West Law Report

Irish ban on unmarried adoption unlawful

Posted in House of Lords (case), Times Law Report by mrkooenglish on June 26, 2008

From The TimesJune 23, 2008

Irish ban on unmarried adoption unlawful

House of Lords

Published June 23, 2008

In re P (Adoption: Unmarried couple)

Before Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Mance

Speeches June 18, 2008

Regulations governing the adoption of children in Northern Ireland which prevented the consideration of an unmarried couple as potential adoptive parents were in breach of the couple’s rights to a family life, under article 8 of the European Convention on Human Rights and article 14, prohibiting discrimination.

The House of Lords so held, Lord Walker dissenting, in allowing an appeal by prospective adoptive parents from the dismissal by the Court of Appeal in Northern Ireland (Sir Brian Kerr, Lord Chief Justice, Lord Justice Higgins and Lord Justice Girvan) ([2007] NI 251) of their appeal against the dismissal by Mr Justice Gillen, in the Family Division of the High Court in Northern Ireland, on April 6, 2006, of their application for a declaration that articles 14 and 15 of the Adoption (Northern Ireland) Order (SI 1987 No 2203(NI 22)) contravened articles 8 and 14.

The defendant was the Department of Health and Social Service and Public Safety of Northern Ireland on behalf of the Crown. The Official Solicitor represented the interests of the prospective adoptive child.

Mr John O’Hara, QC and Ms Cathy Hughes for the applicants; Mr Bernard McCloskey, QC and Mr David McMillan for the Crown; Mr Michael Lavery, QC and Mr Gregory McGuigan for the Official Solicitor.

LORD HOFFMANN said that 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 than by those who were not.

The question was whether there was a rational basis for having any such rule. In his Lordship’s opinion, such a rule was quite irrational.

In fact, it contradicted one of the fundamental principles that the court was obliged to consider: what would be in the best interest of the child? Such a rule could not be justified because the law required the interests of each child to be examined on a case-by-case basis.

A proposal a year or two ago to amend the law in Northern Ireland by removing the requirement of marriage generated a great deal of passion.

People were concerned that it would send a signal that the institution of marriage was undervalued, or encourage people not to marry on the ground that being unmarried would be no obstacle to adopting children.

But the question for the court was whether those concerns had any rational basis, and, even more important, whether it was right to take them into account in a case in which the law gave priority to the interests of the individual child.

Neither of those questions could be given an affirmative answer.

As the House affirmed in In re McKerr (The Times March 12, 2004; [2004] 1 WLR 807) “Convention rights”, within the meaning of the Human Rights Act 1988, were domestic and not international rights. They were applicable in the domestic law of the United Kingdom and it was the duty of the courts to interpret them like any other statute.

When section 6(1) of the 1998 Act said that it was unlawful for a public authority to act incompatibly with Convention rights, that meant the domestic rights set out in the Schedule to that Act, reproducing the language of the Human Rights Convention.

It was for the court in the United Kingdom to interpret articles 8 and 14 of the Convention and to apply the division between the decision-making powers of courts and of Parliament in the way which appeared appropriate for the United Kingdom.

It followed, that the House was free to give what it considered to be a principled and rational interpretation to the concept of discrimination on the ground of marital status.

His Lordship would declare that notwithstanding article 14 of the Adoption (Northern Ireland) Order 1987, the applicants were entitled to apply to adopt the child.

That was to say nothing about the conditions which their relationship should satisfy in order to justify the court in making an adoption order, since that was a matter for the court when it considered the interests of the child. Nor was it to say that the fact that they were not married to each other might not be relevant to that question.

The House would only say that it was unlawful that the applicants be rejected as prospective adoptive parents on the sole ground that they were not married to each other.

Lord Hope, Lady Hale and Lord Mance delivered concurring opinions; Lord Walker delivered a dissenting opinion.

Solicitors: Emmet J. Kelly & Co, Banbridge; Solicitor, Department of Finance and Personnel, Belfast; Official Solicitor, Belfast.

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