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12 NOV 2007

Jens M. Scherpe: Family and private life, ambits and pieces <i>M v Secretary of State for Work and Pensions</i>

Jens M. Scherpe, Fellow and University Lecturer in Law, Gonville and Caius College, Cambridge. In M v Secretary of State for Work and Pensions the House of Lords had to decide whether the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 constituted a breach of Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention). A mother claimed that the regulations unlawfully discriminated against her because of her sexual orientation, in that the regulations provided for differential treatment of opposite-sex and same-sex couples. It was not disputed that there was a differential treatment. The real question therefore was whether such differential treatment could be justified; it is the lack of justification which makes the discrimination objectionable. But the approach taken to this problem by the House of Lords did not focus on justification. It was mainly concerned with the 'ambit' of the rights.

This commentary considers the concepts of 'family life' and 'private life' as embodied in Article 8 of the European Convention and the way the issue of discrimination contrary to Article 14 is dealt with by English courts. One particular difficulty seems to be the 'ambit' of the Article 8 rights. The way issues are classified as falling within the 'ambit' of a European Convention Article by the House of Lords seems to defy the purpose of the European Convention and it is suggested that the focus on the ambit is not only unhelpful but also leading away from the real issue: whether a differential treatment can be justified. For the full article see Child and Family Law Quarterly, Vol 19, No 3, 2007.

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