ECHR Rules On Sexual Orientation Discrimination

The European Court of Human Rights has recently delivered a strong judgment against sexual orientation discrimination, as well as clarifying the law on child maintenance, by ruling that the UK discriminated against a mother who was in a gay relationship by asking her to pay extra child maintenance.

In the case of JM v United Kingdom JM was the divorced mother of two children who primarily live with their father. Under the Child Support Act 1991 she, as the non-resident parent, was required to contribute towards the costs of maintaining her children. The amount she was required to pay in maintenance was calculated according to the rules laid out in regulations made under the Act. The regulations stipulated that account was taken of the income and outgoings of a heterosexual partner with whom a parent was living, but not of a homosexual partner. This resulted in JM paying £47 per week, as opposed to the £13 she would have had to pay if she were in a relationship with a man.

The Court of first instance found treating JM differently on the grounds of her sexuality breached Art 14 of the European Convention (prohibition of discrimination) taken together with Art 1 of the First Protocol (protection of property). The claim was upheld by the Appeals Tribunal, the Child Support Commissioner and the Court of Appeal, but was rejected by the House of Lords.

The European Court overturned the House of Lords’ decision stating "...where the complaint is one of discrimination on grounds of sexual orientation, the margin of appreciation of Contracting States is narrow. The State must be able to point to particularly convincing and weighty reasons to justify such a difference in treatment".

Elizabeth Bettes

Published on 19/10/2010