CCS 1153 2003
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 08 March 2006 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCS 1153 2003 |
| Subject Matter | Child support |
R(CS) 4/06
(Secretary of State for Work and Pensions v M [2006] UKHL 11)
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HL |
(Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Walker of Gestingthorpe Baroness Hale of Richmond Lord Mance) |
CCS/1153/2003 |
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8 March 2006 |
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Human rights – maintenance assessment – whether differential treatment of same-sex couples and heterosexual couples discriminatory contrary to Article 14 of the Convention
M was the non-resident parent of two children. She was living with a same-sex partner. Her liability for child support maintenance was assessed in accordance with the rules in force at the time, which had the effect that she was required to pay more than would be required of a parent living as a member of a heterosexual couple in the same circumstances. She appealed, arguing that she had been unlawfully discriminated against by virtue of her sexual orientation, basing her claim on Article 8 of, and Article 1 of the First Protocol to, the European Convention on Human Rights, taken together with Article 14. The appeal tribunal agreed with M, relying on section 6 of the Interpretation Act 1978 to read the statutory definition of “unmarried couple” in the Child Support (Maintenance Assessments and Special Cases) Regulations (the Regulations) to include a same-sex couple. The Child Support Commissioner dismissed the Secretary of State’s appeal, but on the basis that the qualifying words “unless the context otherwise provides” in the statutory definition permitted a non-discriminatory reading based on section 3 of the Human Rights Act 1998. The Secretary of State appealed to the Court of Appeal
In a combined judgment with Langley v Bradford Metropolitan District Council and another [2004] EWCA Civ 1343 (reported as R(H) 6/05), the majority of the Court of Appeal (Kennedy LJ dissenting) dismissed the Secretary of State’s appeal. Sedley LJ agreed with the Commissioner that the different level of respect accorded by the child support legislation to M’s family life with her new same-sex partner (as against a heterosexual relationship) came within the ambit of Article 8 and engaged Article 14. However, the remedy was to invoke section 3 of the 1998 Act to disapply the definition of “unmarried couple” in the Regulations. Neuberger LJ agreed, but also found that the scheme fell within the scope of Article 1 of the First Protocol. The Secretary of State appealed to the House of Lords
Held, allowing the appeal (Baroness Hale dissenting), that:
1. the rules governing the calculation of child support liabilities were altogether remote from the mischief at which Article 1 of the First Protocol was directed, since the child support scheme is not concerned with expropriating property but rather with enforcing the personal obligation of non-resident parents to support their children (paragraphs 5, 33, 90 and 159);
2. (per Lord Bingham, Lord Walker and Baroness Hale) M’s relationship with her same-sex partner was capable of constituting “family life” within Article 8 (paragraphs 5, 87 and 112); however (per Lord Walker and Lord Bingham) M’s complaint did not fall within the ambit of Article 8 in conjunction with Article 14 because the child support assessment had no more than a tenuous link with respect for family life (paragraphs 5 and 87);
3. (per Lord Nicholls and Lord Mance) while in principle the child support regime fell within the ambit of Article 8 (paragraphs 19 and 127), established Strasbourg jurisprudence (the most recent case being Estevez v Spain, Application no 56501/00, 10 May 2001) did not yet recognise that the Convention guarantee of respect for family life was applicable to same-sex relationships (paragraphs 27 and 151);
4. the link with respect for M’s private life was also a tenuous one and did not come within the scope of Article 8 since there had been no improper intrusion into her private life (paragraphs 5, 31 to 32, 88 and 157);
5. (obiter) even if the child support regime were, in the respect complained of, within the ambit of a Convention right, the difference in treatment under the pre-amendment scheme was justified as the Regulations of which M complained represented the accepted values of society at the time of the assessment (2001/2002), and the United Kingdom had acted with reasonable promptness and within its margin of appreciation in introducing the complex legislation necessary to enable the Regulations to be amended (paragraphs 6, 34, 96 and 153 to 156).
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Philip Sales and Daniel Kolinsky (instructed by the Solicitor, Department for Work and Pensions) appeared for the appellant.
Karon Monaghan, Ulele Burnham and Garreth Wong (instructed by Liberty) appeared for the respondent.
LORD BINGHAM OF CORNHILL:
My Lords,
1. I have had the great benefit of reading in draft the opinion of my noble and learned friend Lord Walker of Gestingthorpe. I am in complete agreement with it, and would for the reasons which he gives make the order which he proposes. My noble and learned friend’s comprehensive summary of the relevant materials and authorities, for which I am greatly indebted to him, enables me to indicate quite briefly (and with no intention to derogate from his reasoning) why I agree with him.
2. Ms M, the respondent, is the mother of two children who spend the greater part of each week with their father, her former husband from whom she is divorced. Under the Child Support Act 1991 she, as the non-resident parent, is required to contribute to the costs of maintaining the children incurred by the father as the parent with care. The amount of her contribution is calculated according to complex rules laid down in regulations made under the 1991 Act, and are in important respects modelled on rules which have for many years obtained in the administration of social security benefits. According to those rules, in assessing a person’s entitlement to benefit, some account has until recently been taken of the income and outgoings of a heterosexual partner with whom an applicant is living, but not of those of a homosexual partner. This may, and often does, work to the benefit of an applicant, but may work to the applicant’s disadvantage. It does so in the case of Ms M. She now lives with a homosexual partner. As applied to her, on the facts of her case, the rules result in her being required to pay more towards the maintenance of her children than she would have to pay if she were living with a heterosexual partner.
3. Ms M does not complain that her rights under Article 8 of, or Article 1 of the First Protocol to, the European Convention are or have been violated. She claims that her situation falls within the ambit or scope of these provisions and that she is accordingly entitled to complain that her enjoyment of these rights has been the subject of adverse discrimination on the ground of sex, in violation of Article 14 in conjunction with either the Article or the Protocol or both.
4. It is not difficult, when considering any provision of the Convention, including Article 8 and Article 1 of the First Protocol (1 FP), to identify the core values which the provision is intended to protect. But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all. At the inner extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are. At the outer extremity, it may not. There is no sharp line of demarcation between the two. An exercise of judgment is called for. Like my noble and learned friend in [60] of his opinion, I cannot accept that even a tenuous link is enough. That would be a recipe for artificiality and legalistic ingenuity of an unacceptable kind.
5. Like Kennedy LJ in the Court of Appeal, I do not think the enhanced contribution required of Ms M impairs in any material way her family life with her children and former husband, or her family life with her children and her current partner, or her private life. No doubt Ms M has less money to spend than if she were required to contribute less (or would do so, but for the discretionary adjustment to which my noble and learned friend refers in [46] of his opinion). But this does not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life, nor does it invade...
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