CASE OF J.M. v. THE UNITED KINGDOM
Violation of Art. 14+P1-1;Non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant is the divorced mother of two children, born in 1991 and 1993. Her children live mostly with their father (the “parent with care”) spending two and a half days per week with her (the “non-resident” parent). Since 1998, the applicant has lived with a woman in what was described during the domestic proceedings as a “close, loving and monogamous relationship characterised by long-term sexual intimacy”. She and her partner own the house they live in as joint tenants. They purchased the property with a joint mortgage, and have held a joint bank account since 2000. 6. The applicant is required to contribute to the cost of her children's upbringing in accordance with the applicable regulations on child maintenance (see paragraph 21 below). On 12 September 2001, the Secretary of State decided that the applicant's maintenance payment should be GBP 46.97 per week, with effect from the previous 13 August. The applicant disputed that decision on a number of grounds, including that it did not make full allowance for her housing costs. On 11 November 2001, the Secretary of State declined to revise his decision. On 18 February 2002, the maintenance assessment was reduced to GBP 12.67 per week, due to changed circumstances unrelated to the applicant's complaint of discrimination. Her complaint thus relates to the period that began on 13 August 2001 and ended on 18 February 2002. 7. The applicant appealed against the initial maintenance assessment. The Appeals Tribunal allowed the appeal on 8 November 2002. The Tribunal considered it appropriate to compare the applicant's situation to that of an individual who was part of a heterosexual couple (married or unmarried), and that there clearly was a difference in treatment in the determination of the child maintenance obligation. It held that the situation came within the ambit of Article 1 of Protocol No. 1, which was not confined to situations in which property was transferred to the State. The direct involvement of the Child Support Agency in the process and its powers of enforcement meant that the responsibility of the State was engaged. The Tribunal found that the Government had not advanced any specific explanation or justification for the difference in treatment, which it therefore held to be discriminatory. It further found that it was possible to provide a remedy to the applicant by re-interpreting the definition of an “unmarried couple” in the applicable regulations so that it included samesex couples. 8. The Secretary of State appealed against this decision to the Child Support Commissioner, who rejected the appeal on 1 October 2003. The Commissioner held that “a gay relationship can be a family for the purpose of [A]rticle 8”. He saw no reason, in the context of child support legislation, to distinguish 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. Accordingly, the applicant's situation was within the ambit of the right to respect for family life. He rejected, however, the applicant's argument that the situation also came within the ambit of Article 1 of Protocol No. 1. Turning to Article 14, the Commissioner found that, in the context of child support payments, the applicant's situation was analogous to that of an absent parent living with a heterosexual partner, who, all other things being equal, would have been required to pay around GBP 14 per week instead of almost GBP 47. He considered that the Government had not advanced any justification for treating the applicant differently and therefore ruled that the child support scheme violated the applicant's Convention right under Article 14 read in conjunction with Article 8. Concerning the remedy, he disagreed with the approach of the Appeals Tribunal. Instead, since the regulations defined the various terms used by the regulations “unless the context otherwise requires”, he considered that, with the entry into force of the Human Rights Act on 2 October 2000, the “context” now included the absent parent's Convention rights. Therefore, the definition of an unmarried couple (“a man and a woman who are not married to each other but are living together as husband and wife”) did not apply in this situation. 9. The Secretary of State appealed against this decision to the Court of Appeal. By a judgment given on 15 October 2005, that 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 decision of the European Court in Mata Estevez v. Spain (dec.), no. 56501/00, ECHR 2001VI as establishing that the question whether same-sex relationships fall within Article 8 is a matter of domestic law. Citing a number of domestic precedents which treated same-sex couples as no different from heterosexual couples in certain contexts, he considered that 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. He found that 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 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. 10. Lord Justice Neuberger held that the child support regulations did, in principle, come within the ambit of Article 8, since they were based on the relationship between the absent parent and his/her children. However, the applicant's complaint concerned a wholly different family unit, i.e. her relationship with her partner. He too rejected the argument that the situation came within the ambit of the applicant's private life, finding that this had not been interfered with. Regarding Article 1 of Protocol No. 1, he accepted that the situation came within the scope of that provision since a possession of the applicant's (money) was being taken away from her under rules that left her worse off than a person in a position identical to hers in all respects save for their sexual orientation. As for the applicant's argument that her relationship came within the concept of family life, he took the view that, the European Court having considered this issue to be within States' margin of appreciation, it was open to the domestic courts to decide the point for the United Kingdom. His conclusion was that, having regard to the relevant House of Lords case-law, same-sex relationships should be treated in the same way as heterosexual relationships for the purpose of Article 8. He further concluded that the relevant provision of the MASC regulations had been enacted out of respect for family life – in this case the relationship between the absent parent and his/her new partner. Accordingly, the applicant's situation came within the ambit of Article 8. He concurred with Lord Justice Sedley that the Government had not provided an adequate justification, and agreed with the proposed remedy. 11. Lord Justice Kennedy reviewed both domestic and Convention caselaw and concluded that the applicant could not rely on the words “family life” in Article 8 in order to say that the facts of her case fell within the ambit of that Article. Nor did the situation come within the ambit of the applicant's right to respect for her private life. Though her relationship with her partner was an aspect of her private life, the applicant had not been penalised on account of it. Her real complaint was that she was unable to take advantage of a benefit that was available to a category of absent parents since she did not come within that category. As regards Article 1 of Protocol No. 1, he found that this provision was not engaged. The child support scheme 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. 12. The decision of the Court of Appeal was appealed by the Secretary of State to the House of Lords which, in a judgment of 8 March 2006, allowed the appeal, by a majority of four to one. 13. Addressing the question whether the application of the relevant regulations to the applicant came within the ambit of Article 8 of the Convention or Article 1 of Protocol No. 1, Lord Walker (with whom Lord Bingham agreed) observed that: “[t]he Strasbourg case-law does not, and could not, spell out any simple bright-line test for determining how close must be the link between the alleged discrimination and the rights granted by the substantive article.” He rejected the contention that since the concept of respect for private and family life was so wide and multifaceted, any alleged act of discrimination would be within the ambit of Article 8. He considered that, in relation to Article 8, the Strasbourg case-law revealed a more nuanced approach, reflecting the unique feature of Article 8 – the duty of the State to accord respect. Some measures were so intrusive that they plainly failed to respect an individual's private life, whereas less serious interferences would not merely not breach Article 8, they would not fall within its ambit at all. He further noted that the case-law concerning alleged discrimination in relation to the family life limb of Article 8 had concerned measures very closely connected to family life. He was prepared to assume that the applicant, her new partner and their children from their previous marriages should be regarded as a family for the purposes of Article 8. He also accepted that the regulations, inasmuch as they sought to strike a fair balance between the demands arising out of the raising of children and the running of the new household, were intended in a general sort of way to be a positive measure promoting family life. However, the link between them and respect for the applicant's family life was too tenuous to bring the situation within the ambit of the family life limb of Article 8. The link to respect for the applicant's private life was even more remote, in his view. As regards Article 1 of Protocol No. 1, he considered that the obligation to pay maintenance was very different to expropriation and therefore did not come within the ambit of this provision. 14. Lord Walker then considered whether the difference in treatment in same-sex couples in such circumstances was discriminatory. He held that Parliament had acted with reasonable promptness and within its margin of appreciation in the complex and time-consuming process of drafting, adopting and giving effect to the Civil Partnership Act 2004. The United Kingdom may have only followed the lead given by other Member States of the Council of Europe, but it had not been so far behind as to go outside its margin of appreciation. While it could not be argued today that discrimination against homosexuals had ever been justifiable, he thought this a “deeply unrealistic” approach to the issue. For centuries, homosexual couples living together were regarded as quite different to married or unmarried heterosexual couples. Profound cultural changes took time. 15. Lord Bingham described the applicant's complaint about discrimination as “anachronistic”: “By that I mean that she is applying the standards of today to criticise a regime which when it was established represented the accepted values of our society, which has now been brought to an end because it no longer does so but which could not, with the support of the public, have been brought to an end very much earlier. ... If such a regime were to be established today, Ms M. could with good reason stigmatise the regime as unjustifiably discriminatory. But it is unrealistic to stigmatise as unjustifiably discriminatory a regime which, given the size of the overall task and the need to recruit the support of the public, could scarcely have been reformed sooner.” 16. Lord Nicholls took the view that, while this was not its primary purpose, the statutory scheme did demonstrate the respect of the United Kingdom for the non-resident parent's new family life by means of the statutory scheme. It could therefore be said that this feature of the scheme was one of the modalities of the exercise of the right to respect for family life. This would be sufficient to bring the situation within the ambit of Article 8. He then considered the position of same-sex couples. In certain contexts, domestic case-law had established that a same-sex couple was as much capable of constituting a family as a heterosexual couple. In the context of Article 8 of the Convention, however, the concept of “family life” could only have one proper interpretation for all of the Contracting States. The Strasbourg case-law did not yet recognise that the guarantee of respect for family life applied to same-sex relationships and there was no good reason for the courts of the United Kingdom to depart from that position. He rejected the argument that the situation came within the ambit of respect for private life. The statutory formulae set out to respect the new family life of an absent parent who had entered into a heterosexual relationship, and not the private life of each party to that relationship. The statutory scheme was therefore 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. He further observed that the applicant had not pointed to any significant impact on her lifestyle. As regards Article 1 of Protocol No.1, he found that the statutory scheme was far outside this provision's scope. The duty to pay child maintenance was very distant from the type of interference the provision was aimed at. While it was accordingly not necessary to consider the issue of justification, he indicated his agreement with the position of Lords Bingham and Walker. 17. For Lord Mance there were two critical issues: whether the applicant's same-sex relationship was to be regarded as family life for the purpose of Article 8; and whether the child support regime impinged sufficiently on that family life for it to be said to fall within its ambit. Regarding the latter issue, his view was that the regime did, “though only just”. The MASC regulations sought to avoid any unduly adverse impact on the absent parent's new relationship and to achieve a fair balance between it and the children's needs. As for the first issue, the European Court of Human Rights had made it clear in May 2001 that same-sex relationships did not fall within the scope of the right to respect for family life. As the applicant's appeal related to a period shortly after that decision (13 August 2001-18 February 2002), her relationship with her partner could not be regarded as a type of family life within the meaning of Article 8. He added that he had little doubt that the Strasbourg Court would see the position in 2006 as having changed very considerably, and that if the issue were to arise before it again, the applicant's relationship could very well be regarded as involving family life for the purpose of Article 8. Great change had taken place across Europe in the intervening time, of which any court would take most careful account. There was no basis for criticising the United Kingdom for delay either in reviewing the relevant laws or in moving to amend them in light of such review. Although from a moral viewpoint discrimination against same-sex couples had never been justified, it was the legal position that was at issue. Until quite recently neither the Strasbourg Court nor the domestic courts would have viewed such relationships as involving family life. It followed that discrimination between these and heterosexual couples did not contravene Article 14 taken with Article 8. In relation to the applicant's private life, he observed that the regulations were not directed at her private life. Any link between them would be as tenuous in the extreme. Regarding Article 1 of Protocol No. 1, he considered it artificial to view child support payments as a deprivation of the absent parent's possessions. The mere fact that there was a net adverse financial impact for the applicant was insufficient. While the scheme was undoubtedly introduced in pursuit of a legitimate social policy, there was no element of expropriation about it. The complaint did not fall within the ambit of Article 1, therefore Article 14 was not engaged. 18. Baroness Hale, dissenting, considered that the appeal should be rejected. She found that the child support scheme, which was one aspect of the State's support for family life, clearly fell within the ambit of the applicant's right to respect for her family life with her children. The scheme was the State's way of enforcing a parent's duty to support their children, which was an obligation in both private and public law. There were many ways that the operation of the scheme could impact upon that family life. It did not have to have so severe an impact as to breach Article 8, but she considered it clear that the scheme fell within the reach of the applicant's right to respect for family life with her children. She observed that if, for example, the scheme treated absent mothers differently to absent fathers, this would be sufficient to engage Article 14. The lack of respect manifested by the scheme for the applicant's relationship did not have to reach such a level of severity as to constitute a breach of Article 8 for Article 14 to come into play. Although the Convention case-law had not yet recognised the relationship between two adult homosexuals as a form of family life within the meaning of Article 8, in this case the applicant and her partner enjoyed family life when their children were with them, and this did not cease when they were apart from them. She further considered that the situation also came within the ambit of the applicant's right to respect for her private life. It was therefore unnecessary to inquire whether Article 1 of Protocol No. 1 was engaged. 19. The only justification offered for the difference in treatment was the historical discrimination between the two types of relationship by social security and child maintenance rules. It was now recognised that there was no objective justification. While it had been taken for granted that the protection of the institution of marriage could justify less favourable treatment of the unmarried, it still had to be shown that in order to achieve that aim it was necessary to exclude same-sex couples. This had not been shown. With the Civil Partnership Act, the United Kingdom had moved ahead of many other European States, but this was not an objective justification for not doing so sooner. Racial and sex discrimination had always been wrong, long before this was recognised in law. In the area of gender, the historical and systematic character of discrimination against women could justify some continuing small adjustments in their favour in the benefits system. But this could not apply to sexual orientation – it would mean relying on historical disadvantage and exclusion to justify continued disadvantage and exclusion of the excluded group. It was to be welcomed that Parliament had legislated in this area, but that did not make right what had been done before. She concluded that the applicant had suffered discrimination in the enjoyment of the Convention right to respect for private and family life, and approved the remedy suggested by the Appeals Tribunal. 20. The Child Support Act 1991 (“the 1991 Act”) introduced a system intended to improve the assessment, collection and enforcement of payments for the maintenance of children whose parents are living apart. Until 1 November 2008, the system was administered by the Child Support Agency (“the CSA”), which was part of the Department for Work and Pensions. All the relevant duties, powers and discretions were thus conferred on the Secretary of State responsible for this government department. The calculation of a parent's child maintenance obligation is determined by Section 11 of and Schedule 1 to the 1991 Act, and by the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 SI 1992/1815 (the “MASC regulations”), which have been subject to frequent and extensive amendment. In the domestic proceedings, the courts considered the regulations as they stood before 3 March 2003. 21. In the House of Lords, Lord Walker explained and cited the relevant provisions as follows: “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). 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): ''family' means— ... (a) a married or unmarried couple ... and any child or children living with them for whom at least one member of that couple has day to day care ... 'married couple' means a man and a woman who are married to each other and are members of the same household. 'partner' means— (a) in relation to a member of a married or unmarried couple who are living together, the other member of that couple . . . 'unmarried couple' means a man and a woman who are not married to each other but are living together as husband and wife.' 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). Paragraph 6 of Schedule 1 to the 1991 Act provides as follows: '(4) The amount which is to be taken for the purposes of this paragraph as an absent parent's disposable income shall be calculated, or estimated, in accordance with regulations made by the Secretary of State. (5) Regulations made under sub-paragraph (4) may, in particular, provide that, in such circumstances and to such extent as may be prescribed— (a) income of any child who is living in the same household with the absent parent; and (b) where the absent parent is living together in the same household with another adult of the opposite sex (regardless of whether or not they are married)income of that other adult, is to be treated as the absent parent's income for the purposes of calculating his disposable income.' 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 of the non-resident parent. Regulation 15 is one of the regulations dealing with housing costs. Regulation 15(3), so far as now relevant, provides as follows: 'Where a parent has eligible housing costs and another person who is not a member of his family is also liable to make payments in respect of the home, the amount of the parent's housing costs shall be his share of those costs ...' Schedule 3 of the Regulations also relates to housing costs. Paragraph 4, so far as now relevant, provides as follows: '(1) Subject to the following provisions of this paragraph the housing costs referred to in this Schedule shall be included as housing costs only where— ... (b) the parent or, if he is one of a family, he or a member of his family, is responsible for those costs ...' 22. The Government in their observations have also referred to the Child Support Departure Direction and Consequential Amendments Regulations 1996 (the “Departure Direction Regulations”), the relevant provision of which reads as follows: Partner's contribution to housing costs 27. A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Act where a partner of the non-applicant occupies the home with him and the Secretary of State considers that it is reasonable for that partner to contribute to the payment of the housing costs of the non-applicant. 23. Schedule 24 of the Civil Partnership Act 2004 amended paragraph 6(5)(b) of Schedule 1 of the 1991 Act as follows: "(b) where the absent parent— (i) is living together in the same household with another adult of the opposite sex (regardless of whether or not they are married), (ii) is living together in the same household with another adult of the same sex who is his civil partner, or (iii) is living together in the same household with another adult of the same sex as if they were civil partners, income of that other adult,".