Northern Ireland blanket ban on adoption by civil partners and on unmarried partners adopting as a couple is unjustifiable.
A guest post by Catherine Couvert.
Mr Justice Treacy in the High Court of Justice in Northern Ireland today gave a landmark judgement on a judicial review regarding the blanket ban on adoption by civil partners and on unmarried partners adopting as a couple.
His judgement was unequivocal: the blanket ban is irrational, unjustifiable in the light of the Human Rights Act (articles 8 and 14) and a previous House of Lords case (Re P) and not in the best interest of children.
Civil partners
On civil partners, the judge said:
“The present legislation essentially entails that a gay or lesbian person must choose between being eligible to adopt, or affirming their relationship in public via a civil partnership ceremony.”
He argued that, if marriage shows a commitment to a lifelong partnership which is in the best interest of children, then so does civil partnership. Civil partnership gives the same legal rights as marriage, including the right to live in the family home, the right to financial support when separating and succession rights on the death of a partner. There is no logical reason why entering into a civil partnership should mean people become automatically ineligible to adopt when they are able to adopt as an unmarried person.
Unmarried couples
On unmarried couples (both gay and heterosexual), Judge Treacy said that, although it is legal for the State to treat marriage as preferable in the interest of society in some cases (for example, as providing greater stability to families) it does not automatically follow that unmarried couples are less suitable adopters. Adoption should be considered case by case, and it is in the best interest of the child to be adopted by both members of a couple rather than one partner only.
The current situation, where one partner can be the adopter and the other partner can ask for a residence or guardianship order, does not provide as much security for an adopted child.
He also said that current Health Department guidance that unmarried parents should seek legal advice, is misleading, as the House of Lords case (Re P) makes it clear that unmarried couples should be legally entitled to apply for adoption.
Devolution, human rights and the power of the courts
He responded to the Department’s arguments that the decision belonged to the Northern Ireland Assembly and Executive and that, because of devolution, they were entitled to differ from Britain.
His view is that, in cases where the Human Rights Act is engaged if, due to cultural differences of opinion, it is difficult for the Assembly and Executive to make changes to the law, it is proper that the House of Lords’ decisions must be followed, that the Northern Ireland Human Rights Commission can intervene and that judges can make decisions to change the law.
In this case, the Health Department had failed to change the adoption legislation although the House of Lords had required it to do so in 2008.
Adopters provide an invaluable service
In his conclusion, Judge Treacy said:
“Adopting a child is no small undertaking. This is even more so nowadays when the profile of children who need adoptive families has changed dramatically. Baroness Hale pointed out in Re P that the adoption of healthy babies (the traditional adoption) and adoption by step-parents are both becoming less common, while adoption of ‘looked after’ children is a more pressing need. Looked after children who require permanent adoptive homes tend to be older and often have special needs. They also often retain some links with their biological families. A loving, permanent, stable home is infinitely preferable to growing up in care. The potential benefit to a child adopted in such circumstances is immeasurable. As well as a huge benefit to the child, these adopters also provide an invaluable service to the State. No relationship is perfect and while there are benefits to an adopted child in entering a relationship where a web of legal rights exists between the parents, that web is no guarantee of a lifelong, stable, committed relationship. The most important consideration is that decisions are made in the best interests of the child. As the First Division of the Court of Session observed in T there can be no more fundamental principle in adoption cases than that it is the duty of the court to safeguard and promote the interests of the child. Issues relating to the sexual orientation, lifestyle, race, religion or other characteristics of the parties involved must of course be taken into account as part of the circumstances. But they cannot be allowed to prevail over what is in the best interests of the child.”
What next?
Judge Treacy has asked both parties, the Northern Ireland Human Rights Commission and the Department of Health, to agree on how to remedy the illegality of the law as it stands. He expects these negotiations before a final hearing next Thursday or at the earliest alternative date possible.
The Department is considering whether to appeal.
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Read the judgement here: The Northern Ireland Human Rights Commission’s Application [2012] NIQB 77
Previous posts by Catherine Couvert providing analysis of these proceedings appear here and here.