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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MC, Re Application for Judicial Review [2004] ScotCS 22 (30 January 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/22.html Cite as: [2004] ScotCS 22

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[1] The petitioner resides with her husband A V, and also with her son M V who was born on 23 November 1988. In February 1999 the children of the petitioner's brother were made subject to a place of safety order in terms of the Children (Scotland) Act 1995. These children were M C (born on 28 October 1989 and N C (born on 19 January 1991) (hereinafter called the "C children"). In June 2002 the sheriff at Hamilton made an order under section 11 of the Children (Scotland) Act 1995 giving the petitioner and her husband parental rights in respect of the C children.

[2] On 16 October 2001 the children of the petitioner's husband's sister were also made subject to a place of safety order in terms of the Children (Scotland) Act 1995. These children were G V (born 30 August 1989) and S V (born on 17 April 1993) ("the V children"). The petitioner avers that thereafter she was approached by South Lanarkshire Council, who are the respondents in this judicial review, and who asked her if she would take the V children into her home. The children were at that time already subject to a supervision requirement and were accommodated at a residential home run by the respondents. The V children began to stay with the petitioner, her husband and child and the C children at the petitioner's home in South Lanarkshire, initially for two nights a week, but as from 1 January 2002 increasing to five nights a week. On 4 April 2002 the Children's Hearing varied the supervision requirement so that the V children thereafter stayed on a full-time basis with the petitioner until 16 January 2003, when they returned to stay with their mother.

[3] In the course of her care of the V children the petitioner on a number of occasions asked the respondents to provide financial assistance in looking after them. The respondents declined to provide all of the assistance sought. Their general approach to these requests is found in two letters written by them dated respectively 18 February 2002 and 6 March 2002. Put briefly, the respondents' position was that the petitioner would be considered for a Link Carer's allowance once the V children were living full-time with her and this move had been ratified by the Children's Hearing. The Link Carer's allowance comprises payments made in terms of a scheme operated by the respondents, and which is more fully described later in this opinion.

[4] The petitioner eventually received regular Link Carer's scheme payments from 4 April 2002, when the V children came to stay with her on a full-time basis. However, the petitioner now claims that during the period from April 2002 she should have been provided with the same level of financial assistance as was given to carers under the fostering regulations. For present purposes it is sufficient to note that the financial assistance given to carers under the fostering regulations is significantly higher than the payments made under the Link Carer's scheme. Further, the petitioner seeks back-dating of these payments to at least 1 January 2002 when she started caring for the children five nights a week. It is unclear from the pleadings whether the petitioner seeks further payments for the period extending back beyond 1 January 2002, and it is also unclear what was the nature and extent of the petitioner's requests for financial assistance from the respondents during the transitional period between 1 January 2002 and April 2002, but these matters are perhaps not of particular significance at the present time. The correspondence referred to earlier noted that certain ad hoc additional payments for food and other matters had been made by the respondents to the petitioner during the transitional period. The respondents also provided an explanation for their decision on the level of payments they had decided to give to the petitioner, namely that they regarded the petitioner as a related carer, and not as a foster carer under the fostering regulations. Accordingly any payments required to be restricted to what was available under their Link Carer's scheme.

[5] In these circumstances the petitioner now seeks judicial review of the respondents' decision to refuse to give her the financial assistance which she requested. She seeks a declarator which is in three parts, and which, while expressed in the present tense in the pleadings, now relates to the period during which the V children stayed with her. The petitioner firstly seeks a declarator that, in determining whether to make payments to the petitioner in respect of the care, or towards the maintenance of the V children, while they were living with her, or in determining the amounts of such awards, or in deciding whether to have made any other form of assistance or services available to her, the respondents would not have been entitled to take into account the family relationship between the petitioner and her husband and the V children; secondly, she seeks declarator that the respondents are not entitled to take into account that the children came to reside with her in terms of a decision of the respondents as opposed to a decision of the Children's Hearing; and thirdly, she seeks declarator that the respondents are not entitled to reduce the payments made to the petitioner on the ground that the petitioner could not at the relevant time claim social security benefits in respect of the children. The purpose of these various declarators is in effect to undermine the basis on which the respondents declined to make the payments now sought by the petitioner for the support of the children while they stayed with her. If that attack succeeds, then it will be open to the petitioner to reclaim from the respondents those payments which they had earlier declined to make. The petitioner also seeks damages in terms of section 8 of the Human Rights Act 1998 but that matter is not to be dealt with at this stage. At the first hearing of the judicial review, which was in effect a debate on the pleadings, the respondents sought to have the petitioner's action dismissed at this stage in terms of their second plea-in-law. The first plea-in-law is not being insisted on at this time.

[6] In the pleadings, the petitioner has expressed her reasons for arguing that the respondents' decisions to refuse her requests for further payments were wrong and should be reduced in the following terms:

[7] The statutory background in domestic law is as follows. Section 12 of the Social Work (Scotland) Act 1968 as amended provides:-

Section 22 of the Children (Scotland) Act 1995 provides:-

It is accepted that the V children are properly described as being "in need" in terms of this section and that the petitioner and the children are "a family".

Section 93(1) of the Children (Scotland) Act 1995 states, inter alia, that:

[8] The respondents also have a general power conferred upon them by section 50 of the Children Act 1975 which states, inter alia, that:-

[9] It is against these statutory duties that the petitioner avers that the respondents' duties of care arise. It is admitted by the respondents that they had the power to make payment in cases of this sort. The first question therefore for the petitioner was whether these general statutory principles translated into a right of entitlement to financial support for any particular period or for any particular purpose in terms of domestic law.

[10] Secondly, the petitioner argues that she has a right to the payments she seeks arising out of Article 8 of the Convention of Human Rights.

Article 8(1) provides:-

[11] The petitioner's claim is in brief that the respondents have failed to show respect for her family life by refusing to give her the financial assistance she now seeks.

[12] Further, the petitioner claims that she has a right to claim compensation from the respondents on the basis of Article 8 of the Convention, read along with Article 14. Article 14 provides:-

[13] In terms of these Articles, taken together, the petitioner claims that in fulfilling their positive duties under the domestic statutes referred to above, and in doing so compatibly with Article 8 of the Convention, the respondent must not act in a discriminatory fashion. In particular the respondents had a duty, in terms of Article 14, not to distinguish between carers related to children they care for, and those who are not so related. To do so would be to discriminate against them on the basis of their family status. They also had a duty not to discriminate against the petitioner by treating her differently from her chosen comparators, namely foster carers under the fostering regulations.

[14] Further matters which are relevant to a consideration of these various issues are as follows. Between 1 January 2002 and 4 April 2002 the petitioner and her husband received state benefits, and these included elements in respect of the C children and their son M who were, during that period, living with her. The benefits did not include any elements for the V children, even although they were staying five nights each week with her. In particular the petitioner did not receive any Child Benefit and Income Support which took into account the presence of the V children in her home. One of the conditions of the payment of Child Benefit is that no other person can be entitled to that benefit. During this transitional period, the two V children were in the residential care of the respondents, and any entitlement to Child Benefit in respect of them was therefore not available to the petitioner. This meant that Income Support was also not available to the petitioner during this transitional period, because the grant of Income Support is dependent on the issue of Child Benefit (Income Support (General) Regulations 1987 (S.I.1967) reg.4.5). The legislation concerning Child Benefit is as follows.

[15] Section 141 of the Social Security Contributions and Benefits Act 1992 provides:-

Section 144 of the Act provides that regulations may be issued to provide that Child Benefit shall not be payable in certain circumstances, described in Schedule 9 to the Act. Schedule 9 provides:-

The prescribed regulations are the Child Benefit (General) Regulations 1976 (S.I.1965) as amended by the Child Benefit (General) Amendment Regulations 2000 (S.I. 2891)

[16] Foster carers are treated as being a special class by the legislation. Their position is governed by the Fostering of Children (Scotland) Regulations 1996 (S.I.3263). In the interpretation section (reg. 2(1)) the word "foster" means to arrange for a child to live as a member of the family of a person who is not a parent, does not have parental responsibilities in respect of the child and who is not a relevant person in relation to the child and who undertakes to look after the child other than in accordance with the Adoption Agencies (Scotland) Regulations.

[17] The definition of a "relevant person" has the meaning given to that term by section 93(2)(b) of the Children (Scotland) Act 1995. By virtue of that subsection a "relevant person" in relation to a child means -

Accordingly the term "foster carer" may be said to pre-suppose someone who is a third party or stranger to the child.

[18] The local authority have to approve foster parents in terms of reg. 7 and Part II generally of the Regulations. Specific provision is made for the payment of allowances to foster carers in terms of reg. 9 and there is considerable detail in respect of their process of approval in Part II of the Regulations, and of their obligations in the second Schedule. Foster parents are not entitled to Child Benefit (reg.8(8)(d) of the Child Benefit (General) Regulations 1976 (S.I.1965) as amended by the Child Benefit (General) Amendment Regulations 2000 (S.I.2891)). This disentitlement is taken into account when assessing what foster parents get by way of financial support. The same applies in respect of Income Support, which, as indicated earlier, is attributable to the presence of a child in a family but is dependent on the recipient being entitled to Child Benefit.

[19] The Link Carer's scheme operated by the respondents is described in a memorandum issued by the former Strathclyde Regional Council dated 3 March 1995. It is funded by the local authority in effect out of the fostering budget. Link Carers are defined as carers who have some significant link or relationship with a child before care is assumed; in other words the scheme has in mind that there are suitable relatives, family friends or neighbours willing to meet a child's care needs, at least in the short term. As indicated earlier, the scheme provides for payment to the carers at a rate significantly less than that which is paid to fosterers, and these payments are not meant to be a substitute for the system of state benefits.

[20] The net effect of this in the present case is that before 4 April 2002 the petitioner was not entitled to Income Support or Child Benefit for the V children. She did not receive any Link Carer's allowance during this period. From 4 April 2002 to January 2003 she was entitled to Child Benefit and Income Support. She also received Link Carer's allowances from the respondents during that period. Had the children been fostered to the petitioner under the relevant Regulations then there would have been no entitlement either to Child Benefit or Income Support throughout the entire period. However, if she had fostered the V children, she would have received the significantly higher rate of assistance given to fosterers.

[21] In these circumstances, counsel for the respondents submitted that the various arguments put forward by the petitioner in support of her claim for increased financial assistance from the respondents were all irrelevant. She turned her attention first to the petitioner's claim in the pleadings that the decision by the respondents not to make the extra payments she requested was unreasonable. Counsel submitted that this claim by the petitioner was without any legal foundation. The benefits of Child Benefit and Income Support were what the United Kingdom had decided was within the margin of appreciation as being sufficient for the support of children in these circumstances. The powers given to a local authority in terms of the statutory provisions quoted earlier allowed a very wide discretion as to whether to give financial assistance or not, and at what level. In terms of section 22(3)(b) of the Children (Scotland) Act 1995, financial assistance was only available in exceptional circumstances. Accordingly it could not be said that there was any question of unreasonableness in the way in which the respondents had discharged their duties, as described in the case of Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 K.B.223; [1947] 2 All.E.R.680, C.A. There was therefore no right of further support under domestic law, and no duty or responsibility upon the respondents to provide further financial assistance.

[22] In reply counsel for the petitioner submitted that the case of unreasonableness should be left open. The petitioner had looked after the V children in the same way as a foster carer and prior to April 2002 she had to meet all the costs of looking after them. It was only fair therefore that she should get the same amount of money as a foster carer. She had identified the respondents' statutory duties and responsibilities in this area, namely section 12 of the Social Work (Scotland) Act 1965, and sections 22 and 93(1) of the Children (Scotland) Act 1995, and she had also made specific averments in support of the remedy sought in terms of those provisions, namely that the respondents had a duty to provide for the welfare of the family unit, that the children were in need and that the respondents had the power to make payments to the petitioner in respect of the children.

While it is difficult not to be sympathetic to the petitioner's position, I can see no grounds for holding that the respondents' actions in refusing to provide the petitioner with the same level of financial assistance as a foster carer can properly be described as unreasonable. The domestic statutory provisions cited earlier clearly give to the respondents a discretion as to the provision and level of financial help which is virtually unfettered. In these circumstances it cannot be said that the respondents' decision to give assistance to the petitioner only in terms of the Link Carer's scheme was one which no reasonable local authority could have reached. In the present context, the only situation where unreasonableness or irrationality could arise is if the petitioner had required help and was not given it. Accordingly, I was left in no doubt in the circumstances that the petitioner's averments in respect of unreasonableness on the part of the respondents were irrelevant and should be deleted.

[23] Secondly, the petitioner maintains in her pleadings that the respondents were obliged to grant her request for extra funding requested by virtue of the terms of Article 8(1) of the Convention of Human Rights (quoted earlier), and which is concerned with the right to respect for private family life. Counsel for the respondents however submitted that it was well settled that the right to respect for family life did not impose an obligation on the state to provide further financial assistance. Reference was made to Vaughan v United Kingdom 1263 9/87 (unreported) and also to several other authorities cited later in this opinion, where the same conclusion was reached, albeit as an issue of secondary importance. Counsel for the petitioner, in response, submitted that the applicability of Article 8 should again be left open for the purposes of inquiry, but he did not elaborate on this submission to any significant extent. In the circumstances, I was satisfied that the respondents' position in this matter was correct and supported by clear authority. Article 8(1) does not confer a freestanding right to the financial provisions sought by the petitioner, or indeed to any other financial provision of that sort; the right to financial assistance is not a Convention right in terms of that Article alone. I therefore consider that the petitioner cannot rely on Article 8 by itself in support of her present claims.

[24] However, the petitioner's second argument in terms of the Convention was concerned with whether Article 14, which contains provisions against discrimination, taken together with Article 8, provided a remedy to the petitioner in her claim for additional financial assistance. Counsel for the respondents submitted that again the petitioner had not been able to plead a relevant case for further assistance on this basis. She argued that the reasoning behind the claim, which is said to arise out of the conjunction of Articles 8 and Article 14, could be stated briefly as a precept of community law in the following way. If a member state chooses to confer additional rights within the ambit of any particular Convention right (such as Article 8) it cannot then discriminate in the way in which it confers that right, with regard to any of the factors described in Article 14. In the present case, counsel submitted, it is accepted that the only factor in that Article on which the petitioner can rely is that of her family status, under the heading of "other status" therein referred to; however, the petitioner had failed to demonstrate that her family status allowed her to invoke Article 8 and Article 14. Reference was made to Petrovic v Austria (unreported) 27 March 1998 and Pointer v Carmarthenshire C.C. Housing Benefit Review Board [2001] EHWC Admin 308. The question in the present case was whether there had been a breach of the discrimination provisions in Article 14, in the sense that there was no objective and reasonable justification for the different treatment given to the petitioner, bearing in mind that contracting states enjoy a margin of appreciation in the area of discrimination. The courts should defer to decisions made by the state, provided these were reasonable. Counsel further argued that there should be a wide interpretation in considering the margin of proportionality available to the respondents, particularly in areas of social and economic importance (Reynolds v Secretary of State for Work and Pensions [2002] EWAC 426). The domestic statutory provisions quoted earlier were very wide in their application and did not confer any additional domestic rights upon the petitioner. Such additional rights were essential if Article 14 was to be invoked.

[25] Further, counsel for the respondents submitted that if the petitioner wished to invoke the provisions of Article 14 in conjunction with Article 8 she would require to satisfy the test set out in the case of London Borough of Wandsworth v Michalak [2002] EWCA Civ 27. This was a case concerned with rights available under the Housing Acts depending on whether a person who sought to succeed to a secure tenancy enjoyed, or did not enjoy, a particular family relationship with the former tenant. The claim of the person hoping to succeed to the secure tenancy was based on the right to respect for private family life and home in terms of Article 8, together with a supposed discrimination on the basis of different family relationships in terms of Article 14. In the course of his judgment, Brooke L.J. suggested that the question of whether Articles 8 and 14 applied in conjunction to any particular situation should be approached in a structured way, and in particular he proposed that four questions should be considered in order to determine whether the Articles, read together, would provide the claimant with the particular remedy sought. If the answer to any of these questions is in the negative then the claim is likely to fail, and it will then be in general terms unnecessary to proceed to the next question. This approach was approved and adopted in subsequent cases such as Regina (Hooper) v Secretary of State for Work and Pensions [2003] 1 WLR 2623 and Ghaidan v Godin-Mendoza [2003] Ch.380.

[26] The four questions described by Brooke L.J. in the Michalak case are as follows:-

[27] I understand it to be agreed in this case that, in order to discover whether the petitioner has a claim in terms of the relevant Articles, it is necessary to examine these questions at this stage. In respect of the four questions suggested in Michalak, counsel for the respondents was prepared to accept in respect of the first question that for the purposes of the present debate the payment sought by the petitioner fell within the ambit of Article 8, although she reserved her right to dispute that issue if the case ever came to proof. In my view this concession was properly made at this stage and means that it then becomes possible for the petitioner to use that concession as a gateway to invoking Article 14.

[28] In respect of the second question in Michalak, counsel for the respondents submitted that in essence the critical question was whether the petitioner had demonstrated that there had been different treatment between herself and other persons put forward as a comparison. She argued that the petitioner had failed to demonstrate that there was such discrimination between the treatment of herself in respect of the V children on the one hand, and either the C children, or children taken into fostering care generally in terms of the relevant regulations, on the other. In other words, the petitioner's case was that she had been discriminated against because, in the first instance she was related to the children who were the source of her claim for additional compensation, and secondly, because she had been unfairly treated as regards what was given to foster carers. But, counsel argued, payments under the Link Carer's scheme could be made to neighbours as well as relatives, and the higher payments to foster carers were not made because they were related to the children, but in terms of a distinct statutory scheme. Accordingly, neither of the distinctions relied upon by the petitioner to create the supposed discrimination arises out of her family status in terms of Article 14. On the basis of the petitioner's averments, the second question in the case of Michalak therefore falls to be answered in the negative, and this part of the action should be dismissed.

[29] Counsel for the petitioners then considered the third question in Michalak which asks whether the chosen comparators, who in terms of this part of the submission are to be taken as foster carers appointed in terms of the appropriate regulations, were truly in an analogous situation to the petitioner. She argued that the answer to that question in the present case was in the negative; clearly foster carers were in a wholly different position from carers under the respondents' short term Link Carer's scheme, who were related to the children they cared for. Fostering was a substitute for family ties, where there was no prior relationship between the carer and the child. Article 8 was not engaged, because fostering was not something which encouraged family life. Foster carers did not qualify for Child Benefit or Income Support, whereas the petitioner did, once the children had come to stay full-time with her. Foster carers are subject to statutory regulations including aspects of approval and review of a sort wholly different to that which apply to relatives or friends or neighbours operating under the Link Carer's scheme. Accordingly, the comparators chosen by the petitioner were not analogous to her own situation, in terms of the third question in Michalak.

[30] Finally, counsel argued that in terms of the fourth question in Michalak there was no objective justification for making the comparison between the petitioner's position, and that of fostering carers. This was a situation where the margin of appreciation and considerations of discretion came into play, particularly in respect of disbursement of public funds and the demarcation of social and economic considerations. It could not be said that any distinction drawn between the two sets of carers was without reasonable justification. Any differences in treatment were within the margin of appreciation available to the respondents.

[31] In response to these various submissions on his client's claim in terms of Articles 8 and 14, counsel for the petitioner suggested that the appropriate course was to send the case to a proof before answer. He maintained that the remedy sought really centred round factual matters and was therefore particularly appropriate for inquiry. There was much common ground between the parties. He argued that there were in fact two bases for the petitioner's claim in terms of the Convention. Firstly he again submitted that the respondents were under an obligation to the petitioner in terms of Article 8. If that were so, then there was no need to look for comparisons. I have already dealt with that submission. Secondly, if there was no obligation in terms of Article 8 standing by itself, then there was a remedy available to the petitioner in terms of Article 8 taken along with Article 14. In terms of Article 14 what had to be demonstrated was that the claimant was one of a class or group who shared a distinguishing characteristic and that this characteristic was the ground upon which the state distinguishes against the members of that class or group. Reference was made to R (Hooper) v Work and Pensions Secretary para.82.

[32] In respect of the four questions suggested by Brooke L.J. in the case of Michalak, counsel for the petitioner noted that in respect of the first question the nature of the claim in the present case prima facie fell within the ambit of Article 8 and this had in effect been conceded for the purposes of the debate.

[33] In respect of the second question, counsel suggested that the first question to be asked was whether there was a difference between the way in which the petitioner had been treated, and the way in which the chosen comparators had been treated. In the present case, on the basis of the averments, the answer was clearly in the affirmative. Reference was made to Ghaidan v Godin-Mendoza, which involved a question of whether partners in a same sex relationship enjoyed the same rights as those in a heterosexual relationship. By analogy, counsel argued that it was unsustainable for the respondents to submit that Article 14 could not be invoked in conjunction with Article 8 in this case simply because it was possible to distinguish between those who are foster carers and those who are not, and between children who are in care because of a court order and those who are in care because of a decision of the Children's Hearing. The respondents could not complain that the petitioner had failed to make the basis of her chosen comparisons clear because they themselves had failed to make clear the basis on which they had decided to allocate financial support to the petitioner.

[34] Counsel for the petitioner then turned his attention to the case of R v Manchester City Council [2001] EWHC Admin.707; [2002] 1 FLR 43. He maintained that this case was very similar to the present. The dispute in that case was between short-term foster carers who were friends or relatives of the child and who were paid significantly less than other foster carers. It was held that the local authority policy of paying short-term foster carers who were friends or relatives of the child at a much lower rate than that paid to other foster carers was unlawful, in that it was irrational and discriminatory. It also failed to meet the key tests of necessity and proportionality. Counsel maintained that the key points of the local authority's policies in that case had exact similarities with the present situation. As in the present case, the policy for payment of related foster carers in Manchester was separate and different from that of non-related foster carers, and maintained a wholly different financial structure. The policy also imposed an arbitrary cash limit on the sum to be paid and prevented any discretionary payments beyond the cash limits. It did not reflect any welfare based analysis of the financial needs created by the placement, and operated so as to discourage family members from being foster carers. In these circumstances, a proof before answer on the second question suggested by Brooke L.J. in Michalak should be allowed.

[35] Counsel for the petitioners further submitted that in respect of the third and fourth questions in Michalak these matters again should be dealt with by inquiry. The petitioner had claimed that foster carers under the regulations were an appropriate comparator with her own case, and whether that was correct or not could only be established by proof. It was accepted by the respondents that the fourth question in Michalak could also only be settled after due investigation, as could the ancillary question as to whether or not the court should consider in the present circumstances, in coming to its decision, whether it should defer to the declared will of Parliament.

[36] It was therefore accepted by both sides that the first and fourth questions described in Michalak can only be properly settled in this case after there has been an examination of the facts. This concession may confirm what I think is clear, namely that the various authorities cited in this part of the argument each depend on their own facts and circumstances when the application of the four tests in Michalak is being considered. Those authorities are therefore not always helpful in considering the circumstances of the present case. However, attention now has to be given to the second and third questions in the Michalak case.

[37] In respect of the second question, counsel were concerned with the critical issue as to whether there had been different treatment as between the petitioner and the other persons put forward for comparison. What also lies behind this question, in the respondent's view, is whether the comparators had been properly selected; this requires an examination of the basis on which these comparisons are made. The petitioner's case in this respect depends, therefore, it was said, on two considerations. The first is that regard must be had to any matters of distinction that can be drawn between the relationship of the petitioner to the C children on the one hand, and the petitioner and the V children on the other. In other words, the petitioner's claim in this respect must be that the respondents must not discriminate between carers who are related to the children and those who are not. The second basis on which the petitioner seeks to make her claim for discrimination relies on the fact that she has selected foster parents as the chosen comparators. In her submissions, counsel for the respondents suggested that neither of these approaches was valid, and that on either view the appropriate response to the second question in Michalak was in the negative. Her argument was basically that in respect of the first basis of the petitioner's claim, the Link Carer's allowance was not restricted to relatives but could be payable to neighbours. Secondly, she submitted that the higher payment to foster carers was paid under distinct statutory requirements; the higher payment for a foster carer was not made therefore because the foster carer might be related to the child but because that person was appointed under the appropriate regulations. In these circumstances, in the first instance the discrimination alleged does not indicate that the petitioner is entitled to further compensation, and in the second, the distinction is not based on family status. Counsel therefore submitted that the appropriate comparison in the petitioner's case for the purposes of Article 14 would properly be to compare a Link Carer who is a relative or family member on the one hand, and a Link Carer who was not related to the child in respect of whom that payment was made, on the other. The Link Carer's scheme provided no distinction between those two groups. Equally the proper comparators for foster carers could only properly be between those carers who were related to the child taken into care, and those who were not so related.

[38] While these arguments were superficially attractive, I do not agree with them. I think that the respondents' analysis of the position is too restrictive. It seems to me that the essence of the second question in Michalak is not to go beyond the simple test of whether or not there had been a difference in treatment between the petitioner on the one hand and those comparators which the petitioner chose to select on the other. The question of whether this comparison is a valid one is properly addressed in terms of the third question in Michalak. That there is a difference in treatment in respect of the respondent's treatment of the petitioner in her care of the V children as opposed to the C children, and between the petitioner as a carer for the V children on the one hand and putative foster parents looking after the same children on the other, is in both instances entirely evident. I agree with the submission of the petitioner's counsel that in this respect a reasonably broad interpretation should be given to what is meant by the phrase "family status". In that sense, the question of whether the children are being looked after by the petitioner as a short-term arrangement under the Link Carer's scheme on the one hand and the situation where the children might be looked after in terms of a fostering arrangement on the other, can both properly and reasonably be described as being situations which reflect the family status of those concerned. In these circumstances therefore I conclude at this stage that the petitioner is entitled to inquiry in order to ascertain whether the appropriate response to the second question in Michalak should be in the affirmative.

[39] I have however had far more difficulty in resolving the third question in Michalak, which is concerned with asking whether the chosen comparators were in an analogous situation to the petitioner. In considering this matter I have found little practical assistance from the various cases cited in the course of argument. As noted earlier, it seems plain that each of these cases depend to a very large extent on their own particular facts and circumstances.

[40] In Ghaidan v Godin-Mendoza, for example, the defendant had for a number of years lived in a stable and permanent homosexual relationship with the protected tenant of a flat of which the claimant was the freehold owner. The claimant sought to recover possession of the property, and it was held at first instance that the defendant could not succeed to the tenancy of the flat as the surviving spouse of the original tenant in terms of paragraph 2 of Schedule 1 to the Rent Act 1977. The defendant appealed on the grounds that since he and the original tenant were partners in a longstanding homosexual relationship, then, on a construction of paragraph 2 of Schedule 1 to the 1977 Act in a way which was compatible with his Convention rights, he should be treated as the spouse of the original tenant and was therefore entitled to become the statutory tenant on the death of the original tenant. On appeal it was held that in order to determine whether the defendant's Convention rights had been infringed, that, the four questions in Michalak had to be asked; and it was also held that in considering the third question as to whether the chosen comparator (who in this case was a spouse in a heterosexual relationship) was in an analogous situation to the defendant, the court had no difficulty in concluding that, as sexual orientation was now clearly recognised as an impermissible ground of discrimination, the defendant had been subject to discrimination in terms of Article 14. It was also held that Article 8 was clearly engaged in the case because the provisions of the Rent Act impinged on his interests in his home. The answer to the third question therefore depended simply on whether, for the purposes of the Rent Act, a long term homosexual partner should be regarded as being in an entirely analogous position to a long term heterosexual partner. There can be no doubt that this is so. In these circumstances I find little which assists in determining whether or not a short term carer in terms of the respondents' Link Carer's scheme can be regarded as truly analogous to a foster parent appointed under the fostering regulations.

[41] In the case of Wandsworth London Borough Council v Michalak itself, the defendant sought to resist a possession order of a secure tenancy in which he had lived, claiming that he was entitled to succeed to the tenancy as a member of the tenant's family pursuant to section 87 of the Housing Act 1985. Section 113(1)(b) of that Act provides that a series of particular relations are entitled to succeed to such a tenancy. The defendant who was related to the secure tenant, but who was not within the description of relatives provided by the statute, used the list of those who were so protected as his chosen comparators. In these circumstances the court concluded that the defendant was not in an analogous situation to the chosen comparators in terms of the third question formulated by Brooke L.J. inter alia because his relationship was not identified in the relevant statute. Again, the details of this comparison do not appear to me to be of any particular assistance in the present case.

[42] Finally, in the case of R v Manchester City Council, the local authority imposed a policy under which short-term foster carers who were friends or relatives of the child were paid a significantly lower rate in respect of the child's maintenance than was paid to other foster carers. It was held that this policy was unlawful in that it was irrational and discriminatory in respect of both the adults and children concerned, that the cash limits on the amounts that could be paid to related foster carers was arbitrary and inflexible; that the level of payments failed to meet the welfare requirements of the children; and that the policy breached the European Convention for the Protection of Human Rights and Fundamental Freedoms, failing to meet the key tests of necessity and proportionality. However, while the decision seems superficially similar to the present case, it is quite clear that the principal matter which engaged the attention of the court was concerned with the tests of necessity and proportionality, and that there was no detailed examination, as there is in the present case, of whether or not the chosen comparators were truly in an analogous situation with the petitioner. Any comments under this topic were therefore clearly obiter to the decision. Further, as counsel for the respondents pointed out, there are a number of important distinctions between that case and the present. For example, in the present case there is a challenge to the application of a policy, whereas in the Manchester case it was a challenge to the policy itself. Secondly, in the case of Manchester the question of what statutory benefits may be available to the petitioner and the chosen comparators was ignored. Thirdly, the essential question in Manchester was a comparison between short-term and long-term foster parents; in the present case the comparison is between foster parents and those under the Link Carer's scheme. Accordingly, I do not consider it appropriate that I should simply apply the decision in Manchester to the present case.

[43] In the present case I have reached the conclusion that, on the basis of her pleadings, the petitioner will not be able to demonstrate that her chosen comparators are in fact in an analogous position to herself. There are plainly a number of significant differences between a related carer under the Link Carer's scheme on the one hand and a foster parent approved in terms of the regulations on the other. Typically a foster parent looks after a child where there has normally been no prior relationship. A placement in terms of the Link Carer's scheme is clearly and specifically designed to maintain family ties by lodging the child with a relative, friend or neighbour. It can be said therefore that the Link Carer's scheme is designed to promote family life, while fostering arrangements are intended to be a substitute for family life. The nature of the responsibilities of a carer who has to contemplate the provision of a long term substitute arrangement for a child's family life, and the resources necessary to implement those arrangements, will inevitably be of a different character to those required for a non-permanent family placement.

[44] Further, in terms of section 26 of the Children (Scotland) Act 1995, foster carers do not qualify for benefits, whereas the petitioner, once she had assumed full-time custody of the children, qualified for both Child Benefit and Income Support. In addition, in terms of the Link Carer's scheme the petitioner received capital payments on an ad hoc basis which were additional to those provided by the State. Such provision does not appear to be specifically made for foster carers. In these circumstances it is difficult to make any appropriate or relevant comparisons between the methods and amounts of payment between the petitioner and her selected comparators. Also, although the petitioner argues in her pleadings that she was, after April 2002, looking after the needs of the V children on a full-time basis in exactly the same way as those children would have been looked after had they been fostered, there is still plainly a difference in the quality of support which these two groups could be expected to provide. The Link Carer's scheme is designed to be a temporary arrangement which contemplates the eventual return of the children to their natural parents, as happened in the present case. In these circumstances it seems reasonable to assume that foster parents in preparing and maintaining a substitute home for a child might have to make entirely different financial arrangements for that child, as opposed to what might be provided by those who are to furnish only a temporary home for the child.

[45] Another feature of difference must lie in the clear and specific regulations which govern the activities of foster carers. There are many considerations in a foster placement which do not apply to a placement in terms of the Link Carer's scheme, particularly in the areas of assessment, control and intervention. It would, for example, have been wholly inappropriate to have placed the V children into foster care in the present case.

[46] I agree with counsel for the respondents that while a wide interpretation should be applied in considering the margins of proportionality, particularly in areas of social and economic importance, conversely there should be a narrow view taken in considering whether or not the chosen comparators are in a truly analogous position to the petitioner or claimant. For the operation of comparison to work satisfactorily in terms of the third question in Michalak, it is clear that a restrictive interpretation is essential. Should there be any significant respect in which the two situations are not truly analogous, then the exercise of comparison could proliferate endlessly. No doubt there are a number of features which could be said to be common to the employments of astronauts and taxi drivers. But, I believe that it is necessary for the proper operation of this exercise that those comparisons should be truly analogous in all material respects, and that the comparisons should be carried out within a clearly defined and clearly related group. In the present case it seemed to me to be quite evident on the basis of the pleadings, on the description of the Link Carer's scheme in the productions, and on the details of the relevant fostering regulations, that there is a number of significant principles of difference between the petitioner's position as a member of the Link Carer's scheme on the one hand and her chosen comparators, created by statute under the fostering regulations, on the other. I consider that even one significant feature of difference in this exercise of comparison would suffice to preclude a claim that the two situations were truly analogous. In these circumstances, therefore, I have concluded that, on the information available at this stage, the petitioner is not able to demonstrate that the answer to the third question posed by Brooke L.J. in the case of Michalak can be answered in the affirmative. If that is correct, then the action in respect of the petitioner's claim in terms of Article 8, taken along with Article 14, is irrelevant and falls at this stage.

[47] As I have indicated earlier, I consider that the fourth question in Michalak is only capable of resolution following a proof. The fourth question depends on whether, assuming that the chosen comparators were in an analogous situation to the petitioner's situation, the difference in treatment between the two situations had an objective and reasonable justification; in other words whether the difference pursued a legitimate aim and whether the differential treatment bore a reasonable relationship of proportionality to the aim sought to be achieved. The question of whether the application of the Link Carer's scheme is within the available margin of appreciation and discretion would inevitably require inquiry, if the answers to the preceding questions were in the affirmative. I also accept the submission by counsel for the petitioner that if discrimination is shown to have taken place it is then for the person responsible for that discrimination to establish an objective and reasonable justification for it. Equally, it is only after all these matters have been determined that the court can decide whether or not it should defer to the will of Parliament in considering these matters; it is only at that point that the court can consider the nature of the social or economic policy which is under discussion to see whether or not it should interfere.

[48] There were other matters which were raised in the course of debate which are not necessary to deal with in the present opinion, including the question as to who should lead at any subsequent inquiry. I shall repel the petitioner's first four pleas-in-law in that they are unsupported by relevant averments. Thereafter the case will be put out By Order to consider any further orders that may be needed.