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CHILD SUPPORT/HUMAN RIGHTS: M v Secretary of State for Work and Pensions [2006] UKHL 11

Date:20 MAR 2006

(House of Lords; Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Mance; 8 March 2006) [2006] 2 FLR 56

The non-resident parent was living with a same-sex partner. When the non-resident parent's child support payments were being calculated, the legislation required that contributions by the same-sex partner to the couple's joint mortgage were to be treated as reducing the parent's deductible housing costs. Had the partner been of the opposite sex, the same payments would have been treated as part of the parent's own mortgage payments. As a result of this difference in treatment, the non-resident parent was required to pay more in child support than her heterosexual counterpart. The non-resident parent argued that this was a clear case of discrimination under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention), Art 14 as read in conjunction with Art 8, and Art 1 of Protocol 1 to the European Convention.

The court considered that the method of calculation of the non-resident parent's maintenance assessment did not fall within the ambit of the right to respect for family relationship between the parent and her children. Similarly, the link between an increased child support liability and respect for private life was very tenuous indeed. It was within the UK's margin of appreciation whether to treat same-sex couples as a family unit or as two individuals. Baroness Hale delivered a dissenting judgment, considering that this was a case of unjustified discrimination in the enjoyment of the European Convention right to respect for private and family life.