UK discriminated by making same-sex relationship mum pay more child maintenance
30 September 2010
J M v. The United Kingdom – 37060/06  ECHR 1361 – Read judgment
The European Court of Rights has declared that rules on child maintenance prior to introduction of the Civil Partnership Act discriminated against those in same-sex relationships.
The events happened nearly a decade ago and the law in relation to same-sex couples has greatly altered since, so it will be of limited relevance to those paying child benefit now. Of more interest is the reasoning of the majority in deciding the case under the right to peaceful enjoyment of property rather than the right to family life.
The case summary is based on the Court’s press release, and is followed by my comment.
The applicant was the mother of two children, born in 1991 and 1993. After the applicant and her husband divorced she left the family home. The husband became the parent with care of the children for the purposes of the UK’s child support legislation, and the applicant, as the non-resident parent, was required to contribute financially to the cost of their upbringing.
Since 1998 the applicant had been living with another woman in an intimate relationship. Her child maintenance obligation was assessed in September 2001 in accordance with the regulations that applied at that time. These provided for a reduced amount where the absent parent had entered into a new relationship, married or unmarried, but took no account of same-sex relationships. In the applicant’s case this was a difference between the £47 she was required to pay as opposed to the £14 she would have been liable for if she had formed a new relationship with a man.
Her complaint was upheld by three levels of jurisdiction, but the case was overturned by a majority ruling in the House of Lords in 2006. The applicant’s reliance on Article 8 of the Convention, especially its family life aspect, was rejected. Two members of the majority held that the applicant’s situation did not fall within the ambit of Article 8 of the Convention as the link between the regulations and her relationship with her partner was too tenuous. Even if it were not, they considered that the United Kingdom had remained within its margin of appreciation up to the point in time when the Civil Partnership Act 2004 removed the difference in treatment complained of. The other two members of the majority held that same-sex relationships were not, at that time, recognised by the Strasbourg case-law as a form of family life within the meaning of Article 8. All of the members of the majority rejected the argument that the situation was within the ambit of Article 1 of Protocol No. 1. They saw that provision as primarily concerned with the expropriation of assets for a public purpose and not with the enforcement of a personal obligation of an absent parent. It would be artificial to view child support payments as a deprivation of the absent parent’s possessions.
J.M. complained before the Court that, when setting the level of child maintenance she was required to pay, the authorities had discriminated against her on the basis of her sexual orientation. She relied on Article 14 (prohibition of discrimination), submitting that Article applied to her situation either in conjunction with Article 8 (right to respect for private and family life) and/or Article 1 of Protocol No. 1 (protection of property).
Third-party comments were received from the Equality and Human Rights Commission, London.
Decision of the Court
Unlike the English courts, the judges at Strasbourg took the view Court that the case most naturally fell within the scope of Article 1 of Protocol No. 1. The sums paid by the applicant out of her own financial resources towards the upkeep of her children were to be considered as “contributions” (just like social security benefits or taxation) since payment was required by the relevant legislative provisions and enforced through the Child Support Agency. Article 14 thus applied to the situation complained of. The Court did not find it necessary to decide whether the facts of the case fell within the scope of Article 8.
Article 14 in conjunction with Article 1 of Protocol No. 1
In order for an issue to arise under Article 14, there had to be a difference in the treatment of persons in relevantly similar situations. Where the complaint was one of discrimination on grounds of sexual orientation, the State had to give particularly convincing and weighty reasons to justify such a difference in treatment.
The Court considered that J.M. could compare her situation to that of an absent parent who had formed a new relationship with a person of the opposite sex. The only point of difference between her and such persons was her sexual orientation. Therefore, her maintenance obligation towards her children had been assessed differently on account of the nature of her new relationship.
Yet, bearing in mind the purpose of the domestic regulations, which was to avoid placing an excessive financial burden on the absent parent in their new circumstances, the Court could see no reason for such difference in treatment. The Court therefore concluded that there lacked sufficient justification for such discrimination in 2001-2002. The reforms introduced by the Civil Partnership Act some years later, however laudable, had no bearing on the matter.
The Court therefore held that there had been a violation of Article 14 in conjunction with Article 1 of Protocol No. 1, and awarded the applicant 3,000 euros in respect of non-pecuniary damage under Article 41.
There cannot be any surprise that the Court decided the way it did. Whatever the situation obtaining at the time the applicant originally appealed her position, today there is no justification, in the context of child support legislation, for distinguishing between families according to the sexual orientation of the partners. The purpose of the regulations was to determine the financial obligation of the absent parent, a matter on which his or her sexual orientation should have no bearing. Of course now the Civil Partnership Act reforms have corrected the position.
The real interest in this case – which deals with a time-limited violation only – is why the English judges considered it (although ultimately rejected it) under Article 8 (right to private and family life), whilst the Strasbourg Court chose to deal with it under Article 1 Protocol 1 (right to peaceful enjoyment of property). Interestingly (although the majority was not with him in this regard) Lord Justice Kennedy in the Court of Appeal hearing in this case ( EWCA Civ 1343) based his finding that Article 1 Protocol 1 was not engaged on his particular interpretation of the child support scheme, which was concerned with
the allocation of assets to discharge an existing obligation. To hold that any situation in which there was a net adverse financial impact on an individual constituted a prima facie deprivation of possessions would be an unacceptably broad interpretation. There would be almost no limit to the circumstances in which that provision would be sufficiently engaged for the purposes of Article 14.
The House of Lords also dismissed out of hand the alleged link with Article 1 Protocol 1, and considered that the statutory scheme for child maintenance was not one of the modalities of the exercise of the guarantee of the right to respect for private life:
The nature of the discrimination alleged was not sufficient to engage that provision; otherwise, every case of discrimination on the ground of sexual orientation would be within the ambit of Article 8. (Lord Nicholls, para 16)
Naturally, the applicant thought it worth the risk of taking this up with Strasbourg, invoking Article 8 and contending that sexual orientation was clearly established in Convention case-law as “a most intimate aspect of the individual’s private life. Differential treatment of a person on this ground by a public authority, causing them prejudice, demonstrated a lack of respect for an important component of their private life. The child maintenance regulations demonstrated respect for the family life of the new household of the absent parent, as long as they had entered into a relationship with a person of the opposite sex. By excluding same-sex relations, the regulations “sent a clear message that these were less worthy of respect and dignity than heterosexual relations.”
The government on the other hand maintained that the mere fact that liability to contribute towards the cost of her children’s upbringing might have some effect on the financial situation of her new household was insufficient to bring the whole matter within the ambit of Article 8. Otherwise any financial liability, or benefit, would be deemed as coming within the ambit of the family life aspect of Article 8. Since the Convention did not confer a right to full protection of private or family life against all interference, but a right to respect for private or family life, it followed that a significant threshold of intrusion had to be crossed before there could be an interference that called for justification under Article 8 (2).
These arguments turned around the breadth or narrowness of the ambit of Article 8 and therefore it was probably to avoid a perceived extension of the family life limb of the provision that the Court chose to dispose of the matter under Article 1 Protocol 1.
The Court noted the House of Lord’s position that A1P1 was primarily concerned with the expropriation of assets for a public purpose and not with the enforcement of a personal obligation of the absent parent and that it was artificial to view child support payments as a deprivation of the absent parent’s possessions. Strasbourg found this too “narrow” a view. In Strasbourg jurisprudence, in particular in the context of entitlement to social security benefits, a claim may fall within the ambit of Article 1 of Protocol No. 1 so as to attract the protection of Article 14 of the Convention even in the absence of any deprivation of, or other interference with, the existing possessions of the applicant
Three of the judges (Garlicki, Hirvela and Vucnic) expressed concern that the majority dismissed the question of Article 8 so summarily. This is because the Court has only very recently recognised that Consequently the relationship of a cohabiting same-sex couple living in de facto stable partnership falls within the notion of family life, just as the relationship of a different-sex couple would – as recently as June 2010 (Schalk and Kopf v Austria). The instant case represented a good opportunity to contribute to this emerging case-law, and they regarded it as “regrettable” that the majority chose to avoid taking a clear position.
Judicial self-restraint is often a virtue, but not in cases in which courts should admit their own mistakes. It cannot be excluded that the Court was wrong already in Mata Estevez. In any case, we should not have refrained from unequivocal confirmation that today, in 2010, the notion of family life can no longer be restricted to heterosexual couples alone.
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