M had challenged the Child Support Regulations saying that they discriminated against her. She was the liable parent, and in a monogomoud lesbian relationship. As such she said that she was treated worse than she would have been since the Regulations did not that her relationship as constituting a family. The Secretary of State appealed against the finding that the regulations were discriminatory. The second claimant had challenged a similar result in her claim for Housing Benefits.
Held: The court upheld the Commissioner’s decision.
Lord Justice Sedley considered that the applicant’s previous family life (i.e. the relationship between herself, her former husband and her children) was not within the ambit of Article 8. As for her relationship with her partner, he read the ECHR decision in Estevez to establish that the question whether same-sex relationships fall within Article 8 is a matter of domestic law. Several domestic precedents treated same-sex couples as no different from heterosexual couples in certain contexts, and the applicant’s relationship constituted family life for the purposes of the case. Any discrimination against the applicant on the grounds of her sexual orientation called for compelling and proportionate justification. The child support scheme impinged in some significant degree on the family life of the applicant and her partner, bringing their situation within the ambit of Article 8. As the scheme discriminated against the applicant on grounds of her sexual orientation, Article 14 was also engaged. He rejected the argument that the scheme came within the ambit of the applicant’s private life, since the scheme did not set out to recognise the applicant’s sexual orientation. Regarding Article 1 of Protocol No. 1, he considered it unnecessary to decide if it too was engaged, although he doubted that it was. He found that the Government had not provided any acceptable justification for the discrimination against the applicant. He rejected the arguments advanced on behalf of the Secretary of State about the difficulty of correcting a problem that was but one instance of a distinction applied throughout the wider social security system, observing that there was no doctrine of justification by the logistics of reform. As for a remedy, he considered that the appropriate course was to disapply (in effect delete) the definition in the regulations of an unmarried couple so as to eliminate the requirement of heterosexuality.
Judges:
Kennedy, Sedley, Neuberger LJJ
Citations:
[2004] EWCA Civ 1343, [2005] 2 WLR 740, [2006] QB 380
Links:
Statutes:
Child Support Act 1991, Child Support (Maintenance Assessments and Special Cases) Regulations 1992 1(2), Housing Benefit (General) Regulations 1987, European Convention on Human Rights 8
Jurisdiction:
England and Wales
Citing:
Appeal from – (Un-named) SSCS 1-Oct-2003
The mother had challenged payments required of her by way of child support. The Secretary of State now appealed.
Held: The appeal was rejected: ‘a gay relationship can be a family for the purpose of [A]rticle 8’. There was no reason, in the . .
Cited – Mata Estevez v Spain ECHR 10-May-2001
The claimant complained that the state did not give proper recognition of his relationship with his deceased same sex partner.
Held: The court noted the growing tendency in a number of European states towards the legal and judicial recognition . .
Cited by:
At CA – JM v United Kingdom ECHR 21-Nov-2008
. .
At CA – JM v United Kingdom ECHR 28-Sep-2010
The applicant alleged that she had been the victim of discrimination on the basis of sexual orientation in the assessment by the authorities of her financial liability under the regulations on child support. . .
Lists of cited by and citing cases may be incomplete.
Child Support, Discrimination, Benefits
Updated: 23 June 2022; Ref: scu.216576