P & Ors, Re (Northern Ireland)

The House of Lords held that the absolute bar in article 14 of the Adoption (Northern Ireland) Order 1987 to joint adoption by unmarried couples is incompatible with Convention rights as incorporated by the Human Rights Act 1998. The court treated lack of marital status as a "status" for the purposes of Article 14 ECHR and concluded that a bright-line rule excluding all unmarried couples from consideration cannot be objectively and reasonably justified where article 9 of the 1987 Order requires a case-by-case inquiry into the child's best interests. The Family Division, as a public authority under section 6(1) HRA 1998, may not reject prospective adopters solely because they are not married.

Key provisions considered: Adoption (Northern Ireland) Order 1987 (article 14 and article 9) and the Human Rights Act 1998 (notably sections 2 and 6). The court gave weight to Strasbourg jurisprudence (including E.B. v France) but emphasised that where Strasbourg would leave a margin of appreciation the domestic courts must nevertheless form their own view of Convention rights for domestic application.

Background and parties:

• The appellants were an unmarried couple living together for many years; the woman was the natural mother of the child and the man was her partner. They sought a declaration that articles 14 and 15 of the Adoption (Northern Ireland) Order 1987 should not be applied to exclude them from eligibility to be considered jointly as adoptive parents.
• The Family Division refused the application in limine on the basis that article 14 limited joint applications to married couples; the Court of Appeal upheld that decision. The case came to the House of Lords on appeal from [2007] NICA 20.

Nature of the claim / relief sought: A declaration that it is unlawful for the Family Division to refuse to consider joint adoption applications from unmarried couples on the sole ground that they are not married, on the basis that article 14 of the 1987 Order is incompatible with Articles 8 and 14 ECHR as incorporated by the Human Rights Act 1998.

Issues framed by the court:

• Whether "not being married" constitutes a status for the purposes of Article 14 ECHR;
• Whether the restriction of eligibility in article 14 engages Article 8 taken with Article 14;
• If engaged, whether the difference in treatment is objectively and reasonably justified and proportionate;
• What weight to give to Strasbourg jurisprudence and the margin of appreciation where the European Court has not laid down a single uniform rule; and
• The domestic effect of the Human Rights Act 1998 when subordinate legislation is alleged to be incompatible with Convention rights.

Court's reasoning (concise):

• The majority (Lords Hoffmann, Hope, Hale and Mance) found that not being married is a status under Article 14 and that the denial of eligibility to joint adoption fell within the ambit of Article 8. A legal rule that operates as an irrebuttable presumption that no unmarried couple can ever be suitable adoptive parents was held to be irrational and disproportionate because it prevents the mandatory case-by-case welfare inquiry required by article 9 of the 1987 Order.
• The majority considered Strasbourg decisions (including Fretté and E.B.) and concluded that although Strasbourg may afford a margin of appreciation in sensitive social matters, where that margin exists domestic courts must still form their own view under the Human Rights Act. Recent Strasbourg authority pointed in favour of strict scrutiny of distinctions based on status in adoption matters.
• The court declared it unlawful for the Family Division to reject prospective adopters solely because they were not married, leaving assessment of suitability and the child's best interests to the ordinary article 9 process; the decision did not prescribe the merits of any eventual adoption order.
• Lord Walker dissented, emphasising deference to the legislature and the desirability of change by the Northern Ireland Assembly, and expressing caution about displacing settled social policy by judicial decision.

Result: The majority allowed the appeal and declared that the Family Division must not refuse to consider joint adoption applications from unmarried couples solely on the ground of non-marriage; practical issues of assessment and subordinate legislation remain matters for the competent authorities.

Appeal allowed. The majority held that article 14 of the Adoption (Northern Ireland) Order 1987, insofar as it requires the Family Division to refuse to consider a joint adoption application solely because the applicants are not married, is incompatible with Convention rights (Articles 8 and 14) as incorporated by the Human Rights Act 1998. The court reasoned that lack of marital status is a status under Article 14, that the bright-line exclusion is an irrebuttable presumption inconsistent with the statutory duty under article 9 to consider the child's best interests, and that the Family Division, as a public authority under section 6 HRA, must not act incompatibly with Convention rights by rejecting applicants in limine for that sole reason. A dissenting opinion urged deference to the legislature and the Northern Ireland Assembly.

Appeal to the House of Lords from the Court of Appeal in Northern Ireland: [2007] NICA 20. The House of Lords allowed the appeal and made the declaration sought.