• Robert Spicer

Human rights: declaration of incompatibility: widowed parents allowance: Supreme Court decision

HUMAN RIGHTS

Declaration of incompatibility

Widowed parent’s allowance

Case In re McLaughlin (2018) The Times, September 10, Supreme Court

Facts M and her partner had lived together for 23 years until the partner’s death. They had four children. They did not marry because he had promised his first wife that he would not remarry. He had made sufficient national insurance contributions so that M would be entitled to widowed parent’s allowance if she had been married to him. The widowed parent could only claim if she was married to, or civil partner of, the deceased. At first instance, a declaration of incompatibility was made. This decision was reversed by the Northern Ireland Court of Appeal. M appealed to the Supreme Court.

Decision 1. The provisions regarding the payment of widowed parent’s allowance were discriminatory and incompatible with the right to family life insofar as they precluded any entitlement to that allowance by a surviving unmarried partner of the deceased.

  1. The purpose of the allowance was to diminish the financial loss caused to families with children by the death of a parent. That loss was the same whether or not the parents were married to or in a civil partnership with one another.

  2. The children should not suffer disadvantage because their parents chose not to marry. That unjustified discrimination in the enjoyment of a Convention right was enough to ground s declaration of incompatibility.

  3. The fact that the law had changed was not a reason for refusing to make a declaration of incompatibility. The old law would remain relevant for deaths before March 2017 for a very long time,

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