Adoption, gay and unmarried couples and the Good Friday Agreement

Guest poster, Catherine Couvert, offers this update on developments subsequent to her initial article at Rights NI.

Thursday 22 and Friday 23 March were interesting days in Belfast High Court as the Northern Ireland Human Rights Commission and DHSSPS counsels made their final submissions in the judicial review on adoption by unmarried couples and civil partners.

Mr Justice Treacy now has until 23 June to give his judgement, and has said that he will take his time in order to give full consideration to all aspects of the argument.

How did we get here?

It may seem like a straightforward decision.  To recap: in Northern Ireland, unlike Britain, only married couples are allowed to adopt jointly. Unmarried people (gay or straight) can only adopt as if they are single.

An apparent contradiction in the Northern Ireland version of the Civil Partnership Act means that if you enter a civil partnership you lose even that, and cannot adopt at all.  The DHSSPS (Northern Ireland’s Health Department) now says that this was intentional, although in a previous case (re P, in 2008[i]) at the House of Lords, the Department’s counsel had let the Law Lords believe that it had been a mistake.  In Re P the House of Lords exceptionally allowed an unmarried couple to adopt jointly and recommended that the Northern Ireland authorities take prompt action to make the relevant laws human rights compliant.

There is a lot of history to this case. The adoption law was due to change in 2006 but its progress was stalled when the Northern Ireland Assembly reconvened after a period of direct rule by the London government.  The proposals have been left hanging since. The implications go well beyond adoption cases that involve civil partners or unmarried couples.  This one clause in the proposed law is stopping the chance at new, more sophisticated ways of dealing with the relationship between birth parents, adoptive parents and children, new regulations on overseas adoption and other much needed changes.

For those who want to know more about how this has led to a judicial review rather than a debate in the Northern Ireland Assembly, an article by Kathryn Torney in the Detail[ii] is well worth a read.

The hearings (very) summarised

The Northern Ireland Human Rights Commission, having given the Department time to act on the House of Lords decision in re P, went to the High Court last year to try and push for change.  The counsel for the Commission, Monye Anyadike-Danes QC, says it is in the best interest of children in care to widen the pool of potential adopters and to give them the security of being legally adopted by both partners if the adoptive parents are a couple.

The hearing started in December but, after the Attorney General John Larkin QC, representing the Department, brought in the surprise argument that the ‘mistake’ in the Civil Partnership Act had been intended, the Commission was given until March to rethink its arguments[iii].

Mr Justice Treacy has been giving the case a sympathetic ear but whether this will transfer into a positive judgement hangs on how he interprets his powers within a complex set of laws.  Throughout the hearings, the current adoption law, Civil Partnership Act, Human Rights Act and European laws, the Northern Ireland Act (which stems from the Good Friday Agreement) and equality legislation have all been invoked.

The Attorney General says that the Department has no case to answer.  In particular, he argues that:

–          equality legislation about delivering services does not apply because adopting children is not a service;

–          there are no actual ‘victims’: the human right of respect for family life are not engaged because there is no actual constituted family, only the potential adoption of a potential child; the couple cited by the Commission are not civil partners, one partner can adopt and the other can seek a residence order; if they wanted to adopt as a couple they should have gone through the assessment process and then, if assigned a child, gone to court to ask for the right to adopt as a couple;

–          the European Court has made it clear that it cannot stop member States from distinguishing between marriage and civil partnership in relation to adoption; this was restated recently in a case involving a French lesbian couple and their child[iv];

–          the legal changes sought are controversial because of current views on marriage and the family in Northern Ireland;

–          the Department has no power to make the changes: under the Northern Ireland Act[v], devolved laws which are controversial must be put forward by the Executive Committee and passed by both unionist and nationalist majorities at the Assembly;

–          for the same reasons, the judge does not have the power to amend the law, and by doing so he would undermine democracy and devolution[vi].

The Commission counters:

–          the House of Lords judges were very clear that the current laws are against the human rights of respect for family life (Article 8 of the Human Rights Act) and protection from discrimination (Article 14) and that they are not in the best interest of children; the Department has failed in its promise to address their recommendations;

–          the human right to family life also involves the right to found a family[vii];

–          it is incompatible with children’s human rights to set arbitrary categories of people who are ineligible for assessment as potential adopters, and the Department has given no solid justification for this;

–          adoption establishes a lifelong legal relationship equal to that with a biological family, whereas residence orders only confer parental responsibility until the child is 16 or ceases to live under the same roof, therefore seeking a residence order for your partner’s adopted child does not guarantee the security of the relationship[viii];

–          there are actual ‘victims’ of the current situation: for example children waiting for adoption, gay couples who are unable to have a civil partnership in case the law does not change soon enough for them to be able to go through the adoption process, civil partners and unmarried couples who do not begin the adoption process because it is loaded against them, or children in kinship adoption cases;

–          it would be a waste of resources for social services to carry out assessments of couples who are not legally eligible for adoption, and then test their eligibility through the courts;

–          European Court judgements do not prevent a local judge from making a decision on local marriage/civil partnership/adoption and the judge has powers under the Northern Ireland Act if human rights are engaged;

–          the Department’s argument about wider social interests (such as different views on  the definition of the family) are not compelling because the change to society would be minimal whereas the human rights of the children and couples involved are fundamental.

So, where do we stand now?

During the hearings, Mr Justice Treacy seemed unconvinced by the Attorney General’s arguments that the Commission was misguided in thinking it had a case or that the Law Lords may have reached a different decision in re P if they had better understood the legal intricacies of devolution.

He said he found it difficult to see how the contradictory clauses in the Civil Partnership Act could have been dictated by the best interests of children rather than by homophobia, or that civil partnership, ‘a manifestation of commitment and stability’, would make a gay couple less eligible to adopt than cohabitation.

He indicated that he would prefer to make an initial judgement on whether the law as it stands is unlawful, and then hold another hearing to decide what remedy is available.

The decision will depend largely on whether he finds that a breach of human rights is sufficiently established and whether he thinks he has powers to amend the relevant laws rather than just send the ball back to the Executive and the Assembly.

 


[iv] See http://www.pinknews.co.uk/2012/03/19/french-gay-couple-lose-adoption-appeal-at-echr/  and http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/e4ca7ef017f8c045c1256849004787f5/3e53c51cb4bc2935c12579bf0048e0bb?OpenDocument .  It is worth noting that the French adoption case is slightly different because the French version of civil partnership (PACS), is open to both gay and straight couples and, although it does not allow the couple to adopt (or a partner to adopt the other partner’s biological child), it does not prohibit an individual partner from adopting a child.

[vi] The case referred to on the power of the courts versus the local assembly in a devolved region was Axa General Insurance v Lord Advocate [2011] UKSC 46.  For an explanation of the implications for Northern Ireland, see http://ukconstitutionallaw.org/2011/11/28/gordon-anthony-axa-a-view-from-northern-ireland/.

[vii] As ascertained in a European Court case involving artificial insemination: http://www.hrlrc.org.au/files/N022AWAWET/Dickson%20v%20UK.pdf

[viii] In this matter, another House of Lords case, re G, is of interest as it discussed the legal distinction between ‘biological parent’ and ‘psychological parent’: http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060726/child-1.htm.  For an analysis of Re G: http://www.familylawweek.co.uk/site.aspx?i=ed2147 (note that the Human Fertilisation and Embryology Act changed this in regard to children conceived within a civil partnership or in a registered clinic).

  • We’re now past the 23rd of June and I’d be grateful for any news of Mr Justice Treacy’s judicial review of the NIHRC case against the DHSSPS’s current bar on adoption by unmarried couples and civil partners in Northern Ireland?

    • Catherine Couvert

      Hi Peter
      Sorry about not replying earlier. There has been no judgement yet. Meanwhile, the Office of the Attorney General has requested and been granted leave to intervene as a third party in X and Others V Austria, a case before the European Court of Human Rights involving an Austrian couple wishing to adopt.
      The Attorney General’s Office is submitting that the issues raised in both cases are similar in that they engage articles 8 and 14 of the the European Convention and that the ECHR case will therefore have a bearing on Northern Ireland cases. The Attorney General proposes to offer ‘a comparative perspective from a common law country’ – although presumably only from Northern Ireland, and not from England, Scotland and Wales, which have a different position in that they permit adoption by civil partners and unmarried couples.
      I wish I was able to bring news of progress on the judicial review but unfortunately, in light of this, it is likely that the decision by Mr Justice Treacy is going to be delayed further.
      Anyone with further useful news on this?
      Thanks
      Catherine

      • Catherine Couvert

        Hi Peter. The judgement was today. Judge Treacy was unequivocal: a blanket ban on adoption by civil partners, or adoption by unmarried couples as a couple, is irrational, unjustifiable and not in the best interest of children.

  • Catherine Couvert