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    The Legal Challenge

Charles and Rebecca outside Kensington and Chelsea Register Office.

In October 2014, London-based couple Rebecca Steinfeld and Charles Keidan tried to form a civil partnership at their local registry office – Chelsea Town Hall in London – but were told that they couldn’t because they were not of the same sex – civil partnerships are restricted to same-sex couples only.

Following this refusal, Rebecca and Charles launched a legal challenge in December 2014 in the form of a Judicial Review at the High Court.

Over 3 years later, their case will be heard in May 2018 in the UK’s Supreme Court, which concentrates on “cases of the greatest public and constitutional importance”.

The couple’s solicitor, Louise Whitfield, of leading public law firm Deighton Pierce Glynn, has commented:

“The Supreme Court only gives permission for a very small number of cases each year – those that are the most important for the Court to consider. It is another significant step in the journey to achieve equal civil partnerships for all, and the Court’s decision to grant permission recognises the great public importance of this issue.”

Scroll down to learn more about the background and progress of the case.

Why are Charles and Rebecca taking the case?

We asked Charles and Rebecca to explain in their own words:

“We are taking this case because the UK Government is barring us from forming a civil partnership simply because we are not of the same sex. We don’t think there is any justification for barring opposite-sex couples from forming civil partnerships. On the contrary, there are many positive reasons to remove the bar. Opening civil partnerships to opposite sex couples would be fair, popular and good for families and their dependent children.

Personally, we wish to form a civil partnership because that captures the essence of our relationship and values. For us, a civil partnership best reflects who we are, how we see our relationship and our role as parents – a partnership of equals. We want a civil partnership to cement our commitment and strengthen the security of our family unit. 

Yet the Civil Partnership Act 2004 states: “Two people are not eligible to register as civil partners of each other if … they are not of the same sex.” In other words, civil partnerships are only available to same sex-couples. Thus, when we sought to give “notice of intention” to enter into a civil partnership in September 2014, we were refused by the Registrars at Chelsea Old Town Hall. As a result, we launched a legal case, petition and fund in December 2014 to challenge this direct discrimination in law.

We also believe that opening civil partnerships to opposite-sex couples would complete the circle of full relationship equality that began with the hard-won victory for same-sex marriage. We campaigned for equal marriage and believe that the significance and symbolism of opening marriage to same-sex couples cannot be overstated. Legalising same-sex marriage was the recognition that everyone is of equal worth and has the right to equal treatment under the law.”

What is the legal basis of the case?

Charles and Rebecca’s legal claim is that Section 1 of the Civil Partnership Act 2004, which restricts civil partnerships to same-sex couples, is incompatible with Article 14 (read with Article 8) of the European Convention on Human Rights, which states that everyone should be treated equally by law, regardless of sex or sexual orientation. These Convention rights are currently incorporated into UK law by the Human Rights Act 1998.

Article 8 “Right to respect for private and family life” provides that “(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) 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.”

Article 14 “Prohibition of discrimination” provides that “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.”

Charles and Rebecca are being represented by an outstanding legal team. Their team includes solicitor Louise Whitfield, a leading practitioner in the field of public and human rights law, and partner at Deighton Pierce Glynn and barristers, Karon Monaghan QC and Sarah Hannett of Matrix Chambers. Karon Monaghan is one of the UK’s top equalities barristers. She is author of the acclaimed book ‘Monaghan on Equality Law’, and a past recipient of Liberty’s Human Rights Lawyer of the Year award. Sarah Hannett is regarded as a ‘rising star’ in human rights and public interest law.

What has been the significance of the case so far?

The case has proved to be of real interest and significance to family and human rights law practitioners.

Currently, over 3 million cohabitees have virtually no legal protection. The opportunity that they could enjoy, should this case be successful, to formalise their relationship with a civil partnership will automatically provide the same protections that marriage does. Family law specialists will be keen to see people being removed from a problematic area legally.

The case has already proved of special interest in the field of human rights law. The Court of Appeal accepted that matters pertaining to cohabitees’ rights like this do fall within the ambit of Article 8 of the ECHR, setting a precedent that has already been used in subsequent appeal cases and helped other cohabitees to extend the limited rights they do have.

Everyone agrees this is discrimination but the Government says it’s acceptable to treat different groups of people in different ways while they make up their minds over a number of years. If this case can establish that a “wait and see policy” is a breach of rights, it could help lots of other people facing discrimination to challenge unfair delays by the Government.

What has happened in the case so far?

The timeline of the case so far is as follows:

  • October 2014: Charles and Rebecca were refused by the Registrars at Chelsea Old Town Hall when they sought to give “notice of intention” to form a civil partnership.
  • December 2014: Charles and Rebecca launched a legal challenge – in the form of a Judicial Review – at the High Court.
  • February 2015: A High Court judge, Mrs Justice Elisabeth Laing DBE, granted permission for Charles and Rebecca’s legal claim to proceed. The Judge also granted Charles and Rebecca a Protective Costs Order recognising the public interest and importance of the case.
  • January 2106: Rebecca and Charles’ case is heard in the High Court. The judge rules that the continuation of a ban on civil partnerships for opposite sex couples is lawful but grants immediate permission to appeal.
  • November 2016: Rebecca and Charles’ case is heard in the Court of Appeal.
  • February 2017: Result announced from the Court of Appeal stating that the couple’s rights had been breached and that the current ban could not continue indefinitely. However in a 2:1 split ruling, the court gave the government limited time to decide on the future status of civil partnerships. Buoyed by the support of the lead judge Lady Justice Arden, who stated “the appellants are right”, Rebecca and Charles lodge their appeal to the UK Supreme Court.
  • August 2017: The Supreme Court grants permission to hear the case.
  • May 2018: The UK’s Supreme Court to hear the case on 14-15 May 2018.
What are the possible outcomes?

Charles and Rebecca are seeking a declaration that the Civil Partnership Act (CPA) is not compatible with Articles 8 and 14 of the European Convention on Human Rights.

In response to a declaration of incompatibility between the CPA and European Convention, the demand would be for the Government to extend civil partnerships to all, regardless of sex or sexual orientation. This would enable all couples access to form civil partnerships, on an equal footing, which in turn could have significant implications for the UK’s 3.3 million cohabiting couples. Such a judicial ruling and Government response would advance equality and promote the welfare of families across the country.

How likely is it that the case will be successful?

Charles and Rebecca’s legal team believe their case is strong and winnable. There is plainly a difference in treatment between same-sex and opposite-sex couples’ access to civil partnerships. The BBC’s Legal Correspondent, Clive Coleman, has described the case as the result of an inevitable “collision course” between the discriminatory provisions of the CPA and the equality provisions of the European Convention. The CPA’s discrimination requires justification if it is not to violate Article 14, read with Article 8, of the Convention. But, as the Legal Expert and Professor of Human Rights Law, Kings College London, Robert Wintemute, explains, “The European Convention on Human Rights requires the Government to show ‘particularly convincing and weighty’ reasons why it is necessary to exclude opposite-sex couples from civil partnership, now that same-sex couples may marry. This is a heavy burden of proof, which the Government will find very hard to meet.”

Charles and Rebecca are hopeful that the judges appointed to hear their case will acknowledge the discrimination of the CPA, declare its incompatibility with the European Convention, and thereby strongly encourage the Government to end the difference in treatment by opening civil partnerships to opposite and same sex couples alike. But, as with the struggle for same-sex marriage, significant and sustained legal, public and political pressure will be needed to promote the necessary, long-overdue but relatively straightforward change in the law.

If you would like to contribute to this effort, please visit our Get Involved page.

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Ms Steinfeld and Mr Keidan with the court's permission

Ms Steinfeld and Mr Keidan with the court’s permission

Top Image: Royal Courts of Justice and city limits dragon by Ruth Hartnup on Flickr

Registry office image: Robert Taylor