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Judging children's rights and the benefit cap: R (SG and Others) v Secretary of State for Work and Pensions [2015] CFLQ 445

Date:2 DEC 2015

Keywords: Benefit cap – indirect discrimination – UNCRC – best interests – judicial diversity

In R (SG and Others) v Secretary of State for Work and Pensions the Supreme Court considered a human rights challenge to the subordinate legislation that implemented the benefit cap which, it was argued, constituted unlawful indirect discrimination because lone parent households would be most affected by the scheme, and the vast majority of lone parents are women. Central to the claim was the relevance of Article 3(1) of the United Nations Convention on the Rights of the Child 1989 (UNCRC): had the Secretary of State for Work and Pensions acted in breach of his duties to give primary consideration to the best interests of children and, if so, what was the legal relevance of this to the justification of the indirect discrimination against women? After setting out the facts, legal issues and decision, this commentary focuses on two of the significant aspects of the case: first Lord Kerr’s (dissenting) dicta that Article 3(1) UNCRC is directly enforceable in the UK; and second, the importance of judicial diversity in the context of children’s rights.

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