In re P and others (AP) (Appellants) (Northern Ireland)

Excluding every unmarried couple from eligibility to adopt jointly solely because they are unmarried is unjustified discrimination contrary to articles 8 and 14 of the European Convention on Human Rights. Unmarried status is a protected status. Although marriage may indicate commitment and is relevant when assessing suitability, it cannot rationally create an irrebuttable presumption that an unmarried couple is unsuitable.

Adoption legislation requiring the welfare of the particular child to be assessed individually cannot consistently impose a blanket marital-status bar. Where incompatible subordinate legislation requires that result, a court, as a public authority under the Human Rights Act 1998, must decline to enforce it.

An unmarried woman and her long-term male partner sought to adopt jointly a child whose natural mother was the woman. Their application was rejected at the eligibility stage because article 14 of the Adoption (Northern Ireland) Order 1987 permitted joint adoption only by a married couple.

Gillen J held that unmarried status fell within article 14 of the European Convention on Human Rights, but considered the difference in treatment justified by children’s interests. The Court of Appeal dismissed the appeal in [2007] NICA 20. Its majority rejected the status argument, and all three judges accepted justification.

The central issues before the House were whether being unmarried was a protected status, whether the exclusion engaged articles 8 and 14, whether the blanket rule was objectively justified and proportionate, and whether the domestic court could decline to enforce the subordinate legislation.

1. Disposition. Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Mance allowed the appeal. Lord Walker of Gestingthorpe dissented. The majority declared that the Family Division could not reject the appellants as prospective adoptive parents solely because they were unmarried.
2. Status and ambit. Per Lord Hoffmann, with the majority reaching the same conclusion, marriage is a legal status and absence of marriage is equally a status for article 14 purposes. Article 8 creates no freestanding right to adopt. Once domestic law creates an adoption process, however, eligibility within the sphere of family life must be administered without unjustified discrimination.
3. Justification. Per Lord Hoffmann, the state may regard marriage as important and may consider married couples generally more likely to provide stability. That generalisation could not rationally become an irrebuttable presumption that no unmarried couple was suitable. Article 9 of the Adoption (Northern Ireland) Order 1987 required an individual assessment of whether adoption by particular persons served the particular child’s welfare. Administrative convenience and legal certainty therefore could not justify the blanket rule.
4. The child’s interests. Lord Hope, Baroness Hale and Lord Mance emphasised that eligibility merely opened the door to rigorous assessment. Excluding an enduring unmarried couple at the outset could deprive a child of two legal parents even where adoption by that couple was in the child’s best interests. Marriage and the couple’s reasons for remaining unmarried could be scrutinised when suitability, stability and welfare were assessed. They could not determine eligibility conclusively.
5. Domestic Convention rights. Lord Hoffmann reasoned that a Strasbourg ruling placing an issue within a state’s margin of appreciation leaves the national authorities to decide it. It does not allocate the decision automatically to the legislature. Lord Hope, Baroness Hale and Lord Mance agreed that domestic courts must determine the meaning and application of the Convention rights incorporated by the Human Rights Act 1998, while giving proper weight to institutional competence and relevant Strasbourg jurisprudence.
6. Subordinate legislation. The 1987 Order was subordinate legislation. Section 6(2) of the Human Rights Act 1998 therefore did not require the court to enforce its incompatible restriction. The court was obliged to act compatibly with Convention rights and decline to apply the marital-status bar.
7. Dissent. Lord Walker would have dismissed the appeal. He considered the Strasbourg position insufficiently clear, the proposed change appropriate for a democratically elected legislature, and immediate judicial disapplication liable to create practical difficulties. He would have left the matter to the Northern Ireland Assembly, subject to reconsideration if a clear European consensus emerged.

1. House of Lords: By a majority of four to one, allowed the appeal and reversed the Court of Appeal’s decision. It declared that the appellants could not be excluded from applying to adopt solely because they were unmarried.
2. Court of Appeal in Northern Ireland: Dismissed the appeal in [2007] NICA 20. The Lord Chief Justice and Higgins LJ held that unmarried status was not protected status; all three judges held that the distinction was justified.
3. Family Division of the High Court of Justice in Northern Ireland: Gillen J accepted that being unmarried was a status but held that limiting joint adoption to married couples was justified in the interests of children.