Under the Civil Partnership Act 2004 (CPA), only two people of the same sex may enter into a civil partnership. The Marriage (Same Sex Couples) Act 2013 (MSSCA) made marriage of same-sex couples lawful. The CPA was not repealed when the MSSCA was enacted. Consequently, same-sex couples wishing to formalise their relationship have a choice as to whether to enter into a civil partnership or to marry. This choice is not available to different-sex couples. The appellants are a different-sex couple in a committed long-term relationship, which they wish to formalise. They have genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They wish instead to enter into a civil partnership, which they consider would reflect their values and give due recognition to the equal nature of their relationship. They sought judicial review of the respondent’s continuing decision not to make changes to the CPA to allow different-sex couples to enter into civil partnerships.
The issue was whether the bar on different-sex couples entering into civil partnerships breaches the appellants’ rights under article 14 (the prohibition on discrimination) together with article 8 (the right to respect for private life) of the European Convention on Human Rights (ECHR). The High Court and Court of Appeal dismissed their claim.
It is now accepted by the respondent that there is an inequality of treatment between same-sex and heterosexual couples, and that this inequality engages article 14 read in conjunction with article 8 of the ECHR. The respondent also accepts that the inequality therefore requires justification from the date it first began (ie. on the coming into force of the MSSCA). The principal issue before the Supreme Court was therefore whether justification of the inequality includes consideration of the period of time during which the respondent could investigate how best to eliminate the inequality or whether the justification must be directed exclusively to the very existence of the discrimination.
JUDGMENT
The Supreme Court allows the appeal. Lord Kerr gives the judgment with which all the other Justices agree.
REASONS FOR THE JUDGMENT
When Parliament enacted the MSSCA, it consciously decided not to abolish same-sex civil
partnerships or to extend them to different-sex couples, even though it was recognised at the time that this would bring about an inequality of treatment between same-sex partners and those of different sexes, and that this inequality would be based on the sexual orientation of the two groups. It was decided that further investigations were required, and the government concluded that it should not take a final decision on the future of civil partnerships until societal attitudes to them became clearer after same-sex marriages had taken root [7]. Government consultations since the introduction of the MSSCA have failed to produce a consensus as to how, or if, the legal position relating to civil partnerships should change. The respondent concluded that it was proportionate to obtain more data in order to decide whether there was a need to preserve civil partnerships [9].
The court rejects the respondent’s argument that European Court of Human Rights (ECtHR) case law requires a wide margin of appreciation in relation to the timing of legislative change to recognise different forms of relationship, and that a significant measure of discretion should be accorded to Parliament in its decision as to when the timing of legislative change in the field of civil partnerships should occur. Although a measure of latitude should be permitted to Parliament, the concept of a “margin of appreciation” as applied by the ECtHR has no application in domestic law – a national court must confront the interference with an ECHR right and decide whether it is justified [27-28]. In as much as there is a margin of discretion analogous to that applied by the ECtHR, in cases of unequal treatment on grounds of sexual orientation, the margin is narrow [32]. It is reasonable that the legislature should be allowed time to reflect on what should be done when dealing with an inequality that it has come to recognise due to evolving societal attitudes. By contrast, to create a situation of inequality and then ask for time – in this case several years – to determine how that inequality is to be cured is less obviously deserving of a margin of discretion. [36]
There is a well established four stage test to determine whether interference with a qualified ECHR right can be justified: (a) is the legislative objective (legitimate aim) sufficiently important to justify limiting a fundamental right; (b) are the measures which have been designed to meet it rationally connected to it; (c) are they no more than are necessary to accomplish it; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? [41].
To be legitimate, the aim must be intrinsically linked to the discriminatory treatment. In this case, it is not. Tolerance of discrimination while the respondent determines how best to remedy it cannot be characterised as a legitimate aim [42]. The government had to eliminate the inequality of treatment immediately when the MSSCA came into force. This could have been done either by abolishing civil partnerships or by instantaneously extending them to different-sex couples. If the government had chosen one of these options, it might have been theoretically possible to then conduct research which could have influenced its longer term decision as to what to do with civil partnerships. Taking time to evaluate whether to abolish or extend could never, however, amount to a legitimate aim for the continuance of the discrimination as it is not connected to the justification for discrimination [50].
Even if the interference with the appellants’ rights in this case could be regarded as a legitimate aim, a fair balance between their rights and the interests of the community has not been struck. The interests of the community in denying civil partnerships to different-sex couples who do not wish to marry are unspecified, whereas the consequences of this denial for such couples may be far-reaching. A couple may, for example, suffer serious fiscal disadvantage if one of them dies before their relationship is formalised. There is no end point in sight for the present inequality of treatment [52].
The court has discretion as to whether to make a declaration of incompatibility and must decide whether it is appropriate to do so in a particular case. It should be noted that a declaration of incompatibility does not oblige the government or Parliament to do anything, and in this case, the court should not feel reticent about making such a declaration. The court therefore makes a declaration that sections 1 and 3 of the CPA, to the extent that they preclude a different-sex couple from entering into a civil partnership, are incompatible with article 14 taken in conjunction with article 8 of the ECHR [54-62].
References in square brackets are to paragraphs in the judgment, which can be found here.
A brief summary of the essential family law news and cases from the last week:
NEWS Baker J rejects husband’s financial remedy claim 26 years after decree nisi
Case distinguished from Wyatt v Vince. Full story: Family Law Week. See A v B, below.
Cafcass chief executive Anthony Douglas to step down
Cafcass chief executive Anthony Douglas is to leave in March 2019 after more than 15 years with the organisation. Full story: Children & Young People Now.
Supreme Court to deliver judgment in civil partnership case on Wednesday, 27 June
Steinfeld judgment will consider bar on different-sex couples entering into civil partnerships. Full story: Family Law Week.
Care crisis: Family Drug and Alcohol Court (FDAC)
Sir James Munby, President of the Family Division has written the following for Family Law. Full story: Courts and Tribunals Judiciary.
Court of Appeal emphasises that time limit for care proceedings should be extended if necessary
Family Justice Council invited to draft authoritative guidance. Full story: Family Law Week. See P-S (Children), below.
Draft revised Practice Direction 27A – Family Proceedings: Court Bundles (Universal Practice to be applied in the High Court and Family Court)
This Practice Direction supplements FPR Part 27 and comes into force on 23 July 2018. Full story: Family Law.
CASES AB v CD & Ors [2018] EWHC 1590 (Fam) (13 April 2018)
Proceedings concerning two children born in 2010 as a result of a surrogacy arrangement, where a parental order was not available. Full report: Bailii.
S (A Child), Re [2018] EWCA Civ 1453 (21 June 2018)
Appeal by mother against summary dismissal of application under Hague Convention at the first directions hearing. Appeal allowed. Full report: Bailii.
A v B (No. 2) [2018] EWFC 45 (14 June 2018)
Application by former husband for financial remedies, following divorce in 1992. Application dismissed. Full report: Bailii.
P-J (A Girl), Re [2018] EWHC 1546 (Fam) (29 January 2018)
Application by parents for leave to apply to revoke placement order. Leave granted. Full report: Bailii.
CH v CT [2018] EWHC 1310 (Fam) (25 May 2018)
Appeal against a suspended committal order following the appellant's failure to comply with order requiring her to make her daughter available for contact. Appeal allowed. Full report: Bailii.
P-S (Children) [2018] EWCA Civ 1407 (18 June 2018)
Care orders made in respect of 2 children, under which they are living with their respective paternal grandparents. Appeal against refusal to make special guardianship orders in favour of paternal grandparents. Appeal allowed. Full report: Bailii.
To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.
A brief summary of the essential family law news and cases from the last week:
NEWS Legal system of child protection is in crisis, says senior judge
Sir Andrew McFarlane speaks out as review says austerity makes it hard for services to cope in England and Wales. Full story: The Guardian.
Early years cuts 'pushing more children into care' in England
Children’s commissioner says nearly half of budget is spent on 73,000 children in care system. Full story: The Guardian.
Mills v Mills appeal in the Supreme Court
Judgment now awaited in this much anticipated appeal. Full story: Family Law Week.
Adoption and care rates higher in some areas
Research obtained by the BBC and the Bureau of Investigative Journalism reveals significant variation in adoption rates across England. Full story: BBC News.
CASES Kelly v Pyres [2018] EWCA Civ 1368 (14 June 2018)
Appeal against finding that at the date of her divorce petition the applicant wife was domiciled in England and Wales. Appeal allowed. Full report: Bailii.
MK v RP (Hague Child Abduction Convention) [2018] EWHC 1475 (Fam) (12 June 2018)
Application by father for summary return of child to Israel. Return ordered. Full report: Bailii.
GM v Carmarthenshire County Council & Anor [2018] EWFC 36 (06 June 2018)
Mother's application to discharge care order made in 2016. Application granted. Full report: Bailii.
Gee v Gee & Anor [2018] EWHC 1393 (Ch) (11 June 2018)
Proprietary estoppel case concerning a family farm where the son claimed that his father had promised that he would inherit the lion's share of the farm. The claim was made out. Full report: Bailii, via Family Law Hub.
MT v OT [2018] EWHC 868 (Fam) (20 April 2018)
Hearing of four Children act Sch. 1 applications by mother and father. Full report: Bailii.
To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.
A brief summary of the essential family law news and cases from the last week:
NEWS Practice Guidance: Standard children and other orders
This Guidance brings to a close, at least for the time being, the Family Orders Project which I established and which has been driven forward with his usual tenacity and skill by Mr Justice Mostyn. Full story: Courts and Tribunals Judiciary.
Children’s Commissioner calls for protection of children’s rights post-Brexit
Ministers asked to reconsider withdrawal from EU’s Charter of Fundamental Rights. Full story: Family Law Week.
Revised Forms A, A1 and D50C released
Form A and Form A1 have been amended in discussion with members of the Financial Proceedings Working Party of the Family Procedure Rule Committee. Full story: Family Law.
CASES M-Y (Children), Re [2018] EWCA Civ 1306 (07 June 2018)
Appeals by parents from findings of fact, a final care order in respect of a 15 year old girl, and interim supervision orders in respect of 3 younger children. Full report: Bailii.
L (a child) Abduction Turkey Protective Measures under Hague 96 [2017] EWHC 3797 (Fam) (01 September 2017)
Application by father for summary return of child to turkey. Consideration of sufficiency of protective measures in Turkey under Hague 96. Full report: Bailii.
S & H-S (Children), Re [2018] EWCA Civ 1282 (06 June 2018)
Appeal by mother against care order, on the ground that the threshold criteria had not been met. Appeal dismissed. Guidance given on setting out court's findings on threshold. Full report: Bailii.
Thompson v Thompson [2018] EWHC 1338 (Ch) (01 June 2018)
The question in this case was whether a proprietory estoppel operated in favour of the claimant son such as to give him an interest in the family farm and, if so, what interest. The judge held that the son made out his case. Full report: Bailii, via Family Law Hub.
To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.
A worrying picture of court modernisation - Resolution's submission to the Public Accounts Committee's inquiry into the benefits of the court modernisation programme.
Making the right decisions for the children should be your first goal, says family charity
As the 2018 World Cup kick-off approaches, parents looking to divorce or separate are being advised by a specialist family charity they can easily avoid the extra time it takes to settle a separation in a family court.
“Wall-to-wall World Cup football will provoke arguments that prove the final straw for some severely strained relationships,” says Jane Robey, Chief Executive of National Family Mediation.
“There are huge delays at family courts, and when the courtroom settlement full-time whistle blows, nobody wins. You’ll be waiting for a settlement that usually suits neither parent nor children.
“You can avoid extra time by finding a professional mediator who will help you both agree arrangements for your finances, family and future, away from the heat of the court.
“Making the right decisions for the children has to be your first goal. Mediation is four times quicker than settling a divorce through a court, and it’s cost-effective and much less stressful too.
“The scale of the issue is such that you could fill Moscow’s Luzhniki Stadium, the venue for the World Cup Final, almost twice over with under-16s in England and Wales who are newly affected by divorce each and every year.
“To find a professional expert mediator in your area call 0300 4000 636 or go to nfm.org.uk/local.“
Family mediation is a voluntary and confidential process which helps people reach joint decisions without use of court. It does not try to keep people together but offers a safe, neutral place where couples no longer in a relationship can meet with a trained mediator to work out plans for the future.
A brief summary of the essential family law news and cases from the last week:
NEWS We should applaud the end of the nuclear family, says top judge
Britain should "welcome and applaud" the collapse of the nuclear family, the most senior family judge in England and Wales has said. Full story: The Telegraph.
Mother denied chance to take her case to 'court of public opinion'
Family Division president Sir James Munby, who has long argued for allowing the ‘glare of publicity’ in to family courts, says some cases should not be debated under the public gaze, as he denied a mother the chance to take her case to the 'court of public opinion'. Full article: Law Society Gazette. See G (A Child), below.
Domestic abusers still able to cross-examine victims in court
Survey finds 24% of survivors have faced ordeal in year since government promised to end it. Full story: The Guardian.
CASES G (A Child : transparency in the family courts) [2018] EWHC 1301 (Fam) (18 May 2018)
Judgment regarding applications concerning the publication of information relating to a judgment made in private law children proceedings in 2002. Full report: Bailii.
To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.
