Steinfeld & Anor v Secretary of State for Education, Court of Appeal - Civil Division, February 21, 2017, [2017] WLR(D) 123,[2017] EWCA Civ 81

Resolution Date:February 21, 2017
Issuing Organization:Civil Division
Actores:Steinfeld & Anor v Secretary of State for Education

Case No: C1/2016/0713

Neutral Citation Number: [2017] EWCA Civ 81



Queen's Bench Division (Administrative Court)

Andrews J

[2016] EWHC 128 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/02/2017

Before :





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Between :

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Karon Monaghan QC and Sarah Hannett (instructed by Deighton Pierce Glynn) for the Appellants

Dan Squires QC (instructed by the Government Legal Department) for the Respondent

Hearing dates : 02-03 November 2016

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background to this appeal

The bar on civil partnership for opposite-sex couples

  1. The Civil Partnership Act 2004 (``the CPA'') created the civil partnership (``CP''), which is a means whereby same-sex partners can obtain formal legal recognition of their relationship outside marriage. A CP has substantially the same legal incidents as marriage except for the name. More recently, the Marriage (Same Sex Couples) Act 2013 (``the 2013 Act'') has been passed which enables same-sex couples the alternative option of entering into marriage.

  2. There is, however, a bar (``the bar'') on opposite-sex couples entering into a CP (section 3(1)(a) of the CPA). So same-sex couples have two options for obtaining legal recognition of their relationship whereas opposite-sex couples have only one.

    The Government's position on the future of CPs

  3. Since same-sex marriage was introduced, the number of new CP formations has gone down, and the number of CP dissolutions has gone up. The government's position as explained by Mr Dan Squires QC, for the Secretary of State, is that:

    A decision has been taken by the Government, following two public consultations and debate in Parliament, not at this stage to seek to persuade Parliament to extend civil partnerships to opposite-sex couples, abolish them or phase them out. Instead it has decided to wait to see how extending marriage to same-sex couples (made possible by the [2013 Act]) impacts on civil partnerships before making a final decision as to their future.

    Consultations and statistics

  4. The Secretary of State has filed evidence about two recent public consultations concerning the future of civil partnerships, and provided us with evidence in the form of official statistics about the use of CPs since the 2013 Act came into force. I have summarised the key parts of this evidence in the Appendix to this judgment.

    Appellants' reasons for preferring CP to marriage

  5. The appellants, Rebecca Steinfeld and Charles Keidan, are a young couple in a committed long-term relationship. They wish to formalise their relationship, but they have deep-rooted and genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They consider that the status of civil partnership would reflect their values and give due recognition to the equal nature of their relationship. Ms Steinfeld and Mr Keidan in good faith consider that marriage does not reflect the way in which they understand their commitment to each other or wish their relationship to be seen. Ms Steinfeld states in her witness statement that it is very important to them to have a civil partnership as the legal framework within which to raise their child as a CP would give their child a stable environment in which to grow up. They want their child to see the relationship as one of total equality reflecting the equal independent contribution which both parties make. They also desire the financial benefits of marriage and civil partnership, for example the rights of inheritance and relief from inheritance tax on death. This would protect their child in the case of their premature death. Moreover, they want their relationship to have the public recognition that registration as a civil partnership would bring. A witness statement in support from Deborah Mann, on behalf of herself and her partner of seventeen years, puts the reason for wanting to enter in to a CP as follows:

    the term `civil partnership' reflects the pragmatism, respect, loyalty, friendship and teamwork that is at the core of our relationship, added to which the secular, un-solemnised process of forming a civil partnership suits us perfectly.

  6. There is another witness statement in support from Fiona Millar, who has been in a relationship with her partner for thirty-five years. She has three adult children. She states that she wants to enter a CP to gain the same protection under the law as married or civil partnered couples:

    We have chosen not to get married for thirty-five years on principle. I do consider marriage to be a patriarchal institution and unnecessary for me to feel either committed or secure in my relationship. ...I believe that many young cohabitees with children, where the property rights are not as clearly set out as they might be, are being left without the chance of protection at a time when their children are most vulnerable. The law should protect these families in the same way as it would protect families of same sex couples who opt for civil partnerships or indeed of married couples.

  7. According to the Office for National Statistics (``ONS''), there were some 3,172,000 opposite-sex cohabiting couple families in the UK in 2016. They were the fastest growing family type over the last 20 years, with couples possibly choosing cohabitation as an alternative or precursor to marriage (Families and Households in the UK: 2016). As to civil partnerships, there were some 47,000 civil partnerships in existence at the end of 2015 (as opposed to some 48,000 at the end of 2014). In the first five years following the introduction of CPs, some 79,000 CPs were formed, far exceeding the number (10-20,000) forecast in the regulatory impact assessment on the CPA (Civil Partnerships in the UK: 2013, ONS).

  8. On 1 October 2014, the appellants gave notice to the Chelsea Register Office (``the Office'') that they wished to enter a civil partnership. The Office replied that they were prevented from entering into a CP. In these proceedings, Ms Steinfeld and Mr Keidan have been given permission to seek (a) judicial review of the continuing decision of the Secretary of State not to put forward changes to the CPA, and (b) a declaration of incompatibility under the Human Rights Act 1998 in respect of section 3(1)(a) of the CPA. The real issue is whether and if so, how, the European Convention on Human Rights (``the Convention'') applies to the Secretary of State's position, as set out in paragraph 3 above.

    Relevant Convention rights

  9. The appellants rely on Article 14 taken with Article 8 of the Convention. These Articles provide:

    Article 14

    Prohibition of discrimination

    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.

    Article 8

    Right to respect for private and family life

  10. Everyone has the right to respect for his private and family life, his home and his correspondence.

  11. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

    Judgment of the High Court: Andrews J

  12. Andrews J heard the judicial review proceedings. The question before her was whether, following the 2013 Act, the bar violated the rights of the appellants under Article 14 taken with Article 8. In her thoughtful and comprehensive judgment of 29 January 2016, she dismissed the appellants' claim for judicial review. The judge did not have the statistical information for 2015, which has since become available and which I have summarised in paragraphs 8 to 12 of the Appendix to this judgment.

  13. In summary, Andrews J held that on the authorities the bar did not fall within the scope or (as it is often put) the ``ambit'' of Article 8. The appellants could marry and thus enter into a legal relationship according full protection to all the core values of Article 8. The judge concluded: ``This is not a case where [the appellants] cannot achieve formal state recognition of their relationship, with all the rights, benefits and protections that flow from such recognition: on the contrary it is open to them to obtain that recognition by getting married.'' (Judgment, paragraph 37). She also held that any interference with their private life was even more tenuous as there is no evidence that they were subjected to humiliation, derogatory treatment or any other lack of respect for their private lives (Judgment, paragraph 38). ``The only obstacle to [the appellants] obtaining the equivalent legal recognition of their status and the same rights and benefits as a same-sex couple is their conscience.'' (Judgment, paragraph 39). There was, she held, no indication in the cases from the European Court of Human Rights (``the Strasbourg Court'') that there was interference with the core values of Article 8 in these circumstances.

  14. Andrews J further held that, even if she was wrong about the ambit of Article 8, the Secretary of State was justified under Article 14 in maintaining the bar until more years' data was available on the formation and dissolution of CPs. This would put the Secretary of State in a better position to evaluate the impact of the 2013 Act on CPs before taking any legislative steps, and the appellants were not...

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