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OUTER HOUSE, COURT OF SESSION
[2008] CSOH NUMBER4
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PD931/07
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OPINION OF LORD BRODIE
in the cause
PAUL McGIBBON
Pursuer;
against
GRAEME McALLISTER
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Milligan; Thorntons
Defender: Watson, Solicitor
Advocate; Simpson & Marwick
11 January 2008
Introduction
[1] On
7 July 2004 Mark Robert
Hardie ("the deceased") was a passenger in a car driven by the defender. As he drove round a bend the defender lost control
of the car. It left the road. As a result of this accident the deceased was
killed. He was 18 years of
age. The defender admits that the
accident was caused by his fault.
[2] The
sole pursuer in the action is Paul McGibbon. He sues for damages in terms of
section 1(4) of the Damages (Scotland)
Act 1976. He avers that he is the "de facto stepfather" of the deceased,
that he and the deceased were very close, that the pursuer had lived with the
deceased's mother as man and wife since 1989 and that the pursuer had accepted
the deceased as a child of the family and was accepted by the deceased as a
stepfather. The pursuer had lived with
the deceased for most of the deceased's life. In the course of argument, counsel for the
pursuer added the information that the pursuer had acted as father to the
deceased from when the deceased was 18 months old until the time of his
death.
[3] The
pursuer avers that there are no other persons with a title to sue the defender
in respect of the death of the deceased.
[4] The
action, which is one to which chapter 43 of the Rules of Court applies, called before me on Procedure Roll on 17 October
2007 for discussion as to whether, in respect of a death which occurred on
7 July 2004, the pursuer's averments disclosed a title to sue. Mr Milligan, Advocate, appeared for the
pursuer. Mr Watson, Solicitor
Advocate, appeared for the defender.
The statute and the issue arising from it
[5] It
is convenient, before going further, to say something about the Damages
(Scotland) Act 1976 and the effect of its progressive amendment by the
Administration of Justice Act 1982, the Law Reform (Parent and Child) Act 1986,
the Damages (Scotland) Act 1993, the Civil Partnership Act 2004 and the Family
Law (Scotland) Act 2006.
[6] The
date of commencement of the 1976 Act was 13 May 1976.
Its scheme was to provide that when a person dies in consequence of
personal injuries sustained by him as a result of an act or omission of another
person, then the responsible person should be liable to pay damages to any
relative of the deceased, being a relative within the meaning of
Schedule 1 to the Act. Provision
was made in terms of section 1(3) of the Act for liability to pay damages
for patrimonial loss to any person who was a relative of the deceased. Provision was made in terms of
section 1(4) of the Act for liability to pay damages in respect of
non-patrimonial loss suffered by a relative who was a member of the deceased's
immediate family. The word "relative" has
the meaning assigned to it by Schedule 1 to the Act. A relative who was a member of the deceased's
immediate family is a person who falls within one of the classes defined by
certain of the sub-paragraphs of paragraph 1 of Schedule 1.
[7] By
a process of incremental amendment the class of "relative" and the sub-class of
"relative who was a member of the deceased's immediate family", have been
enlarged to include persons who did not qualify under the statute as originally
enacted. As at 7 July 2004, which is the relevant date for claims
arising from the death of the deceased, Schedule 1 to the 1976 Act was in
the following terms:
"1. In this Act 'relative' in relation to a
deceased person includes -
(a) any person who
immediately before the deceased's death was the spouse of the deceased;
(aa) any person, not being the spouse of the
deceased, who was, immediately before the deceased's death, living with the
deceased as husband or wife;
(b) any person who was a
parent or child of the deceased;
(c) any person not falling
within paragraph (b) above who was accepted by the deceased as a child of his
family;
(d) any person who was an
ascendant or descendant (other than a parent or child) of the deceased;
(e) any person who was, or
was the issue of, a brother, sister, uncle or aunt of the deceased; and
(f) any person who, having
been a spouse of the deceased, had ceased to be so by virtue of a divorce;
but does not
include any other person.
2. In deducing any relationship for the
purposes of the foregoing paragraph -
(a) any relationship by
affinity shall be treated as a relationship by consanguinity; any relationship of the half blood shall be
treated as a relationship of the whole blood;
and the stepchild of any person shall be treated as his child; and
(b) section 1(1) of the Law
Reform (Parent and Child) (Scotland)
Act 1986 shall apply; and any reference (however expressed) in this Act to a
relative shall be construed accordingly."
[8] The
Act was again amended, with effect from 4 May
2006, by the Family Law (Scotland)
Act 2006. A number of additional
sub-paragraphs were added to Schedule 1.
One of these was sub-paragraph (ca) which is in these terms:
"any person not
falling within sub-paragraph (b) above who accepted the deceased as a child of
the person's family".
[9] In
the debate before me it was accepted that, on the pursuer's averments, there
could be no question but that he would have had title to sue by virtue of
sub-paragraph (ca) had the death of the deceased occurred subsequent to 4 May 2006. However, the amendment to the 1976 Act
effected by the Family Law (Scotland) Act 2006 is expressly provided not to
apply to deaths which occurred before 4 May 2006: Family Law (Scotland) Act 2006,
(Commencement, Transitional Provisions and Savings) Order 2006 SSI 2006/212, paragraph 8. The issue between the parties therefore came to
be whether the pursuer fell within sub-paragraph (b) of paragraph 1
of Schedule 1, in other words, whether the pursuer, on his averments, was a
"person who was a parent ... of the deceased".
Submissions of parties
Submissions
for the defender: first speech
[10] Mr Watson submitted that the pursuer, who was neither the
natural or adoptive father of the deceased nor married to the deceased's
mother, was not the deceased's "parent" in terms of the Act and, accordingly,
did not have title to sue in respect of the deceased's death.
[11] Mr Watson developed his argument in three chapters. In his first chapter he considered the terms
of the 1976 Act. In his second chapter
he considered the relevance of being "accepted as the child of a person's
family" and in his third chapter he considered whether the pursuer should be
treated as the "parent" of the deceased.
Mr Watson accepted that there might be said to be an anomaly in
that in terms of Schedule 1, prior to its amendment by the Family Law
(Scotland) Act 2006, a person who had been accepted by the deceased as a child
of his family had title to sue in respect of non-patrimonial loss whereas, so
he submitted, a person who had accepted the deceased as a child of his family
did not have title to sue. The anomaly had
been noticed by the Scottish Law Commission in its Report on Title to Sue for Non-Patrimonial Loss
(Scot Law Com No.187) at paragraph 2.22.
The anomaly has now been remedied by the insertion of sub-paragraph (ca)
into paragraph 1 of Schedule 1 by section 35 of the Family Law (Scotland)
Act 2006 but that amendment did not have retrospective effect (cf. Bell v Hay 1979 S.C. 237 at 239).
Parliament clearly could have provided that the amendment effected by
the 2006 Act should have retrospective effect but it had not chosen to do
so. Mr Watson turned to consider
the effect of sub-paragraph (b) of paragraph 1. Regard had to be had to the terms of
paragraph 2 of Schedule 1 which provided that the stepchild of any
person shall be treated as his child.
The deceased here was not the stepchild of the pursuer. The defining characteristic of the
stepparent/stepchild relationship is that the stepparent is married to the
natural parent of the stepchild. It is
clear from the averments that that was not the position in the present
case. In this connection Mr Watson
referred to the entry for "stepchild" in Stewart, Scottish Contemporary Judicial Dictionary of Words and Phrases and
to paragraph 2.38 of Scot Law Com No.187.
Mr Watson noted that the pursuer refers in his averments to
section 1(1) of the Law Reform (Parent and Child) (Scotland)
Act 1986. Section 1 of the 1986 Act
has been amended by section 21 of the 2006 Act. As appears from paragraph 4 of the commencement
order (SSI 2006/2120) the provisions of section 21 shall not apply in
relation to any proceedings which commenced before 4 May 2006.
However, the present proceedings were commenced subsequent to that date
and, accordingly, it is the amended text of section 1 of the 1986 Act
which applies. As amended, that section
provides that no person whose status is governed by Scots law shall be
illegitimate and accordingly the fact that a person's parents are not or have
not been married to each other shall be left out of account in determining that
person's legal status or establishing the legal relationship between the person
and any other person. However, so
submitted Mr Watson, that provision assists not at all because, in order
to have title to sue in terms of sub-paragraph (b) of paragraph 1 of
Schedule 1 to the 1976 Act, the pursuer must be the "parent" of the
deceased. To be a "parent" one must
either be a natural parent or, by virtue of paragraph 2 (a) of Schedule 1,
married to a natural parent or an adoptive parent. The unmarried cohabitee of a person's natural
parent, which is the situation of the pursuer, is not the parent of that person
and cannot be so regarded. Mr Watson
moved me to dismiss the action by reason of absence of title to sue on the part
of the pursuer.
Submissions
for the pursuer: first speech
[12] Mr Milligan accepted that to qualify for a claim for non-patrimonial
damages in terms of section 1(4) of the Damages (Scotland) Act 1976 (as
amended), the pursuer requires to be part of the deceased's "immediate family"
in terms of Schedule 1 of the Act, as that schedule stood as at the date
of the deceased's death. It was,
however, his submission that although the pursuer was not the natural father of
the deceased, he was, nevertheless, a "parent" of the deceased in terms of
paragraph 1(b) of that Schedule. Mr Milligan referred me to one of the
definitions of "parent" which is provided by the Oxford English Dictionary: "A
person who holds the position or exercises the functions of a parent; a
protector, guardian". That was precisely
the position held by the pursuer, who had acted as father to the deceased from
the age of 18 months to his death at 18 years. He had lived with the deceased for most of
the deceased's life. The extent of that
relationship would be a matter for proof before answer. To hold that the pursuer was not a parent of
the deceased would be to discriminate against him on the basis of his marital
status. That would be contrary to the
policy of the 1976 Act as a whole and, moreover, would be a contravention of
Articles 8 and 14 of the European Convention on Human Rights. The statute must be interpreted so as to give
effect to Convention obligations: Human
Rights Act 1998 section 3.
[13] In developing his submission, Mr Milligan reminded me that had
the pursuer been married to the deceased's mother at the time of the accident
then he would have been treated as the deceased's father on the basis of
affinity in terms of paragraph 2(a) of the Schedule. Accordingly the only basis on which his claim
was said to be barred was because of his marital status. Although the 1976 Act originally had only
allowed a right to those who were married, that right had gradually been
extended to cohabiting couples: paragraph
1(aa) of the Schedule which was introduced by the Administration of Justice Act
1982 and paragraph 2(b) which was introduced by the Law Reform (Parent and
Child) (Scotland) Act 1986. The 1982 Act
extended the right of action to persons living with the deceased as man and
wife at the time of the accident. The 1986
Act abolished the significance of a child being born out of wedlock. In the 1986 Act "parent" is there defined
non-exclusively as including natural parents, which implies that there are
other categories. Regard also must be
had to the evolution of social mores;
the concept of a "parent" is now wider than it was in 1976: cf. Telfer
v Kellock 2004 S.L.T. 1290 at 1294B
to F. By the time of the enactment of the
Damages (Scotland)
Act 1993 there was no valid distinction left between married couples and those who
were living together as man and wife. To
debar the pursuer's claim, when the deceased would have been able to claim in
respect of the pursuer's death in terms of paragraph 1(c) of the Schedule,
would create the "apparent anomaly" noted by commentators: see eg Maguire, Relatives' claims on death 2007 S.L.T.
(News) 43). There was no rational basis
for the distinction and such an interpretation should be avoided. In practice, the distinction has not been
maintained: Rankine and ors v Cairns [2005] CSOH 170. Nor should it be. However, if, contrary to his submission, the
court was inclined to interpret "parent" as it appeared in sub-paragraph (b) as
limited to natural parent, regard had to be had, so submitted Mr Milligan, to
what he described as the "human rights dimension" and, in particular, the
impact of section 3 of the Human Rights Act 1998. To discriminate against the pursuer on the
basis of his marital status would be contrary to Articles 8 and 14 of the
ECHR, given that if he had been married to his cohabitee, the pursuer would
have had a claim. Discrimination on the
grounds of gender or sexual orientation is not permissible and primary
legislation has to be read accordingly, even if that means ignoring the plain
meaning of the statute: Ghaidan v Ghodin-Mendoza [2004] 2 A.C.557, Telfer v
Kellock supra at 1293C to D, and Scot
Law Com No 187 paragraph 2.61. Equally,
it is not permissible to discriminate on the basis of marital status: Sahin v
Germany
(2003) 36 EHRR 43. Accordingly, the
court is bound to interpret "parent" sufficiently widely to avoid
discrimination on the basis of marital status.
There is no difficulty in doing that here. Mr Milligan concluded by submitting that at the
very worst for the pursuer, it cannot be said that he has no title to sue without
further inquiry into the nature and extent of his relationship with the
deceased. On that basis the action should
not be dismissed and a proof before answer should be allowed.
Submissions
for defender: second speech
[14] In a second speech Mr Watson began by focusing on what he
took to be the policy of the Act. That
policy was to provide an exclusionary list of relatives who, as members of the
immediate family of the deceased, were entitled to claim damages for
non-patrimonial loss in terms of section 1(4): Monteith
v Cape Insulation Ltd 1998 SC. 903 at
908C. Schedule 1 paragraph 2 made
specific provision for step-relationships but, on a proper construction, as at
the relevant date, the Schedule did not confer title to sue on someone in the
position of the pursuer. Turning to the
relevance of the Human Rights Act 1998, Mr Watson submitted that this was
not a situation analogous to that of a same sex couple as in Ghaidan or an unmarried natural father
as in Sahin. He referred to Baker, Human Rights Act 1998: A Practitioner's Guide at paragraph 6-30
where mention is made of relationships which might fall to be protected by
Article 8. Mr Watson submitted that
in considering the application of section 3 of the 1998 Act, regard should
be had to the facts that Parliament must be taken to have been aware of the
point in issue and to have been aware of the Human Rights Act. Nevertheless, when legislating in 2006 it did
not provide for retrospective effect for the amendment to the 1976 Act.
Submissions
for pursuer: second speech
[15] In the very brief second speech, Mr Milligan drew my
attention to the provisions of Article 8 of the European Convention of
Human Rights, which provide that a person is entitled to respect for his family
life. Making provision for recovery of a
non-pecuniary award of damages in respect of the death of a family member was
one way in which the state could demonstrate respect for family life.
Discussion
[16] I am concerned with a
question of statutory construction: what is to be taken to be meant by the word
"parent" when it is found in sub-paragraph (b) of paragraph 1 of Schedule 1 to
the Damages (Scotland) Act 1976, as it had been amended up to 7 July 2004,
with a view to determining whether the pursuer was, or might by evidence be
shown to be, the "parent" of the deceased.
[17] Section 3(1) of the Human Rights Act 1998 provides: "So far as
it is possible to do so, primary legislation and subordinate legislation must
be read and given effect in a way which is compatible with the Convention
rights." Since the commencement of the
1998 Act there therefore has always been a "human rights dimension" to
statutory construction. That said, it
appears convenient to take the exercise of construction in steps. First, to consider what is the "ordinary
reading" or "conventional interpretation" of the provision in question (cf Ghaidan v Godin-Mendoza [2004] 2AC 557, Lord Nicholls at 565A, Lord Rodger
at 594D). Second, at least if the matter
is put in issue, to consider whether the ordinary reading, if given effect,
would produce a result which would be incompatible with the human rights of
interested parties. Third, in the event
that the ordinary reading would, if given effect, be incompatible with the
Convention, to consider whether it is possible to read the provision in
question in a way which removes any incompatibility. If it is possible to give it such a reading
then that is the "true" meaning of the provision (cf Ghaidan v Godin-Mendoza supra Lord Rodger at 594H) and that is
the meaning which must be given effect. If it is not possible to read the provision in
a way that is Convention compatible then, if the court is one of those
identified in section 4 (5) of the 1998 Act, a declaration of incompatibility
may follow.
[18] Taking these steps in turn, the first question is what is the
ordinary reading of paragraph 1 (b) of Schedule 1 to the 1976 Act. In my
opinion this does not present real difficulty. A "parent" of a deceased is the deceased's
natural or adoptive father or mother or, having regard to paragraph 2 (a) of
Schedule 1, the deceased's stepfather or stepmother. The pursuer, on an ordinary reading or
conventional interpretation of the language of the paragraph is not the
deceased's parent and does not have title to sue in respect of the deceased's
death. Mr Milligan referred me to
definition c. of "parent" in the Oxford English Dictionary: "A person who holds the position or exercises
the functions of a parent; a protector, guardian". It is important to note the abbreviation "transf" which appears at the beginning
of that definition. That signifies that this
is a transferred meaning: it refers to someone who is not a parent in the
primary sense but who acts as if he or she were a parent. Mr Milligan submitted that by the time of the
enactment of the Damages (Scotland)
Act 1993 there was no valid distinction left between married couples and those
who were living together as man and wife. He also drew my attention to changing social mores and the fact that many couples
live together who are not married. He referred
to the opinion of Lady Smith in Telfer v Kellock supra where there is
recognition that the concept of what constitutes a family in modern society
need not conform to the conventional model.
It is true to say that in recent years the legislatures, both in
Westminster and Holyrood, have introduced a number of measures which have
tended to reduce the differences as between the consequences of, on the one
hand, being married and having children of that marriage, and, on the other,
living together and accepting the child or children of the other partner as the
child or children of the family constituted by the fact of cohabitation. That does not have the result that the fact
that a couple have married or entered
into a formal civil partnership falls to be ignored for the purpose of
determining parties' rights or that for every purpose the members of an
unmarried cohabiting couple are to be regarded as if they were married. Equally, it does not have the result that
anyone cohabiting with the natural parent of a child, becomes, by virtue of the
fact of cohabitation, the parent of that child. It is no doubt true that cohabitation and the
consequence that adults live in households with their partners' children have
become very common as social phenomena. I do not see that as having yet impacted on
the ordinary meaning to be attributed to the word "parent" or the way in which
a statutory provision which uses that word should conventionally be
interpreted.
[19] If I am correct in discerning what is the ordinary reading of
"parent" where it occurs in paragraph (c) of paragraph 1 of Schedule 1 to the
Act, I come to the second step mentioned above: consideration of the question
as to whether that meaning, if given effect, would have a result that was
incompatible with the pursuer's human rights? I have not found this question entirely
straightforward but I have come to answer it in the affirmative. What is in issue is the effect, in the
circumstances of the case, of the interrelationship between Articles 8 and
14 of the Convention. Article 8
confers on the pursuer a right to respect for his family life. While it can be said that by reason of Article 12
the Convention accords a privileged status to marriage, I would understand it
to be beyond dispute that the expression "family life" can properly be applied
to the relationships that arise as a result of less formal arrangements: Keegan v Ireland (1994) 18 EHRR 342 para 44, Kroon v Netherlands
(1994) 19 EHHR 263 para 30, X, Y and Z v United Kingdom (1997) 24 EHHR 143 para
36, Sahin v Germany supra para 34. On
the pursuer's averments I therefore have no difficulty in regarding the
relationship between him and the deceased as an aspect of the pursuer's family
life as that expression is used in Article 8 of the Convention. To that extent Article 8 is engaged. It
is true that Article 8 does not require that domestic law confer a right
of action for reparation in respect of the death of a family member (however
family membership is determined) or any other person with whom an individual has
resided on a long-term basis and that, accordingly, from the perspective of
Article 8, looked at in isolation, the mere fact that Scots law did not confer
on the pursuer a right of action in respect of the death of the deceased would not mean that his human rights were thereby
infringed. However, Article 8 must
be read together with Article 14. If the state makes legislative provision
which promotes respect for family life, "it must not be discriminatory. The provision must not draw a distinction on
grounds such as sex or sexual orientation without good reason": Ghaidan v Godin-Mendoza supra Lord
Nicholls at 565E. The "such as" ground
founded on here is marital status: the pursuer not having been married to the
deceased's natural mother. At para 17.98
of Clayton and Tomlinson, The Law of
Human Rights the authors list marital status as having been recognised by
the European Court of Human Rights as one of the prohibited grounds of
discrimination. I confess to not finding
that entirely clear from the cases there cited (although, without discussion,
the Court appears to have accepted marital status as a prohibited ground in a
case not cited at this paragraph of Clayton and Tomlinson: McMichael v United Kingdom
(1995) 20 EHHR 205). For marital status
to be a "such as" ground it must be regarded as analogous to the specified
grounds of sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property,
birth or other status. Speaking for
myself, I would have thought that there might be a question as to whether
marital status should fall to be regarded as a "such as" ground. There would seem to be force in the
observation by Baroness Hale that "[the] common thread running through the list
is that these are personal characteristics of the individual which he or she
either can do nothing about - such as race or sex - or should not be expected
to do anything about - such as religion or political opinion": Same Sex Relationships and the House of
Lords: One Step Forward and Two Steps Back?, 2007 Jur Rev 247. Marital status is something that individuals
can do something about. They can choose
to get married with the consequences that flow from that or they can choose not
to get married with the consequences that flow from that. I can see why individuals should not be
compelled to change their religious beliefs or political opinions. It is less clear to me that they should not be
required to get married if they wish to be treated in the way that married
people are treated. However, in Sahin v Germany the Court found a distinction as between the position of a
father of a child born out of wedlock whose relationship with the mother of the
child has broken down and that of a divorced father to be discriminatory and
therefore prohibited by Article 14. That is at least analogous with the
distinction that is said to be discriminatory here (and see also McMichael v United
Kingdom supra). Importantly, in the
course of his submissions Mr Watson did not dispute that giving effect to
what I consider to be the ordinary meaning of paragraph (c) would be to
discriminate against the pursuer (when comparing his position with that of a
deceased's stepfather) on the basis of marital status or that marital status was
a "such as" and therefore prohibited ground upon which to discriminate. Mr Watson pointed to Lord Penrose's characterisation,
in Monteith v Cape Insulation supra at 908C, of "the immediate family" of a deceased person for
the purposes of the 1976 Act as an artificially defined group. It therefore
perhaps should be unsurprising to find persons included or excluded from the
group on no very obvious logical basis. Mr Watson certainly made no attempt
to argue that there was any particular justification for excluding the partner
of a deceased's natural mother from the deceased's "immediate family" simply
because he was not married to the mother. I am accordingly prepared to accept that Mr Milligan
has identified a difference of treatment of the pursuer in comparison to other
persons in an analogous or relevantly similar situation, based on a prohibited
ground which is not is not reasonably and objectively justified and therefore
amounts to illegal discrimination, rather than permissible differentiation: cf
Clayton and Tomlinson supra at para
17.81.
[20] If then Mr Milligan's argument succeeds thus far, is the
Damages (Scotland) Act 1976, as amended, a legislative provision which promotes
respect for family life or, at least, is the discrimination of which Mr Milligan
complains in relation to a matter that is within the ambit of the rights
conferred by Article 8? I heard no very
detailed argument about this. Mr Milligan, on the one hand, asserted that
the discrimination he identified had no rational justification and contravened
the pursuer's Article 8 right to have his family life respected. He
referred to Ghaidan v Godin-Mendoza supra. Mr Watson, on the other, submitted that Ghaidan and Sahin could be distinguished on their facts and emphasised that
Parliament had to be taken to be acting deliberately and with full knowledge of
the consequences when it legislated as it had done.
[21] I agree that Ghaidan
and Sahin are distinguishable from
the present case, Ghaidan very
clearly so as it relates specifically to the right of respect for the home
rather than for family life. The nearest
to a case in which title to sue in respect of the death of a family member has
been the subject of consideration as coming within the ambit of the protection afforded
by the Convention to which I was referred, was Telfer v Kellock supra,
where, because the date of death of the deceased preceded the commencement date
of the Human Rights Act, Lady Smith did not require to address the
question. I remain somewhat troubled by
the feature that the pursuer here relies on Article 8 in relation to a
matter that can only arise once any prospect of his enjoying family life with
the deceased is no longer possible because of the deceased's untimely death. This was not, however, a point taken by Mr Watson.
I have come to be persuaded that an
interpretation of paragraph (b) which, if given effect, would have the result
that, while the wrongful death of a stepchild is considered to be an event
which is properly to be compensated, the wrongful death of a "de facto stepchild" is not considered to
merit compensation, is not an outcome which accords the same respect to the
purely de facto family relationship
as to the relationship by affinity. Putting
it this way is to equate "respect" with "recognise as being of significance and
value". The complaint therefore comes to
be that the state has not accorded the same value to the pursuer's, now sadly
terminated, relationship with his partner's son as it would have done had he
and his partner been married. No doubt the state's obligations under Article 8
go well beyond simply recognising family life as something of significance and
value, but I see such recognition as being at least part of what the individual
is guaranteed by virtue of the Article. A
tangible expression of that recognition is to confer title to sue for damages
when a family relationship is wrongfully terminated. Not to confer title to sue on someone in the
position of the pursuer when title to sue is conferred on persons in an
analogous position is therefore to discriminate in a way that contravenes
Article 14.
[22] I am accordingly persuaded that the ordinary reading of
paragraph (b) of Schedule 1 to the 1976 Act would, if given effect,
be incompatible with Article 14 taken together with Article 8 of the
Convention. I turn then to my third
question: whether it is possible to read the provision in question in a way
which removes any incompatibility. I
consider that this question falls to be answered in the affirmative. I rejected definition c. in the Oxford English
Dictionary as a primary definition which might inform the ordinary meaning of
"parent" but, following the approach adopted by the House of Lords in Ghaidan, I see no reason why, in order
to render the provision compatible with the Convention, the meaning of "parent"
where the word appears in paragraph (b) cannot be extended to include someone
who, to a material extent, as a matter of fact fulfilled the roles usually
associated with parenthood. On his
averments the pursuer would come within that extended definition.
Decision
[23] I shall accordingly allow proof before answer. I shall reserve all questions of expenses
meantime.
