
that they correspond to the heterosexual concept of legal marriage. This
policy appears to adopt and conform to the decision and statements of
principle in the speech some years earlier of Lord Diplock (agreed to by the
other members of the House) in Carega Properties v. Sharratt [1979] 1
W.L.R. 928, to which I will come shortly.
As will already be apparent from my reference to
Part IV of the Housing Act 1980 and the Harrogate B.C case, there were
precedents for the type of language used for the 1988 amendment. Another was
the first Schedule to the Supplementary Benefits Act 1976. In the case
Crake v. Supplementary Benefits Commission [1982] 1 All E.R. 498, Woolf
J had to consider that Schedule and whether the relevant person was living
with the applicant as husband and wife. The facts were that the man was a
longstanding friend of the applicant who, after she had been seriously injured
in a road accident and her daughter was no longer able to look after her,
moved in to her home and lived there, looking after her and the house, indeed
doing all the things that a husband would do for a sick wife. It was not a
commercial arrangement. But they had no sexual relationship; they were not
living as husband and wife. Therefore the claim to the supplementary allowance
failed. The functional argument was rejected.
Turning now to paragraph 3, it covers (and gives
certain limited rights to) a person who does not come within paragraph 2 but
is a member of the tenant's family. Following through the policy of the
legislation, this extension covers those who are in a legal or de facto
relationship to the tenant of blood or affinity. The legal relationships are
thus the parents and grandparents, the issue, natural and adopted, of the
tenant or of his or her spouse, their respective siblings, nephews and nieces
and the spouses of such persons. The factual relationships are the
same--informally adopted children and (usually) children for whom the tenant
has parental responsibility--and persons with whom the tenant would have had a
relationship of affinity if the tenant was legally married to the person with
whom he or she is living as his or her husband or wife.
But, for the purposes of paragraph 3, the
relationship, whether of blood or affinity, must be an actual one. The person
must actually be a member of the tenant's family; it is not enough that he or
she be living with the tenant as if he or she was a member of the
tenant's family. (Sefton Holdings Ltd. v. Cairns (1987) 20 H.L.R. 124)
This is not in dispute.
In Carega, the defendant whom the landlord
was seeking to dispossess was in no blood relationship to the deceased tenant,
an elderly widow with whom he had gone to live 18 years earlier. Their
relationship was one of close friendship, platonic and filial. He had been 24
when he first came to know her. She would have liked to speak of him as her
son but this was not acceptable to him because his mother was still alive. He
therefore called her Aunt Nora. He was financially independent of her; his
motive during the 18 years he lived with her in her flat was simply kindness
and affection. The County Court judge had decided in favour of the defendant
on the ground that he was a member of her family. The Court of Appeal reversed
that decision.
In the House of Lords, Lord Diplock opened his
speech by saying:
"My Lords, the only question in this appeal is one of
construction of the Rent Act 1968. It is whether a person between whom and
the deceased statutory tenant of a dwelling house there is no connection by
way of consanguinity, of affinity, of adoption (de jure or de facto) during
minority or of regular sexual intercourse (past or present) can be a member
of the tenant's family within the meaning of Schedule 1, paragraph 3 to the
Act, so as to entitle him to become the statutory tenant of the dwelling
house by succession to the deceased."
Lord Diplock is thus listing the established
parameters of the concept of family and saying that the House has to decide
whether they should be extended. He refers to two de facto categories:
that which arises from adopting a child during its minority and that which
arises from regular sexual intercourse past or present. This last category has
now been subsumed into living "as his or her wife or husband". A sexual
relationship not amounting to living together as husband and wife will not
suffice but living together as husband and wife will suffice even if the
parties choose not to have sexual intercourse (as may also be the case in a
legal marriage). Lord Diplock declined to enter upon a discussion of the
correctness of the decision of the Court of Appeal in Dyson Holdings Ltd.
v. Fox [1976] QB 503 and as I have said that particular question has now
been resolved by statutory amendment.
There are other cases which illustrate the position
summarised by Lord Diplock.
Some early cases under the legislation equated
membership of a tenant's family with membership of his household. On this
reasoning it could even extend to his servants or lodgers. (Stewart v.
Mackay, 1947 S.C. 287) But these opinions were clearly wrong and cannot be
sustained; they would amount to substituting a judicial policy for that
contained in the legislation. They cannot now be supported nor did the
Appellant seek to do so. They are clearly inconsistent with later and superior
authority. See, for example, Ross v. Collins [1964] 1 W.L.R. 425, where
a devoted housekeeper of many years standing was held to be not entitled to
succeed to the tenancy: "there was no family relationship of any kind".
(p.430, per Pearson LJ)
The word "family" is as has often been said not a
term of art but describes a unit which has the familial characteristics. One
such characteristic is the existence of blood relationships. Thus, in Hawes
v. Evenden [1953] 1 W.L.R. 1169, a group which consisted of the tenant,
his mistress of some 12 years and their two children was easily recognised as
being a family. (cf Gammans v. Ekins [1950] 2 K.B. 328.) In Brock v.
Wollams [1949] 2 K.B. 388, a woman, who had at the age of 5 in 1912 been
informally adopted by the tenant and brought up as his daughter and who
returned later in her life (after her husband had died) to live with the
tenant, was held to be a member of his family, even though not a blood
relation. It was his de facto adoption of her whilst a child that made
her a part of his family.
The limits upon the ambit of the word family were
most forcefully expressed in the case of Gammans (sup). A
childless couple were living together as man and wife but they had not
married. The woman was not part of the man's family. Asquith LJ using language
which would scarcely be acceptable today unequivocally rejected the idea that
mere friendship or a sexual relationship between two people of the same or a
different sex could amount a family. He and the other members of the Court of
Appeal affirmed that the concept of family must involve blood or affinity. The
only exception was relationships whereby one person becomes in loco
parentis to another, eg Brock v. Wollams (sup).
Returning to the speech of Lord Diplock in
Carega, he left open the questions raised by the case of Dyson v.
Fox (p.930). As I have already observed, the legislature has, by the
amendments which it has chosen to make to the 1977 Act, already addressed the
implications of that decision. Lord Diplock's ratio decidendi follows
on a reference to the cases Gammans v. Ekins and Ross v.
Collins. Lord Diplock chose to adopt as his own what was said by Russell
LJ in the second of those cases:
"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."
This ratio decidendi is binding upon your Lordships. It is
inconsistent with the arguments of Mr Fitzpatrick. Living together as
homosexual lovers is not a familial relationship. It is a different
relationship: for present purposes, as counsel said, no better and no
worse--no less or more meritorious, just different. At one stage of his
submissions Mr Blake expressly disavowed any reliance upon the existence of
sexual relations between Mr Fitzpatrick and Mr Thompson. But Mr Blake would
have been wrong to abandon, if this was what he was doing, this plank of his
case. Absent a sexual relationship, the relationship would have been no more
than one of caring friendship which on any view does not suffice. He has to be
able to say that the existence of a (formerly active) homosexual relationship
makes all the difference. Stripped of that feature he cannot, on the English
authorities, succeed.
It is understandable why Mr Blake shrank from
putting his client's case in that way. It would expose the degree of the
extension of the previous authorities for which he has to contend and points
up the lack of support for his argument in the drafting of paragraphs 2 and 3
of the Schedule. If Parliament had wished to take this further radical step,
extending the rights of succession to protected tenancies, it would have given
some hint of its intention in the amendments which it made after 1977. It has
manifested no such intention. The Dyson decision has been recognised by
the Legislature in its amendment of paragraph 2. The argument of Mr Blake
would seem to treat as family two persons of the opposite sex living together
in the same flat or house who have or have had a long term stable sexual
relationship but do not choose to be known as man and wife. Regardless of the
reason for their choice, paragraph 2(2) makes it essential that each should be
living as the wife or husband of the other. If your Lordships are being asked
to say that nevertheless the survivor should still qualify as family under
paragraph 3 on the strength of the decision in Dyson, the invitation
should in my judgment be rejected. The amendment to paragraph 2 has laid down
the relevant criterion which the relationship must satisfy. By a parity of
reasoning, the Dyson case does not now provide Mr Fitzpatrick with a
route down which he can pass asserting an equivalence between homosexual and
heterosexual relationships.
The word "family", as I have previously observed, is
not a term of art. It is a word which is used to refer to a scheme of
relationships having certain characteristics. All those characteristics may
not be present in every case; this is the nature of descriptive words. But in
any case there must be sufficient of the relevant characteristics to justify
the application of the descriptive term. In deciding a legal question it is
necessary to decide on which side of the line the individual case falls. This
exercise is not one of choosing what social policy to support. It involves
looking at the language of the statute construed in its legislative context
and having regard to the previous decisions of the courts. The decided
authorities have told us what the relevant characteristics are. The
legislative context has been made clear by the history of the amendments made.
The fundamental difficulty for Mr Fitzpatrick is that he is seeking to
establish a legal right against the owners of the property, the Plaintiffs in
the action, based upon the advocacy of a social policy which may one day be
adopted by the Legislature but which has not yet been incorporated in
legislation and which anticipates the essential policy and drafting decisions
which would have to be taken by the Legislature.
Finally, I should shortly refer to certain legal
decisions from other jurisdictions upon which Mr Blake sought to rely. These
citations did not assist Mr Fitzpatrick's case.
Mr Blake strongly relied upon the approach of the
Court of Appeals of New York in Braschi v. Stahl Associates (1989) 544
N.Y.S. 2d 784. In a similar context, occupancy rights to a rent controlled
apartment, the court adopted a broad approach to the application of the word
family as being a relationship characterised by emotional and financial
commitment and interdependence and not limited to persons connected by blood
or law. However, the reasoning of the judgment of Judge Titone shows,
unsurprisingly, that the law of New York is inconsistent with decided English
cases. At p. 789 of the report, he adopts definitions of "family" from
Webster's Dictionary--"a group of people united by certain convictions or
common affiliation"--and from Black's Law Dictionary--"the collective body of
persons who live in one house and under one head or management". By such
criteria households of close friends are to be treated as families; this is
not the law of England nor is it suggested that it is.
The other class of citation made by Mr Blake was
from decisions of the European Court of Human Rights and the European Court of
Justice. In X, Y & Z v. The United Kingdom (1997) 24 EHRR 143,
it was alleged that the refusal to register a female to male transsexual ('X')
as the father of a child ('Z') born to the woman ('Y') with whom the
transsexual was living was a breach of Article 8 of the Convention
guaranteeing the right to family life. The child had been conceived by AID
from an anonymous donor. The Court recognised that the previous decisions of
the Court had not gone so far as to hold that a homosexual relationship was a
family relationship: see paragraphs 52 and 53 of the Commission's opinion and
paragraph 34 of the judgment and Kerkhoven v. Netherlands (19.5.92).
The Court held that there was a family unit in the case before it because of
the fact that the couple were living as husband and wife and the presence of
the child Z with whom X was living as her father. The Court therefore accepted
the applicability of Article 8 but went on to hold that there had been no
breach. The reasoning of the judgment is in line with the English law and is
inconsistent with Mr Blake's submissions. A homosexual couple living together
does not constitute a family. As regards the right to marry (Article 12), the
Court has affirmed the heterosexual character of marriage and has refused both
under Article 12 and Article 8 to treat same sex couples, even where one is a
transsexual, as the same as heterosexual couples. (Sheffield and Horsham v.
United Kingdom (1998) 27 E.H.R.R. 163.
In Grant v. South West Trains 3 BHRC 578,
the European Court of Justice was concerned with an allegation that
concessionary fares granted to heterosexual couples, married or unmarried, was
unlawfully discriminatory against homosexual couples. The allegation was
rejected because the relationships were not equivalent. The Strasbourg
jurisprudence was referred to as well as previous decisions of the ECJ. The
Court held:
"It follows that, 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 opposite sex."
Here again the citation does not assist Mr Fitzpatrick. Indeed it
underlines that the developments for which he contends involve developments of
policy and fall far outside the proper ambit of statutory construction.
I would dismiss the appeal and uphold the judgments
of the majority in the Court of Appeal.
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