Child Support and the Human Rights Act 1998

The Human Rights Act provides a number of fundamental rights and freedoms that UK citizens are entitled to enjoy by law, unless those rights are expressly or implicitly taken away by law. For example, the right to liberty is qualified by the fact that a person’s liberty can be taken away by the state, such as through arrest or imprisonment. The important Article in the Human Rights Act for the purposes of child support is Article 8.

What Article 8 Means

Article 8 relates to the right that people should be entitled to a personal and family life, and provides protections from the State for someone’s home and correspondence. Article 8 freedoms are wide ranging, and incorporate a huge variety of a person’s existence. These include rights of transsexual people, the right to develop your own personality and, critically, the right to create relationships with others. As a result, a child has a right to have a relationship with his or her parents, siblings are entitled to know and see each other, and grandparents should be entitled to form relationships with their grandchildren.

Privacy

Although there is a right to private life in Article 8, this right of privacy is not absolute. The State is entitled to interfere if necessary, but this can only be under circumstances. These are:

• the interference must be lawful
• there must be a reason for the interference
• the interference must be necessary in a democratic society

In terms of the reasons for the interference, it must not be gratuitous – but must be carried out in pursuance of an ‘identified legitimate aim.’ Therefore an individual’s privacy rights can be invaded on the grounds of:

• national security, economic well-being of the country, or public safety
• to protect rights and freedoms of others
• to prevent crime or disorder
• to protect health or morals.

This means, therefore, that the interference of the Child Maintenance Service in a separated parent’s life is fully justified on the basis of one of the restrictions contained within Article 8. This is because the interference caused by the CMS is justified on the basis that it protects the rights of others (the child), as well as arguably protecting the health of the child because of the provision of a financial benefit.

How Is Article 8 Used?

The Human Rights Act is commonly misinterpreted. The Act applies only to public bodies, rather than individuals. That means, therefore, that if your ex-partner is refusing to allow you to see your child you cannot then sue your ex-partner under Article 8. That said, the court is recognised as a public body. Legal challenges can be brought in other ways and the court can then be asked to protect your Article 8 rights. It would not be possible, however, to bring a claim against a private individual solely on the basis of Article 8.

This concept sometimes causes confusion, especially since high profile celebrities often bring court cases on the basis of ‘privacy’ (which is a concept protected by Article 8.) These cases are usually to do with a newspaper publishing intimate photographs or details of a celebrity’s private life that they do not consider should be in the public domain. In these circumstances, the celebrity in question will often bring the court case on the basis of ‘breach of confidence’ and then ask the court to enforce their Article 8 privacy rights.