M v Secretary of State for Work and Pensions

The central legal question was whether the child support scheme and attendant regulations, insofar as they treated a non-resident parent in a same-sex relationship differently from one in a heterosexual relationship, fell within the ambit of Convention rights such that article 14 (prohibition of discrimination) read with article 8 (right to respect for private and family life) or article 1 of the First Protocol (protection of possessions) was engaged. The House considered the Strasbourg formulation that article 14 is engaged where the subject-matter of the disadvantage "constitutes one of the modalities of the exercise of a right guaranteed" (or otherwise falls within its "ambit").

The majority concluded that, for the relevant period, the impugned features of the child support regime were at most tenuously linked to the values protected by article 8 or article 1 FP and that, in any event, the United Kingdom had a permissible margin of judgment in the timing and manner of legislative reform; the Civil Partnership Act 2004 and associated changes removed the practical disparity. A substantial minority (Baroness Hale) would have held that article 14 was engaged and that the pre‑amendment regulations amounted to unjustified discrimination on grounds of sexual orientation, remediable under section 3 of the Human Rights Act 1998 by reading the definitions so as to include same-sex partners.

Background and facts:

• Ms M, a non-resident parent, lived with a same-sex partner. Under the Child Support Act 1991 and the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 the calculation of her child support liability treated a cohabiting opposite-sex partner as part of a family unit for certain deductions (notably housing costs) but treated a same-sex partner as "not a member of the family". On the facts this produced a higher maintenance liability for Ms M than she would have had if her partner had been of the opposite sex.
• The Civil Partnership Act 2004 came into force on 5 December 2005 and altered the legal recognition of same-sex couples; the statutory landscape had by then changed.

Procedural posture:

• Ms M appealed an assessment to the Tribunal which allowed her appeal. The Child Support Commissioner upheld the Tribunal. The Secretary of State appealed to the Court of Appeal ([2004] EWCA Civ 1343) which dismissed the Secretary of State's appeal. The Secretary of State then appealed to the House of Lords.

Nature of the claim and issues:

• Ms M claimed discrimination contrary to article 14 read with article 8 and article 1 of the First Protocol. The principal issues framed by the House were (i) whether the regime (or the relevant parts of it) fell within the ambit of article 8 or article 1 FP for the purposes of article 14; (ii) if so, whether the difference in treatment was justified; and (iii) whether any incompatibility could be remedied by reading subordinate legislation in a Convention‑compliant way under section 3 of the Human Rights Act 1998 or by other remedies.

Court's reasoning (concise):

• The majority analysed Strasbourg jurisprudence on the concept of "ambit" and held that article 14 is engaged only where the impugned measure bears a sufficiently direct and weighty connection to the values protected by the substantive right; a merely tenuous or remote link is not enough.
• Applying that test, the majority (Lords Walker, Nicholls, Bingham and Mance) found that the particular calculations under the child support regime had at best a tenuous link to the family/private life protections of article 8 or to possessions under article 1 FP for the relevant period, and even where the link was arguable the State had a margin of appreciation and legitimate space to phase reform (with the Civil Partnership Act 2004 addressing the point). They therefore allowed the Secretary of State's appeal.
• A strong dissent (Baroness Hale) considered that the child support scheme was one of the "modalities" by which the State evinced respect for family life, that article 14 was engaged in conjunction with article 8, and that the differential treatment was not objectively justified; she would have read the Regulations compatibly under section 3 HRA to include same-sex partners.

Appeal allowed. The majority held that the discrimination complained of either did not fall within the ambit of article 8 or article 1 of the First Protocol so as to engage article 14 in the relevant way, or was a matter in respect of which the State had a permissible margin of judgment and which had been the subject of appropriate legislative reform (Civil Partnership Act 2004). A dissenting opinion would have found unjustified discrimination and preferred a section 3 HRA reading of the regulations.

Appeal to House of Lords from the Court of Appeal ([2004] EWCA Civ 1343). Prior steps: appeal before the Appeals Tribunal for Child Support (Tribunal) which allowed Ms M's appeal; decision upheld by the Child Support Commissioner; Court of Appeal dismissed the Secretary of State's appeal; House of Lords allowed the Secretary of State's appeal.