October 11, 2010
A recent case, J.M. v. the United Kingdom, startled our research team. The case concerns a British child support rule that is at first glance counter-intuitive. The rule, from the Child Support Act 1991, states that the parent who does not have the primary care of the children is required to pay child support. So far little news. However, the amount of this support is reduced when the absent parent enters into a new relationship. The rule made no distinction between married and unmarried couples, but took no account of same-sex relationships. In this post I will highlight why the Court’s ruling is problematic and, moreover, why the underlying rule is deeply disturbing.
What happened in this case was that a mother of two, J.M., divorced from her husband and left the family home. For the purposes of the UK’s child support legislation, her former husband became the parent with care of the children. The applicant, as the non-resident parent, was required to contribute financially to the cost of their upbringing. Since 1998 the applicant has been living with another woman in an intimate relationship. Her child maintenance obligation was assessed in September 2001 in accordance with the regulations that applied at that time. Because J.M. was in a same-sex relationship, and not in a different-sex relationship, she did not get the reduction in her child maintenance obligations.
J.M. complained that this constituted discrimination on the basis of sexual orientation. She was right, of course. The Court correctly applies the very weighty reasons-test and comes to the conclusion that the rule was discriminatory. Unfortunately, however, the majority of the Court shies away from applying art. 8. They decide the case under art. 1 Protocol 1 (protection of property). That way they avoid applying art. 8 and thus they did not have to decide whether J.M.’s lesbian relationship falls under the notion of “family life”. After the recent Schalk and Kopf v. Austria and P.B. and J.S. v. Austria decisions, where the Court came to the conclusion that same-sex couples can enjoy family life the same way as different-sex couples, this is remarkable. Judges Garlicki, Hirvelä and Vučinić regret this: “we should not have refrained from unequivocal confirmation that today, in 2010, the notion of family life can no longer be restricted to heterosexual couples alone.” One can only speculate that the majority of this Chamber disagrees with Schalk and Kopf.
The point that I want to emphasize is that one cannot understand this case without reference to gender stereotypes. The Court’s opinion is that the purpose of the regulation “is to avoid placing an excessive financial burden on the absent parent in their new circumstances” (par. 56). What the judges pass over is the presupposition to the rule in question. The rule is based on the assumption that with a divorce, the children stay with their mother and it is the father who pays child support. When the father enters into a new relationship with another woman, it is assumed he has to support his new partner and therefore a reduction in his child maintenance-obligations would be warranted.
It is, in effect, the old male/breadwinner-model that underlies the child maintenance rule. This is problematic, especially since the persons who are faced with the consequences are the children. Why would contingencies like whether one of their parents enters into a new relationship affect the child’s economic security and support? And how to change this flawed system? Obviously, the Court has to work within the confines of the case at hand and does the best it can do by granting formal equality to a parent in a same-sex relationship. I wonder though: what would the regulations concerning child maintenance look like if they were based on a more substantive notion of equality, namely the best interests of the child?