SECRETARY OF STATE FOR WORK AND PENSIONS V M

Secretary of State for Work and Pensions v M [2006] UKHL 11

Secretary of State for Work and Pensions v M [2006] UKHL 11

Background

This case concerned a mother, the respondent, of two children who spent the greater part of each week with their father, her former husband from whom she was divorced. As the non-resident parent, she was required to pay maintenance under the Child Support Act 1991. According to the rules applicable during the period to which the claim related, namely 2001 to 2002, the income and outgoings of a heterosexual partner living with the payer could be taken into account in calculating the payer's liability; however, the mother in this case was in a same-sex relationship, with the result that she was required to pay more towards the maintenance of her children than she would have had to pay if she were living with a heterosexual partner .

The mother claimed that her situation fell with the ambit or scope of Article 8 (Right to respect for private and family life) of, or Article 1 (Protection of property) of the First Protocol to, the European Convention for the Protection of Human Rights and Fundamental Freedoms (the 'Convention'), and thus she was discriminated against on the ground of sex, in violation of Article 14 of the Convention.

The mother succeeded at first instance, with a ruling that her housing costs were to be calculated on the basis that her same-sex partner was a member of her family: the tribunal reasoned that the Article 14 right to non-discrimination in respect of enjoyment of other Convention rights - here the Article 8 right to respect for private and family life - without unjustifiable discrimination would be violated unless the legislation were so read as to include same-sex couples in the concept of 'family' and 'partner'. This decision was upheld on appeal by the Child Support Commissioner, and by a majority of the Court of Appeal (Kennedy LJ dissenting). The Secretary of State appealed .

The principal issue before the House of Lords was whether the application to the mother of the maintenance formula contained in the child support rules fell within the ambit of Article 8, or Article 1 of the First Protocol, for the purposes of Article 14 of the Convention. Their Lordships reviewed in great detail the authorities relating to the relevant Articles, and also the changing attitudes, reflected both in society and in the law, towards same-sex relationships.

The Secretary of State relies on the decision of the House of Lords in Secretary of State for Work and Pensions v M [2006] UKHL 11, [2006] 2 AC 91 (also reported as R(CS) 4/06) (M). In that case the non-resident mother paid child support maintenance to the father of her two children, with whom they lived most of the time. The mother's new partner, with whom she now lived, was a woman. The method of calculation was such that the mother had to pay a ...