Adoption Judicial Review – Catherine Couvert
Supreme Court says Edwin Poots must accept NI courts’ decisions on adoption
By Catherine Couvert
On 22 October 2013, the UK Supreme court laid to rest the long saga of the legal battle over adoption in Northern Ireland. Civil partners cannot be barred from adopting; unmarried people (gay and straight) can adopt as a couple.
The Supreme Court has refused the Northern Ireland Health Minister’s request for permission to appeal, therefore confirming earlier judgements in Northern Ireland courts that his Department’s ban and guidance were unlawful.
Coming so soon after the High Court decision that the blanket ban on gay men donating blood was irrational [i], it is a reminder that, in the deadlock of Northern Ireland politics, the judiciary can sometimes serve to counterbalance conservative parties’ stranglehold on progressive change.
The long road to change
The matter of adoption by civil partners and unmarried couples has been debated in Northern Ireland since at least 2006, when efforts to modernise adoption legislation were brought to a standstill over this issue.
Subsequent Health Ministers sat on proposals to change the law despite a 2008 House of Lords decision where the judges had directed that the Northern Ireland Executive should bring the law into line with UK obligations as a matter of urgency. [ii] Finally, in 2011, the Northern Ireland Human Rights Commission initiated a legal challenge through a request for judicial review in the High Court. [iii]
An important decision
The judicial review hinged on a number of human rights and equality arguments, both for children and for people who wish to adopt. It was largely based on the Re P decision. The Commission’s case was supported by a statement from a lesbian woman who had considered applying for adoption but had decided against it on finding out that she would have to give up the chance to enter a civil partnership in order to go through the adoption process.
Defending the Department, the Attorney General for Northern Ireland challenged the Commission’s right to intervene and argued, among other things, that, as there is no ‘right to adopt’, no human rights were engaged.
In a dramatic twist, the judge adjourned the December hearing to allow the Commission to respond to the Attorney General’s argument that, contrary to what the Department had let the House of Lords believe, the civil partnership adoption clause had not been a mistake.
The case reconvened in April 2012. As well as the issue of adoption, the hearing debated the powers of the Northern Ireland Executive versus the role of the courts in the light of the Good Friday Agreement, and how far devolution allowed the Executive to differ from Britain.[iv]
Judge Treacy’s October 2012 decision was unequivocal: the ban on adoption was irrational, unjustifiable in the light of the Human Rights Act (articles 8 and 14) and the Re P case, and not in the best interest of children.[v]
He further clarified the legal position on 26 October: “(…) All individuals and couples, regardless of marriage status or sexual orientation are eligible to be considered as an adoptive parent(s)”, adding that any guidance published by the Department must accord with that declaration.
He concluded: “it is reasonable to assume that the Respondent will want to amend its guidance in a manner which reflects the judgment of the Court.”
The Court of Appeal’s firm and clear judgement
This did not happen, of course. Rather than amend the offending guidance, the Minister decided to appeal. The appeal was heard over two days in June this year by Lord Chief Justice Sir Declan Morgan, Lord Justice Coghlin and Lord Justice Girvan.
The hearing rehearsed similar arguments to those outlined at the judicial review, although more focused on: what constitutes the best interest of the child; whether it is logical for the Department to have a policy of placing children with heterosexual married couples only; and whether there is a need to widen the pool of potential adopters.
The Attorney General contended that the debate was not about sexuality after all, but about married couples providing a more stable environment than unmarried couples. When asked by the judge about civil partners, he replied that there was insufficient research as yet about the stability of civil partnerships. A case of ‘later maybe but not yet’, a marked change from his position in past hearings.
There were interesting debates about data, with the Department arguing that Northern Ireland has a sufficient pool of married couples willing to adopt to match the number of children up for adoption. Judge Morgan and the Commission’s Counsel, Monye Anyadike-Danes QC, refuted this. The judge remarked that the Department’s figures did not quite add up, and Ms Anyadike-Danes pointed out that adoption is not a numbers game but a case by case matter, where each child must be matched with the family that will best meet his or her individual needs.
The decision came swiftly, delivered with great clarity.[vi] This was an inspired judgement. As the Attorney General had been arguing that the European Court allowed lawmakers like the Northern Ireland Executive to distinguish between civil partnership and marriage [vii], the judges constructed their decision through using logical but lateral thinking.
Very roughly, the judgement runs like this. Human rights of children and families are engaged, and devolution does not therefore dispense the Executive from following European law. The House of Lords had established that unmarried couples should have the same treatment as married couples as regards adoption, a decision that the Department is not allowed to ignore. It is unlawful to discriminate on grounds of sexuality, therefore if unmarried heterosexual couples are allowed to be considered jointly for adoption, so should unmarried same sex couples. It is irrational that unmarried same sex couples are suitable adopters but suddenly become unsuitable by virtue of entering a civil partnership. Therefore, the Department must accept the earlier decision and amend its guidance or remove it.
No grounds for appeal
Despite growing calls for the Minister to stop spending public funds on the legal battle, [viii] the Department applied for leave to appeal to the Supreme Court.
On 13 September, the Appeal Court judges reaffirmed their decision. The Lord Chief Justice pointed out that, should the Supreme Court feel that it needed to reconsider its decision in Re Pin the light of recent European judgements [ix] as requested by the Attorney General, it was welcome to do so, but that otherwise the decision stands. [x]
The Supreme Court’s answer has now come loud and clear, “stating that the application did not satisfy the criteria of raising an arguable point of law of general public importance.”
Good outcomes – time to move on
The Northern Ireland Court of Appeal judgement in June should have left no-one in any doubt about the legal position. Whether the Health Minister likes it or not, there is no legal bar on unmarried couples adopting jointly or on civil partners adopting altogether.
Unfortunately, the message did not seem to have reached the Department or the media. As late as this October, it was being reported that social workers were advising civil partners not to pursue their applications but to go to Britain instead. [xi]
Now it is to be hoped that all confusion has finally been dispelled.
It is time for social workers to be left to do their jobs; for children to be matched with adoptive parents according to individual needs not dogma; for all unmarried couples and LGBT parents to be allowed to bring up their children free from censorious pronouncements; and for society to move forward. This would improve the quality of life of an awful lot of children, parents, grandparents and extended families.
Finally, the decision also means that the Northern Ireland Human Rights Commission retains the right to intervene in such cases, a right that had consistently been challenged by the Attorney General’s office in the adoption judicial review and appeal.
Maybe money well spent after all?
Read the court judgement here.