COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOCIAL SECURITY COMMISSIONERS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
SIR PETER GIBSON
| Sara Francis
|- and -
|The Secretary of State for Work and Pensions
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Daniel Kolinsky (instructed by Office of the Solicitor) for the Respondent
Crown Copyright ©
Sir Peter Gibson :
"(1) …a payment to meet maternity expenses (referred to in these Regulations as a "Sure Start Maternity Grant") shall be made only where –
(a) the claimant or the claimant's partner has, in respect of the date of the claim for a Sure Start Maternity Grant, been awarded either income support….. or child tax credit payable at a rate higher than the family element; and
(i) the claimant or, if the claimant is a member of a family, one of the family is pregnant or has given birth to a child or still-born child; or
(ii) the claimant or the claimant's partner or both of them have adopted a child not exceeding the age of twelve months at the date of the claim; or
(iii) the claimant and the claimant's spouse have been granted an order in respect of a child pursuant to section 30 of the Human Fertilisation and Embryology Act 1990 (parental orders: and
(i) the claimant or partner has received advice on health and welfare matters relating to the child from a health professional:
(c) the claim is made within the prescribed time for claiming a Sure Start Maternity Grant."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"An adoption order is an order giving parental responsibility for a child to the adopters, made on their application by an authorised court."
By s.12(3)(a) the making of an adoption order operates to extinguish the parental responsibility which any person has for the child immediately before the making of the order. S.39(1)(a) provides that an adopted child shall be treated in law, where the adopters are a married couple, as if he had been born as a child of the marriage, and by s.39(2) an adopted child shall be treated in law as if he were not the child of any person other than the adopters or adopter. It is clear that an adoption is an irrevocable act severing the legal ties between the natural parents and the child.
"(1) Where the court makes a residence order in favour of the father of a child it shall, if the father would not otherwise have parental responsibility for the child, also make an order under section 4 giving him that responsibility.
(2) Where the court make a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility for the child while the residence order remains in force."
• "in marriage an adoptive person is deemed to be within the prohibited degrees and is prevented from marrying his adoptive parent whereas a person would not be prohibited from marrying a person who had had a residence order in respect of them;
• in the case of nationality, British nationality may be acquired by a child under an adoption order made in a UK court (see section 1(5A) British Nationality Act 1981) whereas the making of a residence order cannot of itself result in a child gaining British nationality;
• any pension payable to a person's child will be payable to an adoptive child but not to a child in respect of whom the person had a resident order;
• in relation to the right of succession the child and the adoptive parent may have a claim on each other's estate whereas neither the child nor the non-parent with a parental responsibility will have any claim on the other's estate by way of being parent and child;
• an adoptive parent has the right to consent or refuse to consent to the child's adoption and the right to appoint a guardian for the child (see section 12(3) Children Act 1989) whereas a non-parent with a residence order would not have these rights;
• a person with a residence order may be restricted in their right to change the child's name and the right to remove the child from the jurisdiction whereas an adoptive parent will be unrestricted in exercising these rights."
"The purpose of [Maternity Grant] is to ensure that children have a positive start in life by providing help to low income mothers with the costs associated with a new baby. In March 2000 the Secretary of State for Social Security said 'We are tackling the causes of poverty, not only through education and housing policies, but through extra help such as the….. Maternity Grant for mothers with new babies…..' (Hansard Volume 347 column 44)."
"48 The list of grounds in article 14 is not exhaustive, and necessarily includes each of the specifically proscribed grounds as well as 'other status'. The European Court of Human Rights has interpreted 'other status' as meaning a personal characteristic: Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, 732-733, para 56….. On the other hand, the proscribed grounds in article 14 cannot be unlimited, otherwise the wording of article 14 referring to 'other status' beyond the well-established proscribed grounds, including things such as sex, race or colour, would be unnecessary. It would then preclude discrimination on any ground. That is plainly not the meaning of article 14.
49. It is, therefore, necessary to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic within the meaning of article 14."
"In principle, discrimination on any ground might be prohibited by the Article since the list of prohibited grounds are not exhaustive and the Strasbourg authorities have accepted a number of 'other statuses' as coming within the residual category including:
- sexual orientation;
- marital status;
- trade union status;
- military status;
- conscientious objection;
- professional status;
Again in Lester and Pannick, Human Rights Law and Practice (2nd ed.) para. 4.14.21, it is said:
"The ECt HR has tended to apply a liberal approach to the 'grounds' upon which discrimination is prohibited, preferring not to limit them or define them restrictively. The general reference to 'other status' allows for many types of discrimination to be considered. In some cases, the ECt HR has not even thought it necessary to define the grounds upon which a specific example of discrimination is upheld."
"Where an individual lives is in principle a matter of choice. So although it can be regarded as a personal characteristic it is not immutable."
Lord Justice Moore-Bick:
Lord Justice Auld:
I too would allow the appeal and would grant the declaration indicated by Sir Peter Gibson for the reasons that he has given.