| ADOPTION — Adoption order — Ability to apply — Unmarried couple wishing to adopt child — Regulations preventing consideration of unmarried couple as potential adopters — Whether unreasonable discrimination — Whether breach of couple’s human rights — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 14 — Adoption (Northern Ireland) Order 1987 (SI 1987/2203 (NI 22)), arts 14, 15
In re P (Adoption: Unmarried couple) [2008] UKHL 38; [2008] WLR (D) 198
HL(NI): Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Mance: 18 June 2008
Arts 14 and 15 of the Adoption (Northern Ireland) Order 1987, which prevented an unmarried couple from being considered as potential adoptive parents, were incompatible with the couple’s rights under articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998.
The House of Lords so held (Lord Walker of Gestingthorpe dissenting) in allowing an appeal by the prospective adoptive parents from a dismissal by the Court of Appeal in Northern Ireland (Kerr LCJ, Higgins and Girvan LJJ) [2007] NICA 20; [2007] NI 251 of their appeal against a decision of Gillen J, sitting in the Family Division of the High Court in Northern Ireland on 6 April 2006, by which he dismissed their application for a declaration that the 1987 Order contravened the Convention. 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.
LORD HOFFMANN said that it was one thing to say that, in general terms, married couples were more likely to be suitable adoptive parents than unmarried ones. It was altogether another to say that one might rationally assume that no unmarried couple could be suitable adoptive parents. The question for the court was whether concerns about upholding the institution of marriage 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. The question of whether unmarried couples should be allowed to adopt raised a question of social policy which was in principle a matter for the legislature. But that did not mean that Parliament was entitled to discriminate in any case which could be described as social policy. The discrimination had at least to have a rational basis. In the instant case, it seemed to be based upon a straightforward fallacy, namely, that a reasonable generalisation could be turned into an irrebuttable presumption for individual cases.
When considering the recent case law of the European Court of Human Rights, and in particular E B v France (Application No 43546/02) (unreported), 22 January 2008, it seemed likely that if the issue were to go to Strasbourg the court would hold that discrimination against a couple who wished to adopt a child on the ground that they were not married would violate article 14 of the Convention. But what if the court were to revert to its earlier position, held in Fretté v France (2002) 38 EHRR 438, and say that such matters were delicate questions, capable of arousing religious sensibilities in many member states, and should therefore be left to the national “margin of appreciation”? As the House had affirmed in In re McKerr [2004] UKHL 12; [2004] 1 WLR 807 “Convention rights” within the meaning of the 1998 Act 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. In such a case, 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 legislature in the way which appeared appropriate for the United Kingdom. There was no principle by which they were automatically appropriated by the legislative branch. It followed that the House was free to give, in the interpretation of the 1998 Act, what it considered to be a principled and rational interpretation to the concept of discrimination on grounds of marital status. For those reasons, notwithstanding art 14 of the 1987 Order, the applicants were entitled to apply to adopt the child.
LORD HOPE, BARONESS HALE and LORD MANCE delivered concurring opinions. LORD WALKER delivered a dissenting opinion.
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Appearances: John O'Hara QC and Cathy Hughes (Emmet J Kelly & Co, Banbridge) for the parents; Bernard McCloskey QC and David McMillan (Solicitors Office, Department of Finance and Personnel, Belfast) for the Crown; Michael Lavery QC and Gregory McGuigan (Official Solicitor) for the Official Solicitor, Belfast.
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