Adoption, unmarried parents, civil partners and a welcome judicial review

I am very pleased to post this guest article by Catherine Couvert.  A feminist and an LGBT and human rights activist, Catherine works in a Belfast NGO as a Publications Officer, and writes here in a personal capacity.

Adoption, unmarried parents, civil partners and a welcome judicial review

The Northern Ireland Human Rights Commission has brought a legal challenge to the Belfast High Court against the failure of the Northern Ireland Department of Health to update local adoption laws[i].  The grounds of the challenge are that this breaches the human rights of same-sex families and unmarried heterosexual families and is not in the best interest of children[ii]. The case is being heard by Mr Justice Treacy, with Monye Anyadike-Danes QC representing the Commission and the Attorney General John Larkin QC representing the Department of Health.

The hearing started on 12 December 2011 and was adjourned two days later. What could have been a fairly straightforward three-day hearing has turned into a veritable court drama which would be farcical if it did not have such serious implications for real families and real children.

The case

My analysis of the social and political implications of this case is not that of a lawyer but of a lesbian mother involved in policy work on LGBT families for over ten years, and who has been following the adoption law debate closely since it raised its head in 2006.

As I understand it, the Commission’s case mainly centres on the following grounds:

–          the law as it stands discriminates against unmarried partners and civil partners: unmarried partners are not allowed to adopt as a couple, only one partner can be the adoptive parent; civil partners are not allowed to adopt at all, even as individuals;

–          it is not in the best interest of children to be officially adopted by one person only if they are effectively cared for by an unmarried couple and could be given the security of two legal guardians;

–          the blanket ban on civil partners is particularly discriminatory and against the right to private and family life under the Human Rights Act, as the Act has been widely interpreted as including the right to form a family;

–          automatically excluding a group of potential adopters is not in the best interest of children, when the pool of people coming forward to adopt is small and many children are left in care for long periods of time.  Selection of potential adopters should be done by social services as part of the assessment process.

In addition, the Commission’s counsel pointed out that the ban on civil partners adopting is based on a contradiction in the Civil Partnership Act as it operates in Northern Ireland.  This point, which created great confusion in the court leading to an adjournment, deserves more explanation.

When is a mistake not a mistake?

The Civil Partnership Act included clauses that made amendments to adoption legislation.  Article 15 of the Adoption (NI) Order 1987 as amended by the Civil Partnership Act says a person who is ‘not married or a civil partner’ can adopt as a single person whereas Article 14, which was not amended, says only married people can adopt as a couple, but does not mention civil partners.  The result is that civil partners are totally barred from adopting, as they are excluded from both categories.

In England, Scotland and Wales, the Civil Partnership Act and adoption legislation are worded differently, allowing civil partners and unmarried partners to adopt jointly.

In that respect, in Northern Ireland, the Act is less advantageous to civil partners than to gay people who are not in a civil partnership, although the avowed purpose of the Civil Partnership Act had been to strengthen rights. In a case involving an unmarried heterosexual couple that went to the House of Lords in 2008 (the Re P case[iii]), the Law Lords concluded that this must have been an unintended anomaly. For example, Baroness Hale of Richmond said: ‘This must have been a mistake. It means that registered civil partners have been totally excluded from adopting. It is difficult to see how this could survive a challenge under article 14 of the European Convention’.

The Department and the Attorney General now argue that the clauses were not a mistake, but were introduced intentionally to prevent adoption laws being changed ‘by the back door’.  They raised this point on the second day of the hearing, arguing that the injunction should not be granted because this was expressly intended by legislators and therefore not within the judge’s powers to overturn.

On 14 December, Monye Anyadike-Danes QC asked for an adjournment to consider the implications of this new development.  Although the Attorney General described it as an ‘outrageous application’, Mr Justice Treacy granted the request[iv] due to the importance of the case.  Mr Justice Treacy pointed out that, if the clauses had indeed been intentional, this should have been pointed out to the Law Lords in the Re P case:

‘How on earth a massive mistake like that could have been communicated to the House of Lords and nobody saw fit to (correct it), I have great difficulty in understanding,’

The case is now adjourned until March.

Implications for children, potential adopters and gay families

As it stands, the law does not mean that gay or unmarried heterosexual people cannot adopt in Northern Ireland.  They have been able to do so for quite a while, but only as ‘single’ people.  As explained above, if they are in a couple, only one partner can be the adopter, which means that the children they adopt are denied the security of two legal guardians.

As explained above, civil partners cannot adopt at all because they are neither ‘married’ nor single. This convoluted situation stems from the fact that civil partnership was expressly distinguished from marriage[v] so as not to upset some faith groups, and that adoption law here has not followed changes made in Britain (although the Human Fertilisation and Embryology Act has changed the position of same sex parents whose children are born in a civil partnership or conceived in a clinic, and this applies to Northern Ireland[vi]).

Of course, it is not unheard of for children to be placed in foster care with gay couples in Northern Ireland, many gays and lesbians are parents and increasing numbers of children are born in same-sex families.

I have written elsewhere why I think the current state of play on adoption in Northern Ireland is pernicious[vii].  It is obviously unhelpful for the children who are adopted by unmarried and gay parents.  It is also bad for all prospective adoptive children, mainly because it is depriving adoption legislation of a much needed update of which the clauses on unmarried and same-sex adoptions are only a small part.

As a lesbian mother, I also know how undermining it is for the children of lesbian, gay and bisexual parents, because it perpetuates the idea that their families are second rate.

In terms of social policy, it also seems a badly thought-out own-goal to on one hand encourage same sex couples to tie the knot and on the other tell them that by doing so they will relinquish all chances of ever being able to adopt.

Adoption, church and state

Following a hastily arranged public consultation on proposals to change adoption laws in summer 2006 (when a letter writing campaign by some faith groups led to over 90 percent of responses saying that gay people and unmarried couples should not be allowed to adopt jointly) the Department has been stalling on the proposals to change the law.  Last year, Ulster Unionist Party’s Michael McGimpsey MLA, then Northern Ireland Minister for Health, revived the proposals minus the clauses on gay and unmarried people, arguing that it was better to remove the controversial aspects of the proposed legislation to make it easier to pass through the Assembly.  The current Health Minister, Democratic Unionist Party’s Edwin Poots MLA, is following the same route although the Department’s position seems to have hardened under his rule. The Commission’s argument is that the proposed law without the clauses would not be human rights compliant and would therefore be unconstitutional.

In 2007, John Larkin QC represented the Northern Bishops in another judicial review[viii] (brought by a number of small Protestant faith groups but lent weight by the Bishops’ intervention), this one about a law protecting people from discrimination on grounds of sexual orientation.  He argued that some of the clauses of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006[ix] would breach the human rights of faith groups.  One of the concerns he expressed on behalf of the bishops was in relation to adoption placement: ‘If a Catholic adoption agency was to consider a same sex couple as a potential adoptive couple, on the same terms as a married couple, this would be in contravention of the doctrinal principles.’[x]

The opposition of Catholic adoption agencies to the goods and services legislation in England has been well documented.  The government of the time, the Equality and Human Rights Commission and the Charity Commission held firm and the adoption agencies lost.[xi] I have no doubt that it is a good thing.

Denying equality for gay people may well not always be the main intention of these religion-inspired challenges – although I can’t see how it would not play a part – but our rights, and the rights of our children, are still too recent, fragile and incomplete to relax our vigilance.