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P & Ors, Re (Northern Ireland)

P & Ors, Re (Northern Ireland)

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The question in this case is whether it is consistent with Convention rights as defined in section 1(1) of the Human Rights Act 1998 for a couple to be excluded from consideration as adoptive parents of a child on the ground only that they are not married. The woman is the natural mother of the child. The man is not the father but he and the woman have been living together for some years and treat the child as a member of the family. There is some evidence before the House about the nature of their relationship but there have been no findings by the court because the application has been rejected in limine on the grounds that they are not married to each other.

The legal obstacle to their adoption application is article 14 of the Adoption (Northern Ireland) Order 1987 (SI 1987/2203(NI 22)):

(1) An adoption order shall not be made on the application of more than one person except in the circumstances specified in paragraph[s] (2) …

(2) An adoption order may be made on the application of a married couple where both the husband and the wife have attained the age of 21 years.

On the other hand, section 6(1) of the 1998 Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right and the Family Division of the High Court is for this purpose a public authority. If the 1987 Order were primary legislation, section 6(2) would require the court nevertheless to give effect to it. But the Order is not primary legislation as defined in section 21(1) of the 1998 Act and is therefore overridden by Convention rights.

The appellants rely upon article 14, which provides that the—

"enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The appellants say that marriage (or its absence) is a status and that article 14 discriminates them in respect of the right set forth in article 8, namely, respect for their private and family life. The Crown, which has been joined as a respondent to the application, submits that being unmarried is not a status within the meaning of article 14 of the Convention. If that is wrong, the Crown accepts that the right to adopt a child falls within the ambit of article 8, but denies that the 1987 Order is discriminatory. It says that there are relevant and material differences between married and unmarried couples which justify the distinction.

In the Family Division, Gillen J accepted that being unmarried was a status but said that the difference in treatment could be justified as being in the best interests of children. In the Court of Appeal, the Lord Chief Justice did not think that being unmarried was a status…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] UKHL 38
Decision Date