Boris Ignachkov Legal Principles and Key Points
- In the case of In Re G Adoption: Unmarried couple 2008 UKHL 38, the House of Lords declared that it was unlawful or the Family Division of the High Court of Justice in Northern Ireland to reject the appellants as prospective adoptive parents on the ground only that they were not married, notwithstanding the Adoption (Northern Ireland) Order 1987 Art.14
Facts of the Case
- The appellants (P and F) were appealing against a decision rejecting them as prospective adoptive parents.
- P and F had been living together for more than 10 years and decided to adopt a 10-year-old child of whom F was the natural mother.
- F was not the natural father, but he and P treated the child as a member of the family.
- The unmarried couple submitted that marriage or its absence was a status within the meaning of the European Convention on Human Rights 1950 Art.14 and that the rejection of adoption contravened their rights to respect of family life under Art.8.
- They further argued that Art.8, taken in conjunction with Art.14 of the 1987 Order, should not be applied by the court where it was considering whether they were eligible to be considered as adoptive parents as it was discriminatory.
Issues in In Re G Adoption; Unmarried couple 2008 UKHL 38
- Did the status of being unmarried allow the court to reject the adoption application?
Held by House of Lords (Northern Ireland)
- Appel allowed.
Lord Hoffmann
- Lord Hoffmann explained at [16] that it is justifiable for a state to view married couples as generally being better suited for adoption of children over unmarried couples however he stated it is not rational to adopt a ‘bright line rule’ between married and unmarried couples as it cannot be justified based on administrative convenience or legal certainty.
- “It is one thing to say that, in general terms, married couples are more likely to be suitable adoptive parents than unmarried ones. It is altogether another to say that one may rationally assume that no unmarried couple can be suitable adoptive parents. Such an irrebuttable presumption defies everyday experience. The Crown suggested that, as they could easily marry if they chose, the very fact that they declined to do so showed that they could not be suitable adoptive parents. I would agree that the fact that a couple do not wish to undertake the obligations of marriage is a factor to be considered by the court in assessing the likely stability of their relationship and its impact upon the long term welfare of the child. Once again, however, I do not see how this can be rationally elevated to an irrebuttable presumption of unsuitability.” [18]
Sir Nicholas Bratza (Dissenting)
- “On the question of proportionality, we might conceivably accept the Government’s view that some margin of appreciation should be afforded to States in the sensitive area of adoption by homosexuals. It is not for the Court to take decisions (or pass moral judgment) instead of States in an area which is also a subject of controversy in many Council of Europe member States, especially as the views of the French administrative courts also seem to be divided. Neither is it for the Court to express preference for any type of family model. On the other hand, the reference in the present judgment to the lack of ‘common ground’ in the contracting States or ‘uniform principles’ on adoption by homosexuals …, which paves the way for States to be given total discretion, seems to us to be irrelevant, at variance with the Court’s case-law relating to Article 14 of the Convention, and when couched in such general terms, liable to take the protection of fundamental rights backwards.
- It is the Court’s task to secure the rights guaranteed by the Convention. It must supervise the conditions in which Article 14 of the Convention is applied and consider therefore whether there was a reasonable, proportionate relationship in the instant case between the methods used — the total prohibition of adoption by homosexual parents — and the aim pursued — to protect children.” [21]
