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


SESSION 2007-08

[2008] UKHL 38

on appeal from: [2007]NICA 20




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

Appellate Committee

Lord Hoffmann

Lord Hope of Craighead

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Mance



John O'Hara QC

Cathy Hughes

(Instructed by Emmet J Kelly & Co)

First Respondents:

Bernard McCloskey QC

David McMillen

(Instructed by Departmental Solicitors Office)

Second Respondents:

Michael Lavery QC

Gregory McGuigan

(Instructed by Official Solicitor to the Supreme Court)

Hearing date:

23 AND 24 APRIL 2008






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

[2008] UKHL 38


My Lords,

1.  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.

2.  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.

3.  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.

4.  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.”

5.  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.

6.  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 because unmarried people were a formless group which might vary widely in their relevant characteristics. On the assumption that it fell within article 14, he agreed with the judge that the positions of married and unmarried couples were sufficiently different to justify the discrimination. Lord Justice Girvan did not deal with the status question but agreed with the Lord Chief Justice on justification and Lord Justice Higgins agreed with the Lord Chief Justice on both points.

7.  It is clear that being married is a status. In Von Lorang v Administrator of Austrian Property [1927] AC 641, 653 Viscount Haldane said:

“…[T]he marriage gives the husband and wife a new legal position from which flow both rights and obligations with regard to the rest of the public. The status so acquired may vary according to the laws of different communities.”

8.  If being married is a status, it must follow that not being married is a status. If you claim that you are no longer or never have been married to someone, you may apply for a “declaration as to marital status” under article 31 of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 (SI 1989/677(NI 4)). It is true that in respect of everything except not being married, unmarried people are a somewhat formless group. But, then, so are people who are not of noble birth, and yet birth is one of the grounds upon which article 14 expressly forbids discrimination. I therefore have no difficulty with the concept of being unmarried as a status within the meaning of article 14.

9.  The European Court of Justice does not seem to have had any difficulty either. In PM v United Kingdom (2005) 18 BHRC 668 the applicant complained that he was not allowed to deduct from his taxable income the payments he made for the maintenance of his daughter solely because he had not been married to the mother. The Court said:

“27…  This applicant differs from a married father only as regards the issue of marital status and may, for the purposes of this application, claim to be in an relevantly similar position.

28.  The justification for the difference in treatment relied on by the Government is the special regime of marriage which confers specific rights and obligations on those who choose to join it. The Court recalls that it has in some cases found that differences in treatment on the basis of marital status has had objective and reasonable justification… It may be noted however that as a general rule unmarried fathers, who have established family life with their children, can claim equal rights of contact and custody with married fathers.... In the present case, the applicant has been acknowledged as the father and has acted in that role. Given that he has financial obligations towards his daughter, which he has duly fulfilled, the Court perceives no reason for treating him differently from a married father, now divorced and separated from the mother, as regards the tax deductibility of those payments. The purpose of the tax deductions was purportedly to render it easier for married fathers to support a new family; it is not readily apparent why unmarried fathers, who undertook similar new relationships, would not have similar financial commitments equally requiring relief.

29.  The Court concludes therefore that there has been a violation of Article 14 of the Convention in conjunction with Article 1 of the first Protocol in this case.”

10.  The question, therefore, is whether unequal treatment can be justified. For this purpose, it is important to be precise about the way in which the distinction between married and unmarried couples operates. No couple, whether married or not, has a right to adopt a child. Article 9 of the1987 Order says that —

“In deciding on any course of action in relation to the adoption of a child, a court or adoption agency shall regard the welfare of the child as the most important consideration and shall —

(a)  have regard to all the circumstances, full consideration being given to—

(i)  the need to be satisfied that adoption, or adoption by a particular person or persons, will be in the best interests of the child; and

(ii)  the need to safeguard and promote the welfare of the child throughout his childhood; and

(iii)  the importance of providing the child with a stable and harmonious home; and

(b)  so far as practicable, first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.”

11.  Eligibility to apply for an adoption order is therefore only the first step on the road to adoption. The applicants must then be thoroughly scrutinised to satisfy the court that adoption by them is in the interests of the child and, among many other things, that they will be able to provide the child with a stable and harmonious home. But the effect of article 14 is that even if the court considers that an applicant couple pass all these tests - that adoption by them is plainly in the best interests of the child, that the child wishes to be adopted, that their relationship is loving, stable and harmonious - their virtues else, be they as pure as grace, as infinite as man may undergo — nevertheless, the court is bound to refuse the order and take a course which, ex hypothesi, is not in the best interests of the child on the sole ground that the applicants are not married.

12.  The argument for the Crown is that although there may be some hard or anomalous cases in which an impeccable couple wishes to adopt a child but has good reason for not wishing to marry, there are in general rational grounds for distinguishing between married and unmarried couples as a class. Statistics show that married couples, who have accepted a legal commitment to each other, tend to have more stable relationships than unmarried couples, whose relationships may vary from quasi-marital to ephemeral. So, for example, Gillen J said, in para 23, that a difference in treatment had a legitimate aim, namely, the best interests of “children” (sc. children generally) and that the interests of the applicants must be balanced against the interests of “the community as a whole". The Lord Chief Justice said, in para 38, that confining eligibility to married couples “has the obvious purpose of securing the familial stability that an adoptive child needs". Girvan LJ said, in para 26, that “drawing the line when [an unmarried] relationship should be functionally equated to a marriage calls for a policy decision". The 1987 Order “points to the national authorities’ conclusions that a married relationship represents the type of stable relationship … which the legislation considers necessary for the adoptive relationship” (my emphasis) (para 28).

13.  I would agree that, at the macro level, these are good arguments. The state is entitled to take the view that marriage is a very important institution and that in general it is better for children to be brought up by parents who are married to each other than by those who are not. If, therefore, it was rational to adopt a “bright line rule” to determine what class of people should adopt children, there would be much to be said for article 14. There is ample authority for the proposition that, for administrative or other reasons, social legislation may require such bright lines to be drawn. A frequently cited passage is from the judgment of the European Court of Human Rights in James v United Kingdom (1986) 8 EHRR 123, which concerned the provisions of the Leasehold Reform Act 1967 allowing tenants under long leases of houses below a given rateable value to buy the freehold at a favourable price. The Court said at paragraph 68:

“The applicants contended that the operation of the leasehold reform legislation is indiscriminate since it does not provide any machinery whereby the landlord can seek an independent consideration, in any particular case, of either the justification for enfranchisement or the principles on which the compensation is to be calculated, once only it is established that the tenancy is within the ambit of the legislation. They pointed to evident differences between leasehold tenants of modest housing in South Wales and the better off, middle-class tenants on their Estate in Belgravia, who on the whole could not be classified as needy or deserving of protection. In their submission, in order to avoid injustice for the landlord as well as the tenant, the legislation should have provided for judicial review going into the details and reasonableness of each proposed enfranchisement.

Such a system may have been possible, and indeed a proposal to this effect was made during the debates on the draft legislation However, Parliament chose instead to lay down broad and general categories within which the right of enfranchisement was to arise. The reason for this choice, according to the Government, was to avoid the uncertainty, litigation, expense and delay that would inevitably be caused for both tenants and landlords under a scheme of individual examination of each of many thousands of cases. Expropriation legislation of wide sweep, in particular if it implements a programme of social and economic reform, is hardly capable of doing entire justice in the diverse circumstances of the very large number of different individuals concerned.

It is in the first place for Parliament to assess the advantages and disadvantages involved in the various legislative alternatives available. In view of the fact that the legislation was estimated to be likely to affect 98 to 99 per cent of the one and a quarter million dwellinghouses held on long leases in England and Wales, the system chosen by Parliament cannot in itself be dismissed as irrational or inappropriate.”

14.  Similarly in R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 681, para 16, I said of widows’ pensions:

“Its justification…did not depend upon the greater need of any particular widow but upon a perception that older widows as a class were likely to be needier than older widowers as a class or, for that matter, younger widows as a class. No doubt means testing would have been more discriminating but the use of more complicated criteria increases the expense of administration and reduces take-up by those entitled.”

15.  Likewise, in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173, an applicant complained that because she was just under 25, she was paid job-seekers’ allowance at a lower rate than someone who had attained that age, even though their circumstances might be identical. I said at paragraph 41:

“Mr Gill emphasised that the twenty-fifth birthday was a very arbitrary line. There could be no relevant difference between a person the day before and the day after his or her birthday. That is true, but a line must be drawn somewhere. All that is necessary is that it should reflect a difference between the substantial majority of the people on either side of the line. If one wants to analyse the question pedantically, a person one day under 25 is in an analogous, indeed virtually identical, situation to a person aged 25 but there is an objective justification for such discrimination, namely the need for legal certainty and a workable rule.”

16.  The question therefore is whether in this case there is a rational basis for having any bright line rule. In my opinion, such a rule is quite irrational. In fact, it contradicts one of the fundamental principles stated in article 9, that the court is obliged to consider whether adoption “by particular…persons” will be in the best interest of the child. A bright line rule cannot be justified on the basis of the needs of administrative convenience or legal certainty, because the law requires the interests of each child to be examined on a case-by-case basis. Gillen J said that “the interests of these two individual applicants must be balanced against the interests of the community as a whole.” In this formulation the interests of the particular child, which article 9 declares to be the most important consideration, have disappeared from sight, sacrificed to a vague and distant utilitarian calculation. That seems to me to be wrong. If, as may turn out to be the case, it would be in the interests of the welfare of this child to be adopted by this couple, I can see no basis for denying the child this advantage in “the interests of the community as a whole".

17.  The South African Constitutional Court made a similar point in Du Toit and Vos v Minister for Welfare and Population Development (2002) 13 BHRC 187, paras 21-22, where the prospective adoptive parents were a same-sex couple:

“In their current form the impugned provisions exclude from their ambit potential joint adoptive parents who are unmarried, but who are partners in permanent same-sex life partnerships and who would otherwise meet the criteria set out in section 18 of the Child Care Act… Their exclusion surely defeats the very essence and social purpose of adoption which is to provide the stability, commitment, affection and support important to a child’s development, which can be offered by suitably qualified persons… Excluding partners in same sex life partnerships from adopting children jointly where they would otherwise be suitable to do so is in conflict with the principle [of the paramountcy of the interests of the child]… It is clear from the evidence in this case that even though persons such as the applicants are suitable to adopt children jointly and provide them with family care, they cannot do so. The impugned provisions … thus deprive children of the possibility of a loving and stable family life… The provisions of the Child Care Act thus fail to accord paramountcy to the best interests of the children…”

18.  It is one thing to say that, in general terms, married couples are more likely to be suitable adoptive parents than unmarried ones. It is altogether another to say that one may rationally assume that no unmarried couple can be suitable adoptive parents. Such an irrebuttable presumption defies everyday experience. The Crown suggested that, as they could easily marry if they chose, the very fact that they declined to do so showed that they could not be suitable adoptive parents. I would agree that the fact that a couple do not wish to undertake the obligations of marriage is a factor to be considered by the court in assessing the likely stability of their relationship and its impact upon the long term welfare of the child. Once again, however, I do not see how this can be rationally elevated to an irrebuttable presumption of unsuitability.

19.   What are the “interests of the community as a whole” of which Gillen J spoke? He was right to say that a proposal a year or two ago to amend the law by removing the requirement of marriage generated a great deal of passion. People were concerned that it would “send a signal” that the institution of marriage was undervalued, or encourage people not to marry on the ground that being unmarried would be no obstacle to adopting children. But the question for the court is whether these concerns have any rational basis, and, even more important, whether it is right to take them into account in a case in which the law gives priority to the interests of the individual child. In my opinion, neither of these questions can be given an affirmative answer.

20.  The judge and the Court of Appeal both emphasised that the question of whether unmarried couples should be allowed to adopt raised a question of social policy and that social policy was in principle a matter for the legislature. That is true in the sense that where questions of social policy admit of more than one rational choice, the courts will ordinarily regard that choice as being a matter for Parliament: compare the cases of James v United Kingdom (1986) 8 EHRR 123, R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 681 and R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, to which I have already referred. But that does not mean that Parliament is entitled to discriminate in any case which can be described as social policy. The discrimination must at least have a rational basis. In this case, it seems to me to be based upon a straightforward fallacy, namely, that a reasonable generalisation can be turned into an irrebuttable presumption for individual cases.

21.  The next question is whether your Lordships’ conclusion should be affected by the jurisprudence of the European Court of Human Rights, which section 2(1) of the 1998 Act says should be taken into account. In Fretté v France (2002) 38 EHRR 438 the applicant was a French homosexual who wished to be considered as an adoptive parent. French procedure required, first, that the prospective adoptive parent be authorised by an administrative court as a suitable person and then, secondly, that a family court decide whether the adoption of a particular child by that person would be in the interests of the child. French law allows adoption by individuals but the applicant was rejected at the first stage on the ground that he was a homosexual.

22.  The Court decided by a majority of 4 to 3 that it was within the margin of appreciation allowed to Member States of the Council of Europe to discriminate against homosexuals as applicants to be adoptive parents. The majority said:

“40.  …[T]he Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States…

41. It is indisputable that there is no common ground on the question. Although most of the Contracting States do not expressly prohibit homosexuals from adopting where single persons may adopt, it is not possible to find in the legal and social orders of the Contracting States uniform principles on these social issues on which opinions within a democratic society may reasonably differ widely. The Court considers it quite natural that the national authorities, whose duty it is in a democratic society also to consider, within the limits of their jurisdiction, the interests of society as a whole, should enjoy a wide margin of appreciation when they are asked to make rulings on such matters. By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. Since the delicate issues raised in the case, therefore, touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, a wide margin of appreciation must be left to the authorities of each State.”

23.  In a dissenting judgment, Sir Nicolas Bratza and two other judges said:

“…[O]n the question of proportionality, we might conceivably accept the Government’s view that some margin of appreciation should be afforded to States in the sensitive area of adoption by homosexuals. It is not for the Court to take decisions (or pass moral judgment) instead of States in an area which is also a subject of controversy in many Council of Europe member States, especially as the views of the French administrative courts also seem to be divided. Neither is it for the Court to express preference for any type of family model. On the other hand, the reference in the present judgment to the lack of ‘common ground’ in the contracting States or ‘uniform principles’ on adoption by homosexuals…, which paves the way for States to be given total discretion, seems to us to be irrelevant, at variance with the Court’s case-law relating to Article 14 of the Convention, and when couched in such general terms, liable to take the protection of fundamental rights backwards.

It is the Court’s task to secure the rights guaranteed by the Convention. It must supervise the conditions in which Article 14 of the Convention is applied and consider therefore whether there was a reasonable, proportionate relationship in the instant case between the methods used - the total prohibition of adoption by homosexual parents - and the aim pursued - to protect children. The Conseil d'Etat‘s judgment was a landmark decision but it failed to carry out a detailed, substantive assessment of proportionality and took no account of the situation of the persons concerned. The denial was absolute and it was issued without any other explanation than the applicant’s choice of lifestyle, seen in general and abstract terms and thus in itself taking the form of an irrebuttable presumption of an impediment to any plan to adopt whatsoever. This position fundamentally precludes any real consideration of the interests at stake and the possibility of finding any practical way of reconciling them.”