Secretary of State for Work and Pensions (Appellant) v. M (Respondent)
26. This ruling by the ECtHR was unanimous and unequivocal. By the reference to 'margin of appreciation' in this context I do not understand the court to be saying that each contracting state may decide for itself whether the relationship between same sex couples constitutes family life within the Convention. If that were so, the effect would be that, as applied to same sex couples, family life in article 8 would have a different content from one contracting state to another. That would be surprising. Rather, the court was saying that, in the present state of Strasbourg jurisprudence, contracting states are not required by the Convention to accord to the relationship between same sex couples the respect for family life guaranteed by article 8. For the time being the respect afforded to this relationship is a matter for contracting states.
27. This means that, as Strasbourg jurisprudence currently stands, the relevant law of the United Kingdom is not subject to scrutiny by the ECtHR so far as its Convention-compatibility is challenged on the basis that the relationship between a same sex couple constitutes family life within article 8. As confirmed in the Estevez ruling, the ECtHR does not at present recognise that the Convention guarantee of respect for family life is applicable to this relationship.
28. The decision in the Estevez case is the most recent pronouncement by the ECtHR on this subject. The later case of Karner v Austria (2003) 38 EHRR 528 adds nothing. There the court expressly did not decide whether the applicant's case fell within the scope of 'family life' or 'private life': see paragraph 33. The court thus declined to revisit its earlier decisions on this point. The court decided the case on a different basis.
29. In its interpretation of Convention rights your Lordships' House is not bound to follow decisions of the ECtHR. The House is bound only to take these decisions into account. But the House will not depart from a decision of the ECtHR on the interpretation of an article in the Convention save for good reason. It goes without saying that it would be highly undesirable for the courts of this country, when giving effect to Convention rights, to be out of step with the Strasbourg interpretation of the relevant Convention article.
30. In the present case there is no good reason. The increasingly widespread acceptance in this country that same sex couples may have a family life just as much as heterosexual couples is not an adequate reason. Clearly the law in Strasbourg, as much as the domestic law in this country, is in a state of transition. Assuredly the time will come in Strasbourg when a sufficiently developed consensus among contracting states will make it no longer appropriate for contracting states to have a 'margin of appreciation' on this point. Then the Estevez ruling will be overtaken. Clearly also the ECtHR is the court best placed to judge when that time arrives. It is not for the courts of this country to pre-empt that decision.
Article 14 and the claimant's private life
31. The claimant also based her claim on article 14 read in conjunction with the protection article 8 affords to respect for the claimant's private life. I cannot accept this further basis of claim. By adopting the 'single unit' approach with heterosexual couples the statutory formulae set out to respect their family life, not the 'private' life of each of them. The statutory scheme was not one of the 'modalities' of the exercise of the guarantee of the right to respect for private life.
32. True, by treating heterosexual couples and same sex couples differently the pre-amendment scheme drew a distinction based on sexual orientation, and sexual orientation is central to every individual's personality. But, here again, the claim cannot succeed. The purpose for which the statutory scheme drew this distinction was to assess the reasonable amount of child maintenance contributions payable by a non-resident parent. I do not think legislation enacted for that purpose lies within the ambit of the protection afforded to the private life of a non-resident parent. The nature of the discrimination involved here, sexual orientation, cannot be regarded as sufficient in itself to bring a case within the ambit of the private life heading of article 8. Otherwise every case of discrimination based on sexual orientation would be within the ambit of article 8. It must always be necessary to look at the wider context, including the consequences of the discrimination and the effect these consequences have on the claimant's private life. In this case it is not suggested that the discrimination had any significant adverse impact on the claimant's life-style.
Article 14 and protection of property
33. Nor is article 14 engaged in this case in conjunction with the protection article 1 of the first protocol affords to possessions. A non-resident parent is responsible for contributing to the maintenance of his children. The Child Support Act 1991 and its attendant regulations quantified the amount of that contribution and provided machinery for its collection. That is far outside the scope of article 1 of the first protocol. That is very distant from the type of interference at which article 1 is aimed.
34. I would hold therefore that article 14 is not engaged in any of the respects claimed. Accordingly it is not necessary to decide whether, had article 14 been engaged, the difference in treatment under the pre-amendment scheme was justified. Had it been necessary to decide this issue I would have agreed with the views expressed on this point by my noble and learned friends Lord Bingham of Cornhill and Lord Walker of Gestingthorpe. I would allow this appeal.LORD WALKER OF GESTINGTHORPE
The respondent's liability under the Child Support Act
35. The Child Support Act 1991 ("the 1991 Act") established a new system intended to improve the assessment, collection and enforcement of payments for the maintenance of children whose parents are living apart. That system has recently been considered by your Lordships' House in R (Kehoe) v Secretary of State for Work and Pensions  UKHL 48,  AC 42, and it is unnecessary to repeat the detailed description to be found there. The system is administered by the Child Support Agency ("the CSA"). The CSA is not a separate statutory corporation. It is part of the government department administered by the Secretary of State for Work and Pensions, on whom all the relevant duties, powers and discretions are conferred.
36. As is, sadly, notorious, the CSA has fallen far short of its ambitious aims, and many parents with care of children (such as Mrs Kehoe) have failed to receive, through the CSA, payments which ought to have been made by absent parents. This appeal is concerned with payments which were regularly made to the CSA by Ms M in respect of her two children, now aged 14 and 12. Ms M is (in the statutory shorthand) a "non-resident" (formerly "absent") parent, although her children do in fact spend two and a half days a week with her. Her ex-husband is regarded as the parent with care, as the children spend the rest of the week with him.
37. Since 1998 Ms M has lived with a same-sex partner. Her partner is also a non-resident parent. Since 2001 they have had a jointly-owned house with a mortgage for which they are both responsible. They have a joint bank account. Ms M has complained of a breach of her human rights because in the calculation of her payments under the 1991 Act, and regulations made under that statute, her same-sex partner's contribution to their joint housing costs was treated by the Secretary of State as reducing her (Ms M's) deductible housing costs; if she had been living with a man (whether married to him or not) his contribution to the mortgage would have been treated as part of hers, and her weekly payment would (apart from any special discretionary adjustment) have been significantly smaller. There are some further refinements which come into the calculation, as I shall mention later; but the point on housing costs makes the biggest practical difference.
38. I should at once interpose that the position has now changed radically, as a result of the coming into force on 5 December 2005 (as it happens, the first day of the appeal hearing before your Lordships) of the Civil Partnerships Act 2004 ("the 2004 Act") and subsidiary legislation made under that statute. Your Lordships' decision will not therefore have any prospective effect, and (because of section 28ZC of the 1991 Act as inserted by the Social Security Act 1998) it will have little practical effect for the past either, in relation to the limited issue actually raised in the appeal. Nevertheless the appeal raises questions of principle of considerable general importance. I shall have to come back to the significance of the 2004 Act.
39. The CSA and the system which it operates are not strictly speaking part of the social security system. The CSA is (as has been explained in Kehoe) an official intermediary intended to quantify and enforce a non-resident parent's obligation to support his or her child or children. Nevertheless the CSA system is closely tied in with social security. The parent with care (usually the mother) may be receiving income support or other social security benefits, and in those circumstances the Secretary of State may treat the parent with care as having applied for a maintenance assessment (and the parent with care is obliged to cooperate in the application). Moreover the complex formulae used to calculate a non-resident parent's liability mesh in with, and to some extent reproduce, provisions in the social security legislation.
40. The calculations to be made are to be found in section 11 of and Schedule 1 to the 1991 Act and in regulations, the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 SI 1992/1815 as amended by numerous later statutory instruments ("the Regulations"). These provisions are extremely complex and the complexity is increased by extensive changes made, with effect from 3 March 2003, by the Child Support, Pensions and Social Security Act 2000 (there have also been many other less extensive amendments). The courts below referred to the provisions in force before 3 March 2003, and I shall do the same, treating them (as does the agreed statement of facts and issues) as if they were still in force. The amendments do not affect the principles at issue in this appeal.
41. The essential point for present purposes was set out very clearly by Sedley LJ in the Court of Appeal  EWCA Civ 1343, para 9:
The following paragraphs of his judgment explain why that is so. The 1991 Act and the Regulations contain a multiplicity of special definitions: "assessable income," "net income," "exempt income," "disposable income" and "protected income". The non-resident parent's liability depends primarily on his or her assessable income, which is net income less exempt income (para 5 of Schedule 1 to the 1991 Act). There are complex provisions for determining net income (Regulation 7 of and Schedules 1 and 2 to the Regulations) and exempt income, which includes an amount in respect of housing costs (Regulations 9, 14, 15, 16 and 18 of and Schedule 3 to the Regulations). The higher the exempt income the smaller the maintenance assessment will be in respect of any particular level of assessable income. There is also a further mechanism (described by the Child Support Commissioner as a kind of long stop) securing that the non-resident parent's disposable income does not fall below the level of his or her protected income (para 6 of Schedule 1 to the Act and Regulations 11 and 12 of the Regulations).
42. I now come to some definitions in regulation 1(2) of the Regulations which are of central importance to the appeal (all applicable unless the context otherwise requires):
These definitions are closely similar to, but not identical with, definitions of the same expressions in the Social Security Contributions and Benefits Act 1992, section 137(1).
43. Paragraph 6 of Schedule 1 to the 1991 Act provides as follows:
44. Regulation 11 (made, the Child Support Commissioner observed, under regulation 6(5)) deals with protected income. Under Regulation 11(1)(a) it is material whether or not the non-resident parent has a partner. Under regulation 11(1)(b) housing costs come into the calculation of protected income. Under regulation 11(1)(g) it is material whether there is a child who is a member of the family non-resident parent.
45. Regulation 15 is one of the regulations dealing with housing costs. Regulation 15(3), so far as now relevant, provides as follows:
Schedule 3 of the Regulations also relates to housing costs. Paragraph 4, so far as now relevant, provides as follows:
46. It is common ground that if Ms M had been living with a man (whether or not she was married to him) her liability to pay child support maintenance would have been lower, for two reasons.
(1) Her exempt income and her protected income would have taken into account the whole of the household's housing costs (instead of only half of those costs).
(2) Her disposable income (and hence her protected income) would have been calculated on the basis that she had a partner and (as it appears from para 11 of the Child Support Commissioner's decision, though the facts are not clear) that the partner had a child who was a member of the family.
The financial difference for Ms M, in round figures, was as follows (the exact figures are in the agreed statement of facts and issues). Her children's maintenance requirement was assessed at about £105 a week. Her net income was assessed at about £330 a week. From this was deducted exempt income of £180 (including housing costs of about £90) so as to reach an assessable income of about £150 a week. The maintenance payable was assessed at about £47 a week. Had the whole of the housing costs been taken into account, it would have been only about £14 a week. In the event, after Ms M had been successful in her appeal, her ex-husband applied for a discretionary adjustment under section 29F of the 1991 Act (as inserted by the Child Support Act 1995). The effect of this adjustment was to reduce the disparity to a negligible sum. But the parties agreed that this should be disregarded in order to enable the point of principle to be determined on further appeal.
47. Mr Sales (for the appellant Secretary of State) produced detailed examples to show that there could be situations in which a non-resident parent who was one of a same-sex couple would do better financially if the couple were treated, not as a family unit, but as two individuals. This was part of his general submission that the CSA system is inextricably bound up with the wider social security system, and that it depends entirely on circumstances, which may vary from time to time, whether two people living together are better or worse off if treated as a single family unit rather than as two individuals. Ms Monaghan (for the respondent Ms M) did not directly challenge the examples but submitted that there was no room for a "swings and roundabouts" approach if (as she contended) there was a clear case of discrimination offending against the European Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention") as incorporated into domestic law by the Human Rights Act 1998 ("the 1998 Act").
The respondent's Human Rights Act challenge
48. The most relevant provisions of the 1998 Act are sections 3 and 6, which (so far as now relevant) provide as follows:
6. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(6) 'An act' includes a failure to act but does not include a failure to
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order."
49. The relevant Convention rights are those in articles 8 and 14 of the Convention, and article 1 of the First Protocol: ("article 1 FP"):
50. Ms M's primary case was and is that in order to avoid a breach of article 14 in conjunction with article 8, or in conjunction with article 1 FP, the definitions in regulation 1(2) of the Regulations should be read and given effect, under section 3 of the 1998 Act, so as to treat her and her same-sex partner as an unmarried couple, and her partner's child as a member of the family. Her secondary case, if she fails on section 3, was and is that she should have a remedy under section 6 of the 1998 Act for a breach of her Convention rights under the same combination of articles.
The course of the litigation
51. The relevant assessment was made by the Secretary of State on 12 September 2001, to take effect from 13 August 2001. Ms M asked for a review but the assessment was maintained. She then appealed to the unified appeal tribunal ("the Tribunal") which held a hearing on 8 November 2002. At the appeal hearing Ms M had assistance both from the Citizens Advice Bureaux and from Liberty, and her advisers produced a bundle of authorities including the decision of the Court of Appeal in Ghaidan v Godin-Mendoza  EWCA Civ 1533  Ch 380, even though it had been handed down only three days before. The Secretary of State's representative seems to have been less well prepared. The Tribunal allowed her appeal, giving brief written reasons on 11 November and extended reasons issued to the parties on 20 December 2002. The Tribunal (Chairman J A Priest) carefully addressed all the issues and concluded that on a literal interpretation of the Regulations there would be unjustifiable discrimination amounting to a breach under both limbs (that is article 14 in conjunction with article 8 and in conjunction with article 1 FP). Relying on section 6 of the Interpretation Act 1978 the Tribunal felt able to read the definition of "unmarried couple" as "a man or a woman and a woman or a man who are not married to each other but are living together as if they were husband and wife."
52. The Secretary of State appealed to the Child Support Commissioner (Mr Edward Jacobs). He held an oral hearing on 11 September 2003 with counsel instructed on both sides (at the same time he heard a housing benefit appeal, brought by Ms Cynthia Langley, which raised a similar point). In a written decision dated 1 October 2003 the Commissioner ruled that the decision of the Tribunal was not wrong in law. However he did not accept Ms M's argument on article 14 in conjunction with article 1 FP. Moreover his preferred route through section 3 of the 1998 Act was, not the Interpretation Act 1978, but the introductory rubric to Regulation 1(2), "unless the context otherwise requires." He gave leave to appeal to the Court of Appeal both to the Secretary of State and to Ms Langley (who was not successful before him).
53. The Court of Appeal (Kennedy, Sedley and Neuberger LJJ) heard the two appeals together in July 2004 and handed down a single set of judgments on 15 October 2004. The Court dismissed the Secretary of State's appeal, but Kennedy LJ dissented and Sedley and Neuberger LJJ differed to some extent in their reasoning. Sedley LJ (who gave the first judgment) asked himself whether Ms M's claim was within the ambit of a Convention right. At paras 31 to 51 he considered article 8 in detail under three heads: (i) Ms M's former family relationship; (ii) Ms M's present relationship; and (iii) Ms M's private life. He rejected the first of these approaches. He accepted the second, expressing his conclusion as follows (para 49):
Sedley LJ found it unnecessary to express a definite view on the third approach to article 8, that is respect for private life, but he expressed some doubt about it (paras 50 and 51). He also found it unnecessary (paras 52 to 58) to decide whether article 1 FP was engaged, but here too he expressed considerable doubt about that aspect of Ms M's claim. He concluded that section 3 of the 1998 Act enabled the problem of the definitions to be overcome, not by either of the methods adopted below but (para 86) "by simply disapplyingin effect deletingthe definition of 'unmarried couple' in regulation 1(2)."
54. Neuberger LJ agreed with Sedley LJ in rejecting the first approach (former family) to article 8, and (going beyond Sedley LJ's doubts) he also rejected the third approach (private life). He differed from Sedley LJ as to article 1 FP, regarding it as "an almost paradigm case for invoking the article" (para 107). Finally he considered the approach to article 8 based on Ms M's present relationship and agreed with Sedley LJ's conclusion, expressing his conclusion as follows (para 133):