Thursday 27 June 2013
COURT DISMISSES ADOPTION APPEAL
Summary of Judgment
The Divisional Court today dismissed an appeal against an earlier judicial decision that a ban on unmarried couples, irrespective of sexual orientation, and those in a civil partnership from being considered as potential adopters was discriminatory.
On 18 October 2012 Mr Justice Treacy granted the NI Human Rights Commission’s (“NIHRC”) challenge to the NI adoption legislation on the grounds that it is unjustifiably discriminatory in acting as a bar to unmarried couples and those in a civil partnership from being considered as potential adopters. The NIHRC case was supported by C, a lesbian who has been in a long term relationship, and who with her partner are keen to be considered as adoptive parents. They also want to enter into a civil partnership. The Department of Health, Social Services and Public Safety (“the Department”) appealed the judge’s decision to the Divisional Court.
Article 14 of the Adoption (NI) Order 1997 (“the 1997 Order”) provides that an adoption order may only be made on the application of a married couple. Article 15 provides that an adoption order may only be made on the application of one person over the age of 21 years where that person is not married or a civil partner, or that person is married and the court is satisfied that his spouse cannot be found, the spouses have been separated and the separation is likely to be permanent, or his spouse is incapable of making an application for an adoption order.
The NIHRC expressed grave concern that NI is out of step with the rest of the UK in that unmarried couples cannot apply to adopt. In England and Wales and Scotland, unmarried couples irrespective of sexual orientation or whether in a civil partnership or not can apply to be considered to adopt a child. The NIHRC challenged Article 14 of the 1997 Order as representing a blanket ban on unmarried couples, whether heterosexual, homosexual or those in a civil partnership from being able to apply for adoption as a couple. It also challenged Article 15 as it represents a blanket ban on any person in a registered civil partnership from being able to adopt, whether as an individual or as a couple.
The Department raised three preliminary points which it contended should have led the judge to dismiss the proceedings:
· The right of the NIHRC to bring the proceedings;
· The proceedings were not brought in time; and
· The Department was not the appropriate respondent in the proceedings.
The Divisional Court rejected these arguments. Lord Justice Girvan, delivering the judgment of the Court, held that the legislation establishing the NIHRC meant that it had standing to take the case on behalf of C who “had a clear interest in establishing the true state of the law affecting her because it will impact on decision on whether she should or should not enter into a civil partnership and whether she can or cannot or in any or in some circumstances adopt a child”. He added that it was clear that C was a victim and the Department’s objection on this ground was without substance.
Lord Justice Girvan held that the proceedings could not be considered as being brought out of time as the issues raised relate to alleged rights violations which are ongoing. He also held that Department was the appropriate respondent as its remit extended to adoption law and practice, it had information on its website relating to adoption eligibility that was incorrect and it had disregarded the effect of a decision of the House of Lords.
The Court referred to a judgment of the House of Lords (In re G) which the Attorney General accepted was binding on the Court of Appeal. In this judgment, the House of Lords concluded that the European Convention on Human Rights (“ECHR”) rights of the applicants, an unmarried couple in a long-standing relationship, were engaged by the legal bar on them being considered ineligible to be considered as adoptive parents. While the state was entitled to take the view that in general it was better for children to be brought up by parents who were married to each other it was misleading to generalise that this meant that no unmarried couple could make a suitable adoptive parent. The House of Lords held that a blanket rule excluding unmarried couples at the outset from the process of being assessed as potential adoptive parents was irrational.
Lord Justice Girvan said that what emerged from this case was that the House of Lords rejected as “irrational, disproportionate and unjustified” the blanket ban on adoption by an unmarried couple. He added that unless and until the UK Supreme Court (which replaced the House of Lords) decides to overrule its decision in Re G, the prevailing domestic law of NI means that an unmarried heterosexual couple are eligible to be considered for adoption. Lord Justice Girvan then went on to say that once it is clear that under domestic law an unmarried heterosexual couple in NI will be eligible to be considered for adoption a decision of the ECtHR makes clear that a heavy onus lies on the state to justify a differential treatment of unmarried homosexual couples:
“Thus, in the context of a case such as that of C and her partner, before they enter into a civil partnership, they would be eligible to be considered for adoption as a couple. It would be unjustifiable discrimination, as compared to unmarried couples in the light of Re G, to treat them differently. While this does not mean that they have a “right” to adoption they have in effect an entitlement as a matter of law to ask to be considered for adoption.”
Lord Justice Girvan then went on to consider the consequences of C entering into a civil partnership with her partner. The Department contended that Article 15 of the 1997 Order prohibits a person in a civil partnership from being eligible for adoption in any capacity whether as an individual or as a couple. He said this outcome produced an “absurd and irrational result” as C could apply to be considered for adoption as an individual or with her partner as a couple. He added that if the Department was correct in its approach to Article 15, the consequence of same sex partners publicly cementing their relationship (which should normally be considered as enhancing the chances of establishing a stable and committed relationship) was to render each party wholly incapable of adoption. He noted that the Attorney General had struggled to advance any rational explanation for this other than to suggest that the prohibition was a stop gap until an ultimate decision was taken in relation to any reform of adoption law in NI. Lord Justice Girvan commented that this could not provide a rational basis or justification for the differential treatment of those in a civil partnership compared to same sex couples outside a civil partnership.
Lord Justice Girvan concluded that if the Department is to interpret Article 15 of the 1997 Order as stated to the court, the discriminatory prohibition to adopt imposed on civil partners could not withstand challenge. He added that any Departmental guidance to those looking for advice or information about adoption eligibility criteria should state the law clearly and accurately and should take account of relevant case law:
“It is regrettable that until recently the Department website failed to give correct advice in relation to cohabiting couples in relation to eligibility to adopt. It is equally regrettable and surprising that social workers were operating the adoption system without being made aware of the effect of the decision in Re G and its implications. If it is to avoid being misleading, Departmental guidance must take account of the effect of the law as it currently stands. It must thus take account of the outcome of the present appeal.”
The Divisional Court dismissed the appeal.
NOTES TO EDITORS
1. This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Court Service website (www.courtsni.gov.uk).
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