Senior judges today paved the way for same-sex and unmarried couples to adopt children in Northern Ireland.
The Court of Appeal dismissed a bid by the North’s department of health to overturn a landmark ruling that the prohibition is unlawful. However, a further challenge may now be mounted at the Supreme Court in London.
In October last year the ban based on relationship status was held to discriminate against those in civil partnerships and to breach their human rights. A High Court judge found excluding some would-be parents solely on their relationship status narrowed the pool of potential adopters and could not be in the best interests of children.
His verdict came in a legal challenge mounted by the Northern Ireland Human Rights Commission. The body is seeking to force a legislative change to bring adoption laws into line with the rest of the UK.
Unmarried couples in England, Scotland and Wales can apply jointly to be considered for adoption, irrespective of sexual orientation. But anyone unmarried in Northern Ireland is currently only eligible for consideration as an individual. Those in civil partnerships cannot apply either individually or as a couple.
Judicial review proceedings centred on the blanket ban imposed on same-sex and unmarried couples by the Adoption (Northern Ireland) Order 1987.
The Commission was backed by an unidentified lesbian woman who wants to be able to adopt her partner’s biological child. The women, who have been in a relationship for four years, also wish to enter a civil partnership to signify their commitment.
Attorney General John Larkin QC appealed against the High Court ruling on behalf of the Department. He argued that the current criteria is lawful, appropriate, had public support is in the best interests of children.
But Lord Justice Girvan today stated: “The Department has put forward no justification to exclude same sex couples as parties eligible to adopt as a couple.” He also held that no proper explanation was advanced for why same sex partners being rendered ineligible once they publicly cement their relationship. “This cannot provide a rational basis or justification for the differential treatment of those in a civil partnership compared to same sex couples outside a civil partnership.”
The judge, sitting with Lord Chief Justice Sir Declan Morghan and Lord Justice Coghlin, expressed regret that until recently the Department’s website failed to give correct advice on the issue. “If it is to avoid being misleading Departmental guidance must take account of the effect of the law as it currently stands,” he said. “It must this take account of the outcome of the present appeal.”
Following confirmation that the challenge had been dismissed a barrister for the Department indicated that a further appeal to the Supreme Court may be sought.
The Commission’s Chief Commissioner, Professor Michael O’Flaherty, welcomed the verdict. He said: “It means that Northern Ireland law is in line with the rest of the UK and means that couples who are not married, those in civil partnerships and same sex couples will now be allowed to apply to be considered as adoptive parents.
“The Court has agreed with the Commission that preventing someone from even being considered to adopt because of their relationship status is a discriminatory practice.”