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Secretary of State for Work and Pensions v M [2006] UKHL 11

Convention rights of child support payer in same-sex relationship not infringed by pre-2005 legislation.

House of Lords: Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Mance (8 March 2006)

Convention rights of child support payer in same-sex relationship not infringed by pre-2005 legislation.

This case concerned a mother, the respondent, of two children who spent the greater part of each week with their father, her former husband from whom she was divorced. As the non-resident parent, she was required to pay maintenance under the Child Support Act 1991. According to the rules applicable during the period to which the claim related, namely 2001 to 2002, the income and outgoings of a heterosexual partner living with the payer could be taken into account in calculating the payer's liability; however, the mother in this case was in a same-sex relationship, with the result that she was required to pay more towards the maintenance of her children than she would have had to pay if she were living with a heterosexual partner.

The mother claimed that her situation fell with the ambit or scope of Article 8 (Right to respect for private and family life) of, or Article 1 (Protection of property) of the First Protocol to, the European Convention for the Protection of Human Rights and Fundamental Freedoms (the 'Convention'), and thus she was discriminated against on the ground of sex, in violation of Article 14 of the Convention.

The mother succeeded at first instance, with a ruling that her housing costs were to be calculated on the basis that her same-sex partner was a member of her family: the tribunal reasoned that the Article 14 right to non-discrimination in respect of enjoyment of other Convention rights – here the Article 8 right to respect for private and family life – without unjustifiable discrimination would be violated unless the legislation were so read as to include same-sex couples in the concept of 'family' and 'partner'. This decision was upheld on appeal by the Child Support Commissioner, and by a majority of the Court of Appeal (Kennedy LJ dissenting). The Secretary of State appealed.

The principal issue before the House of Lords was whether the application to the mother of the maintenance formula contained in the child support rules fell within the ambit of Article 8, or Article 1 of the First Protocol, for the purposes of Article 14 of the Convention. Their Lordships reviewed in great detail the authorities relating to the relevant Articles, and also the changing attitudes, reflected both in society and in the law, towards same-sex relationships.

Held, allowing the appeal (Baroness Hale dissenting), that the mother's claim fell outside the ambit of Article 8, and so Article 14 was not engaged. In essence, the mother was not complaining of being deprived of all contact with her children, or of being deprived of contact with them at her home where her same-sex partner lived; she was complaining that she should be paying less towards their maintenance, and this was too tenuous to establish a link with Article 8. Moreover, it was within the United Kingdom's margin of appreciation whether to treat a same-sex couple for the purposes of the 1991 Act as a family unit or as two individuals.

The view was expressed that, from today's moral viewpoint, unequal or discriminatory treatment of same-sex couples has never been justified, but this case was concerned with the legal position during a particular period in the years 2001 to 2002; if it was right that, until quite recently, neither the Strasbourg court nor a UK domestic court would have regarded a same-sex relationship as involving family life, then it followed that it was not then unlawful, under Articles 8 and 14 of the Convention, to discriminate in domestic legislation between opposite and same-sex couples. Nevertheless, it was acknowledged that, although this case raised serious issues of principle, the outcome would have little practical effect in view of the coming into force on 5 December 2005 of the Civil Partnership Act 2004, which generally grants to same-sex couples the same legal recognition that is available to opposite-sex couples.

Baroness Hale, in her dissenting judgment, considered this to be a case of unjustified discrimination in the enjoyment of the Convention right to respect for private and family life, and followed broadly the reasoning adopted by the tribunal, the Child Support Commissioner and the majority of the Court of Appeal.

Read the full text of the judgment here