Human rights

Family law – Adoption – Discrimination – Eligibility - Unmarried couples

In Re P & Ors: HL (NI) (Lords Hoffmann, Hope of Craighead, Walker of Gestingthorpe, Mance, Baroness Hale of Richmond): 18 June 2008

The appellants (P and F), an unmarried couple, appealed against a decision ([2007] NICA 20, [2007] NI 251) ­rejecting them as prospective adoptive parents.

P and F had been living together for more than ten years and wished to adopt a ten-year-old child of whom P was the natural mother. F was not the natural father but he and P treated the child as a member of the family.

P and F submitted that (1) marriage (or its absence) was a status within the meaning of article 14 of the European Convention on Human Rights; (2) the conditions of article 14 of the Adoption (Northern Ireland) Order 1987 restricting the eligibility to be considered as adoptive parents to married couples or single people ­ contravened their rights to respect for family life under article 8, taken in conjunction with article 14 of the convention; (3) article 14 of the 1987 order should not be applied by the court when it was considering whether they were eligible to be considered as adoptive parents as it was ­ discriminatory. The respondent Crown submitted that in general there were rational grounds for distinguishing between married and unmarried ­ couples as a class.

Held: (Lord Walker dissenting in part) (1) It was clear that being married was a status and therefore it must follow that not being married was also a ­ status within the meaning of article 14 of the convention. (2) The question was therefore whether unequal treatment between unmarried and married couples could be justified. The state was entitled to take the view that marriage was a very important ­ institution and that in general it was better for children to be brought up by parents who were married to each other than by those who were not. If therefore it was rational to adopt a ‘bright line rule’ to determine what class of people should adopt children, there would be much to be said for article 14 of the order. However, to have such a rule in the present case was quite irrational, defied everyday experience, and contradicted one of the fundamental principles stated in article 9 of the order that the court was obliged to consider whether adoption ‘by particular persons’ would be in the best interests of the child, Du Toit v Minister for Welfare and Population Development 13 BHRC 187 Const Ct (SA) considered. (3) The question of whether unmarried ­ couples should be allowed to adopt raised questions of social policy and where such questions admit more than one choice, the court would ordinarily regard that choice as being a matter for Parliament, but that did not mean that Parliament was entitled to discriminate in any such case; the ­discrimination must at least have a rational basis. In the present case, it was based on a straightforward fallacy, namely that a reasonable generalisation could be turned into an irrebuttable presumption for individual cases. (4) No case had yet reached the European Court of Human Rights on the issue of discrimination that the present case raised. But bearing in mind recent jurisprudence in the area of sexual orientation and adoption, it seemed not at all unlikely that if the issue was raised, the European Court would hold that discrimination against a couple who wished to adopt a child on the ground that they were not married would violate article 14 of the convention. The effect of EB v France (43546/02) [2008] 1 FLR 850 ECHR (Grand Chamber) was to overrule the case of Frette v France (36515/97) [2003[ 2 FLR 9 ECHR and point ­ strongly in favour of the view that ­discrimination on the grounds of marital status in this area of the law was not acceptable and thus narrow the national margin of appreciation, EB and Frette considered. However, even if the European Court were to revert to its position in Frette, that should not inhibit a declaration by the UK court that article 14 of the 1987 order was unlawful discrimination. Convention rights within the meaning of the Human Rights Act 1998 were ­domestic not international rights, and in the interpretation of those domestic rights the UK courts had to take into account the decisions of the European Court. Thus the UK courts were not bound by such decisions. In a case where Strasbourg had deliberately declined to lay down an interpretation for all member states, as it does when it says that the question was within the margin of appreciation, it was for the court in the UK to interpret ­articles 8 and 14 of the convention and to apply the division between the ­decision-making powers of courts and Parliament in a way which appeared appropriate for the UK.

It followed that the court was free to give what it considered to be a ­principled and rational interpretation to the concept of discrimination on grounds of marital status. The court declared that notwithstanding article 14 of the 1987 Order, P and F were entitled to apply to adopt the child; it was unlawful for the Family Division of the High Court of Justice in Northern Ireland to reject P and F as prospective parents on the ground only that they were not married.

Appeal allowed.

John O’Hara QC, Cathy Hughes (instructed by Emmet J Kelly & Co) for the appellants; Bernard McCloskey QC, David McMillen (instructed by the in-house solicitor) for the first ­respondents; Michael Lavery QC, Gregory McGuigan (instructed by the official solicitor) for the second ­ respondents.