On 18 October, the High Court allowed the application for Judicial Review brought by the Northern Ireland Human Rights Commission, (NIHRC),  NIQB 77 and held that the eligibility criteria for adoption within Articles 14 and 15 of the Adoption (Northern Ireland) Order 1987 No 2203 (NI 22) were unjustifiably discriminatory, in breach of Articles 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms.
The court also held that the guidance provided by the Department of Health, as it currently stands, clearly does not appropriately reflect the true state of the law, and in particular the judgment in Re: P  UKHL 38. This judgement was definitive in deciding that the difference in treatment created by Article 14 of the 1987 Order was unjustifiably discriminatory and represented a breach of Article 8 in conjunction with Article 14 ECHR. The court noted that in failing to clarify the true legal position of unmarried couples who wish to adopt jointly, the Department have perpetuated the breaches identified in Re P.
The NIHRC has statutory responsibility for reviewing the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights. Although its locus standi was challenged, the court held that it could act on two counts: on affidavit evidence, C was a victim of an illegal act; and under s71(2b)(c) of the Justice and Security (Northern Ireland) Act 2007, the Commission had a duty to pre-empt and prevent potential human rights violations such as this.
The House of Lords judgment in Re P on 18 June 2008 reversed the ruling of the Court of Appeal in Northern Ireland and granted a declaration that it is unlawful for the Family Division of the High Court in Northern Ireland to reject the applicants for adoption as prospective adoptive parents on the ground only that they are not married. The NIHRC then entered into correspondence with the Minister of Health in 2008, essentially requesting that the Minister update the Department’s plans in line with Re P. However, no answer was received and in April, the proposed Adoption and Children Bill (which it was assumed would deal with the issues raised in Re P) was postponed indefinitely.
Subsequent correspondence with the OFM/DFM (Office of the First Minister and Deputy First Minister) in August 2010 drew the response that his role was limited to highlighting issues, but not to challenge executive decisions. Having expended all possible options, and in view of the perceived on-going human rights violations, the Commission considered that it had no option but to challenge the prevailing status quo through the instant proceedings.
During the institution of these proceedings, NIHRC was contacted by C who informed them [at para. 15] of the fact that if she and her partner entered a civil partnership,
‘not only could [she and her] partner . . . not even apply to be considered for adoption as a couple, but that should [they] enter a Civil Partnership, neither of [them] can ever adopt, either as a couple or as individuals’.
The court summed up the position, stating [at para.68] that despite the House of Lords ruling in Re P that the status of being unmarried should not act as a bar to applying to adopt, under the current law in Northern Ireland, the only circumstances in which one can adopt are:
a. If you are a married couple, you can only adopt as a couple;
b. If you are an unmarried person, you can only adopt as an individual;
c. Therefore, if you are an unmarried person, you are not eligible to adopt as a couple. This is the state of affairs which was addressed in Re P and ruled unlawful and it is contended here that the ruling in Re P has not been effectively implemented with the effect that there remains an impermissible bar to applying to adopt if you are an unmarried couple.
d. If you are an unmarried person who has entered a Civil Partnership, you may not apply to adopt either as an individual or as a couple.
The court stated [at para. 79] that:
‘couples who have entered a civil partnership who enjoy all these legal rights should be even more capable of assuaging these concerns than other unmarried couples. In respect of gay and lesbian couples either in or hoping to enter a civil partnership, such as C in these proceedings, their Art 8 rights are also affected in relation to the effect of the eligibility criteria on their right to choose to enter into a civil partnership…
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. In pursuance of public expression of their commitment to one another they lose the legal opportunity that they had previously enjoyed. Thus Article 8/Article 14 are clearly engaged on all of the grounds above.’
The court could find no rational basis [at para.80] for the respondent’s contention that the current eligibility criteria serve the best interests of the child, stating [at para.81] that
‘It cannot be in the best interests of a child to deny that child of the full benefits of having two fully legal adoptive parents.’
It is reported, here, that the court’s decision was broadly welcomed by most of the political parties, but that the Health Minister has announced his intention ‘to urgently appeal’ the judgement, stating
‘This judicial review has already delayed plans to introduce a new Adoption and Children Bill in the Assembly and I fear that this will lead to further delay’.
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