Secretary of State for Work and Pensions (Appellant) v. M (Respondent)

Article 14 applies only where discriminatory treatment has a meaningful connection with a substantive Convention right. A tenuous link is insufficient. The strength, directness and practical consequences of the connection must be assessed against the values protected by the substantive right.

A child-maintenance calculation does not fall within article 8 merely because it reduces a parent's disposable income. The scheme must materially affect family or private life. Nor does enforcing a parent's pre-existing maintenance obligation engage article 1 of the First Protocol.

Where social attitudes and interconnected welfare legislation are evolving, the legislature may have a reasonable period for consultation and comprehensive reform before an existing distinction becomes unjustifiably discriminatory.

The respondent was a non-resident parent who lived with a same-sex partner. Under the Child Support Act 1991 and the pre-amendment maintenance regulations, her housing costs, disposable income and protected income were calculated as though she had no partner. Her maintenance liability was consequently higher than it would have been had she lived with an opposite-sex partner.

The appeal tribunal allowed her challenge. The Child Support Commissioner upheld that decision, and the Court of Appeal dismissed the Secretary of State's appeal by a majority: [2004] EWCA Civ 1343. The relevant law was subsequently reformed by the Civil Partnership Act 2004.

The central questions were whether the maintenance calculation fell within the ambit of article 8 or article 1 of the First Protocol for article 14 purposes; whether the difference in treatment was justified; and, if it was incompatible, whether section 3(1) of the Human Rights Act 1998 permitted a Convention-compatible interpretation.

1. Appeal allowed by a majority of four to one. Lord Walker delivered the leading speech, with which Lord Bingham agreed completely. Lord Nicholls and Lord Mance also allowed the appeal. The orders below were set aside, and the maintenance assessment was remitted to the tribunal for any necessary adjustment.

2. Per Lord Walker, with Lord Bingham agreeing, article 14 requires more than a tenuous link between the alleged discrimination and a substantive Convention right. Lord Nicholls formulated the inquiry as a value judgment: the more seriously and directly the measure impinges upon the values underlying the substantive right, the more readily it falls within that right's ambit. Lord Mance agreed that a tenuous connection was insufficient.

3. The majority concluded that the maintenance scheme did not fall within article 8. Per Lord Walker and Lord Bingham, the higher assessment did not materially affect the respondent's family life with her children, her relationship with her partner, or her private life. It altered her financial position but did not intrude upon the personal relationships and autonomy protected by article 8. Lord Nicholls reached the same conclusion because there was no significant adverse effect upon family or private life.

4. On the respondent's relationship with her same-sex partner, the majority's reasoning divided. Lord Walker assumed that the household could constitute a family but regarded the statutory connection as too tenuous. Lord Nicholls and Lord Mance considered that the autonomous Convention concept of family life, as understood during the relevant period, did not yet encompass an adult same-sex partnership. All four nevertheless agreed that article 14 was not engaged.

5. Per Lord Walker, Lord Bingham, Lord Nicholls and Lord Mance, the enforcement and quantification of a parent's pre-existing obligation to maintain a child was outside article 1 of the First Protocol. It was an allocation of private financial responsibility, not an expropriation or control of possessions for a public purpose.

6. Alternatively, the four-member majority considered the difference in treatment justified during the relevant period. The comprehensive reform achieved by the Civil Partnership Act 2004 required consultation, legislation and extensive administrative change. Parliament had acted within a permissible area of judgment and with reasonable promptness. The section 3(1) interpretative issue therefore did not arise.

7. Baroness Hale dissented. She considered the child-support scheme to be a form of state support for family life and therefore within article 8's ambit. In her view, continued disadvantage to an historically excluded group lacked a legitimate aim. She would have interpreted regulation 1(2) under section 3(1) of the Human Rights Act 1998 so that same-sex and opposite-sex couples were treated alike.

• House of Lords: By a majority of four to one, allowed the Secretary of State's appeal, set aside the orders below and remitted the maintenance assessment to the tribunal.
• Court of Appeal: By a majority, dismissed the Secretary of State's appeal from the Commissioner: [2004] EWCA Civ 1343. Kennedy LJ dissented.
• Child Support Commissioner: Upheld the tribunal's result, although on a different interpretative basis, and granted permission to appeal.
• Unified appeal tribunal: Allowed the respondent's appeal against the maintenance assessment and interpreted the regulations so as to treat her as having a partner and family.