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Then the courts scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact. PRE |
(para 3) As was pointed out in AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42; [2008] 1 WLR 1434, there are few Strasbourg cases which have been decided on the basis that the situations are not analogous, rather than on the basis that the difference was justifiable. PRE |
Often the two cannot be disentangled. PRE |
However, in Shackell v United Kingdom (Application No 45851/99, decision of 27 April 2000), the European Court of Human Rights declared inadmissible a complaint that denying widows benefits to unmarried surviving partners discriminated against the survivor and her children on the ground of her unmarried status and the ... |
The court accepted that this fell within the ambit of A1P1, so found it unnecessary to consider whether it also fell within the ambit of article 8. PRE |
However, relying on the Commissions view in Lindsay v United Kingdom (1987) 9 EHRR CD 555, that marriage is different from cohabitation, it held that the applicants situation was not comparable to that of a widow, although it also went on to hold that in any event the difference in treatment was justified, and hence by... |
In Burden v United Kingdom (2008) 47 EHRR 38 the Grand Chamber agreed with Shackell that marriage conferred a special status, but that was for the purpose of holding that sisters who had lived together all their adult lives were not in an analogous situation to married couples or civil partners for the purpose of inher... |
It is always necessary to look at the question of comparability in the context of the measure in question and its purpose, in order to ask whether there is such an obvious difference between the two persons that they are not in an analogous situation. Ratio |
The factors linking the claim to article 8 are also relevant to this question. Ratio |
It was for this reason that Treacy J was able to distinguish between Ms McLaughlins claim for the bereavement payment and her claim for widowed parents allowance. Ratio |
In the case of the former, he held that the lack of a public contract between Ms McLaughlin and Mr Adams meant that her situation was not comparable with that of a widow and her claim must fail (paras 66, 67). Ratio |
That decision has not been appealed. Ratio |
In the case of the latter, he held that the relevant facet of the relationship was not their public commitment but the co-raising of children. Ratio |
For that purpose marriage and cohabitation were analogous (para 68). Ratio |
In my view, that analysis is correct. Ratio |
Widowed parents allowance is only paid because the survivor is responsible for the care of children who were at the date of death the responsibility of one or both of them. Ratio |
Its purpose must be to benefit the children. Ratio |
The situation of the children is thus an essential part of the comparison. Ratio |
And that situation is the same whether or not the couple were married to one another. Ratio |
It makes no difference to the children. Ratio |
But had the couple been married, their treatment would be very different: their household would have significantly more to live on while their carer is in work. Ratio |
I cannot regard Shackell as conclusively against the conclusion that for this purpose the situations are analogous. Ratio |
Unlike Treacy J, the court did not examine the purpose of each benefit separately and ask whether they should be distinguished when it came to the justification for excluding unmarried parents and their children. Ratio |
It is also worth noting that in Sahin v Germany [2003] 2 FLR 671, the Grand Chamber concluded that, because children of married and unmarried parents should not be treated differently, neither should the unmarried parents - in that case an unmarried father for the purpose of contact with his children. PRE |
It is also instructive that in Yiit v Turkey (2011) 53 EHRR 25, the Grand Chamber was faced with a difference in treatment for the purpose of survivors benefits between people who had only religious marriages and people who had civil marriages. PRE |
The court began its discussion by pointing out that According to the courts settled case law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (para 67, citing DH v Czech Republic (2007) 47 EHRR 3, para 175). PRE |
It noted the Governments argument that civil and religious marriages were not similar for this purpose (para 75). PRE |
But it did not answer this question directly. PRE |
Rather, it considered whether religious marriage was a status within the meaning of article 14 and concluded that it was (paras 79, 80). PRE |
It then went straight on to consider whether the difference in treatment was justified, thus implying that the situations were relevantly similar, and held that it was (paras 82, 87). PRE |
Notably, Yiit involved only the mother. Ratio |
It did not involve any of her children, who were entitled to bereavement benefits in their own right. Ratio |
As shown by the helpful intervention of the National Childrens Bureau, which hosts the Childhood Bereavement Network, in the great majority of Council of Europe states children of the deceased are directly eligible for bereavement benefits up to a certain age. Ratio |
The United Kingdom is unusual in channelling benefits for children through their parents. Ratio |
Other status? Ratio |
It is well established both in Strasbourg and domestically that not being married can be a status just as being married can be. Ratio |
In Yiit v Turkey, for example, the Grand Chamber held that the absence of a marriage tie between two parents is one of the aspects of personal status which may be a source of discrimination prohibited by article 14 (para 79). Ratio |
In In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] 1 AC 173, the House of Lords held that being unmarried was a status for the purpose of deciding whether their inability to adopt was unjustified discrimination under article 14. Ratio |
Justification? Ratio |
It follows, therefore, that the situation in this case is sufficiently comparable to that of a widow or widower with children for the difference in treatment based on the lack of a marriage tie to require justification. Ratio |
This in turn depends upon whether it pursues a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised: see, eg, Yiit v Turkey, para 67, citing Larkos v Cyprus (1999) 30 EHRR 597, para 29). Ratio |
Further, to quote Yiit again, at para 70: The contracting states enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. Ratio |
The margin of appreciation is the latitude which the Strasbourg court will allow to member states, which is wider in some contexts and narrower in others. Ratio |
As the Grand Chamber explained, in a much-quoted passage in Stec v United Kingdom (2006) 43 EHRR 47, para 52: The scope of this margin will vary according to the circumstances, the subject matter and the background. Ratio |
As a general rule, very weighty reasons would have to be put forward before the court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. Ratio |
On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Ratio |
Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislatures policy choice unless it is manifestly w... |
In Willis v United Kingdom, although it concerned social security benefits where normally a wide measure would be allowed, the court held, at para 39, that very weighty reasons were required to justify a difference of treatment based exclusively on the ground of sex, and no such reasons existed. Ratio |
On the other hand, in Stec, which also concerned the benefits system, although the difference in treatment was based on sex, it was inextricably linked to the difference in retirement ages between men and women, which had historically been justified. Ratio |
It was a matter for member states to determine when and how to phase that out. Ratio |
Strictly speaking, the margin of appreciation has no application in domestic law. Ratio |
Nevertheless, when considering whether a measure does fall within the margin, it is necessary to consider what test would be applied in Strasbourg - that is why the manifestly without reasonable foundation test has generally been applied domestically in benefit cases. Ratio |
In cases which do fall within the margin which Strasbourg will allow to member states, the domestic courts will then have to consider which among the domestic institutions is most competent and appropriate to strike the necessary balance between the individual and the public interest. Ratio |
In a discrimination case such as In re G, it may be the courts. Ratio |
In other cases, it may be the Government or Parliament. Ratio |
The appellant, supported by the Child Poverty Action Group, argues that the difference in treatment is based, or largely based, on the birth status of the children, which is a suspect ground, requiring particularly careful scrutiny. ARG |
Thus, it is argued, the marriage condition has the effect that all, or almost all, the children adversely affected are illegitimate - ie born to parents who are not married to each other - and all, or almost all, the children positively affected will be legitimate - ie born to parents who are married to one another. AR... |
In fact, this will be so in a situation like this case, when the parents cohabited for a long period and all the children who fall within section 39A(3) are the children of both the deceased and the survivor. ARG |
It may very well not be so in other situations, where there are children of either the deceased or the survivor from other relationships, marital or non-marital. ARG |
It is therefore only the situation covered by section 39A(3)(a) which deserves particularly careful scrutiny. ARG |
The legitimate aim put forward by the respondent is to promote the institutions of marriage and civil partnership by conferring eligibility to claim only on the spouse or civil partner of the person who made the contributions. Ratio |
There is no doubt that the promotion of marriage, and now civil partnership, is a legitimate aim: this was the reason why the denial of widows benefits to an unmarried partner was held justified in Shackell; and why the preference given to civil over religious marriage was held justified in Yiit. Ratio |
The mere existence of a legitimate aim is not enough: there has to be a rational connection between the aim pursued and the means employed. Ratio |
Although this is not spelled out in the Strasbourg case law, it follows from the fact that the measure must pursue a legitimate aim. Ratio |
Whether there is a rational connection between the aim in this case and the measure in question is more debateable. Ratio |
It seems doubtful in the extreme that any couple is prompted to marry - save perhaps when death is very near - by the prospect of bereavement benefits. Ratio |
But they are part of a (small) package of social security measures in which it pays to be married rather than to cohabit. Ratio |
Ms McLaughlin, like many cohabitants, complains that the social security system is happy to recognise their relationship for some purposes but not for this one. Ratio |
We have not gone into the detail of this. Ratio |
But the general picture is that unmarried cohabitants are treated as a couple for the purpose of means-tested benefits: they will get the benefits applicable to a couple rather than the benefits applicable to two single people. Ratio |
This may sometimes be to their advantage: the benefit cap is higher for couples and lone parents than it is for single adult households. Ratio |
But it is often to their disadvantage, as the system assumes that two can live together more cheaply than can two single households. Ratio |
The fact remains that the social security system does privilege marriage and civil partnership in a few ways: principally by permitting one partner to benefit from the contributions made by the other, not only for bereavement but also for retirement pension purposes. Ratio |
This, as it seems to me, is the nub of the matter. Ratio |
Where means-tested benefits are concerned, it is difficult indeed to see the justification for denying people and their children benefits, or paying them a lower rate of benefit, simply because the adults are not married to one another. Ratio |
Their needs, and more importantly their childrens needs, are the same. Ratio |
But we are concerned here with a non-means-tested benefit earned by way of the deceaseds contributions. Ratio |
And the allowance is a valuable addition to the household income if the survivor is in work. Ratio |
Is it a proportionate means of achieving the legitimate aim of privileging marriage to deny Ms McLaughlin and her children the benefit of Mr Adams contributions because they were not married to one another? Ratio |
In my view, the answer to that question is manifestly no, at least on the facts of this case. Ratio |
The allowance exists because of the responsibilities of the deceased and the survivor towards their children. Ratio |
Those responsibilities are the same whether or not they are married to or in a civil partnership with one another. Ratio |
The purpose of the allowance is to diminish the financial loss caused to families with children by the death of a parent. Ratio |
That loss is the same whether or not the parents are married to or in a civil partnership with one another. Ratio |
That view is reinforced by the international obligations to which the United Kingdom is party and which inform the interpretation of the guarantees contained in the ECHR even though they have not been directly incorporated into United Kingdom law: see eg ZH (Tanzania) v Secretary of State for the Home Department [2011]... |
Principal amongst these is article 3 of the United Nations Convention on the Rights of the Child (UNCRC), which states that in all actions concerning children the best interests of the child shall be a primary consideration. Ratio |
Given the direct link with children, there cannot be much doubt that the provision of widowed parents allowance is an action concerning children. Ratio |
Article 26 requires State parties to recognise for every child the right to benefit from social security, including social insurance . Ratio |
Article 2 of the UNCRC requires state parties to respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the childs or his or her parents birth or other status. Ratio |
To like effect is article 10 of the International Covenant on Economic Social and Cultural Rights 1966. Ratio |
Denying children the benefit of social insurance simply because their parents were not married to one another is inconsistent with that obligation. Ratio |
It is also noteworthy that the great majority of member states of the Council of Europe provide survivors pensions directly to the children irrespective of birth status and in every other member state for which evidence is available, apart from Malta, where a pension is not paid directly to the child a pension can be p... |
This is evidence of a European consensus which is always relevant to the width of the margin of appreciation which Strasbourg will allow. Ratio |
This is not a difficult conclusion to reach on the facts of this case, where the couple lived together for many years, were recognised as doing so for other purposes by the Department for Communities and were parents of all the children involved. Ratio |
Their children should not suffer this disadvantage because their parents chose not to marry - as it happens for a commendable reason, but it might not always be so. Ratio |
This unjustified discrimination in the enjoyment of a Convention right is enough to ground a declaration of incompatibility under section 4(2) of the Human Rights Act. Ratio |
It does not follow that the operation of the exclusion of all unmarried couples will always be incompatible. Ratio |
It is not easy to imagine all the possible permutations of parentage which might result in an entitlement to widowed parents allowance. Ratio |
The recent introduction into the household of a child for whom only the surviving spouse is responsible is one example. Ratio |
Whether it would be disproportionate to deny that child the benefit of the deceaseds contributions would be a fact specific question. Ratio |
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