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

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24.  The majority judgment in Fretté seemed to suggest that in areas of life which involve “delicate issues” of sexual relationships, in which public opinion in many Member States showed strong and vocal prejudices and passions, the European Court would be reluctant to intervene. Instead, it would treat such decisions, however irrational, as falling within the national margin of appreciation.

25.  Very recently, however, the Court appears to have changed course. E.B. v France Application No 43546/02 (unreported), 22 January 2008, like Fretté, concerned an adoption application by a homosexual; this time a woman. Her application was rejected by the French administrative court on grounds which the European Court treated as having been based substantially upon her sexual orientation. It held that this constituted discrimination contrary to article 14:

“91.  …Where sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within Article 8…

93. In the Court’s opinion, if the reasons advanced for such a difference in treatment were based solely on considerations regarding the applicant’s sexual orientation this would amount to discrimination under the Convention…

96.  …the Court cannot but observe that, in rejecting the applicant’s application for authorisation to adopt, the domestic authorities made a distinction based on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention.”

26.  Although the majority did not expressly say so, the effect of the decision was, as Judge Costa pointed out in his dissent (at para 3) to overrule Fretté’s case. The margin of appreciation has been narrowed.

27.  It therefore seems to me not at all unlikely that if the issue in this case were to go to Strasbourg, the Court would hold that discrimination against a couple who wish to adopt a child on the ground that they are not married would violate article 14. That appears to have been the opinion of the Joint Committee on Human Rights of the United Kingdom Parliament in its 24th Report of Session 2001-02 (HL Paper 177; HC 979) on the Adoption and Children Bill, which had been amended in the House of Lords to exclude unmarried couples from becoming adoptive parents in the same way as Article 14 of the 1987 Order. The Committee said, in para 24, that the Fretté case—

“… provides no support for the view…that it could legitimately be regarded as necessary and proportionate to the aim of protecting the best interests of the child to prevent all unmarried couples, including mixed-sex couples, from being eligible to adopt, regardless of the merits of the individual case (my emphasis).”

28.  The same view was expressed by Dr Ursula Kilkelly of the University of Cork, author of The Child and the European Convention on Human Rights (1999), who was commissioned by the Northern Ireland Department of Health and Social Services and Public Safety to write a report on whether the 1987 Order was consistent with Convention Rights. She said:

“According to the European Court of Human Rights, discrimination on the grounds of marital status is particularly difficult to justify. Thus, the current provisions of the 1987 Order, which exclude unmarried couples from adoption, would appear prima facie to be incompatible with the Convention insofar as they constitute arbitrary discrimination on the grounds of marital status.”

29.  I therefore do not think that your Lordships should be inhibited from declaring that article 14 of the 1987 Order is unlawful discrimination, contrary to articles 8 and 14 of the Convention, by the thought that you might be going further than the Strasbourg court. But what if you were? Say the Strasbourg court were to revert to its position in Fretté and say that these are delicate questions, capable of arousing religious sensibilities in many Member States, and should therefore be left to the national “margin of appreciation"?

30.  My Lords, in my view this should make no difference. It is true that in a well known passage in R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, 350, Lord Bingham of Cornhill said:

“20. In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, para 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”

31.  These remarks were not, however, made in the context of a case in which the Strasbourg court has declared a question to be within the national margin of appreciation. That means that the question is one for the national authorities to decide for themselves and it follows that different Member States may well give different answers.

32.  It must be remembered that the Strasbourg Court is an international court, deciding whether a Member State, as a state, has complied with its duty in international law to accord to secure to everyone within its jurisdiction the rights and freedoms guaranteed by the Convention. Like all international tribunals, it is not concerned with the separation of powers within the Member State. When it says that a question is within the margin of appreciation of a Member State, it is not saying that the decision must be made by the legislature, the executive or the judiciary. That is a matter for the Member State.

33.  As this House affirmed in In re McKerr [2004] UKHL 12; [2004] 1 WLR 807, “Convention rights” within the meaning of the 1998 Act are domestic and not international rights. They are applicable in the domestic law of the United Kingdom and it is the duty of the courts to interpret them like any other statute. When section 6(1) says that it is unlawful for a public authority to act incompatibly with Convention rights, that means the domestic rights set out in the Schedule to the Act and reproducing the language of the international Convention.

34.  In the interpretation of these domestic rights, the courts must “take into account” the decisions of the Strasbourg court. This language makes it clear that the United Kingdom courts are not bound by such decisions; their first duty is to give effect to the domestic statute according to what they consider to be its proper meaning, even if its provisions are in the same language as the international instrument which is interpreted in Strasbourg.

35.  Nevertheless, as Lord Bingham indicated, there are good reasons why we should follow the interpretation adopted in Strasbourg. The best reason is the old rule of construction that when legislation is based upon an international treaty, the courts will try to construe the legislation in a way which does not put the United Kingdom in breach of its international obligations. If Strasbourg has decided that the international Convention confers a right, it would be unusual for a United Kingdom court to come to the conclusion that domestic Convention rights did not. Unless the Strasbourg court could be persuaded that it had been wrong (which has occasionally happened) the effect would be to result in a finding that the United Kingdom would be in breach of the Convention. Thus section 2(1) of the 1998 Act allows for the possibility of a dialogue between Strasbourg and the courts of the United Kingdom over the meaning of an article of the Convention but makes this likely to be a rare occurrence.

36.  Other reasons for following Strasbourg are ordinary respect for the decision of a foreign court on the same point and the general desirability of a uniform interpretation of the Convention in all Member States. But none of these considerations can apply in a case in which Strasbourg has deliberately declined to lay down an interpretation for all Member States, as it does when it says that the question is within the margin of appreciation.

37.  In such a case, it for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch.

38.   It follows, my Lords, that the House is free to give, in the interpretation of the 1998 Act, what it considers to be a principled and rational interpretation to the concept of discrimination on grounds of marital status. For the reasons I have given earlier, I would declare that notwithstanding article 14 of the Order, the appellants are entitled to apply to adopt the child. I say nothing about the conditions which their relationship should satisfy in order to justify the court in making an adoption order, since this is a matter for the court when it considers the interests of the child under article 9. Nor do I say that the fact that they are not married may not be relevant to that question. The House should in my opinion say only that it is unlawful for the Family Division to reject the applicants as prospective adoptive parents on the ground only that they are not married to each other.

LORD HOPE OF CRAIGHEAD

My Lords,

39.  Until comparatively recently the three jurisdictions in the United Kingdom were at one in restricting eligibility to be considered as adoptive parents to married couples or single people. That was the position in England and Wales until the law was reformed by section 50 of the Adoption and Children Act 2002, which came into force on 30 December 2005. It was the position in Scotland too until the law there was reformed by section 29 of the Adoption and Children (Scotland) Act 2007. When that Act comes fully into force the position will be that everywhere in Great Britain couples of every description, including same sex couples who are not civil partners of each other who are in an enduring family relationship, will be eligible as potential adopters.

40.  In Northern Ireland the position remains unchanged. Only married couples and single people who are not married or civil partners are eligible: Adoption (Northern Ireland) Order 1987 (SI 1987/2203 (NI 22)), article 14 and article 15 as amended by section 203(4) of the Civil Partnership Act 2004. It is to be noted that, while two people who are civil partners of each other are eligible as potential adopters in England and Wales and in Scotland, this is not the case in Northern Ireland. This is because the 2004 Act did not contain a provision, such as section 79(12) in relation to England and Wales, which extended the provisions of article 14 to civil partners. In fact perhaps due to an oversight, section 203(4) of the 2004 Act worked in the reverse direction because it excluded all civil partners, whether singly or as a couple, from eligibility.

41.  The appellants are a couple who are unmarried. They have been living together for more than ten years and wish to adopt a ten year old child of whom X is the natural mother and Y is her male partner. They invited the court to declare that the provisions of articles 14 and 15 should not be applied to them and that they are eligible to be considered as adoptive parents regardless of the fact that they are unmarried. As the question of eligibility only is in issue no other facts were made known to the court. So the case raises a short but highly sensitive issue of principle. It by no means follows that just because the law has now been changed in England and Wales by an Act of the United Kingdom Parliament and in Scotland by an Act of the Scottish Parliament it should be changed in Northern Ireland too. Nor, indeed, does it all follow that it should be changed by judicial decision rather than by the democratically elected Northern Ireland Assembly which now has responsibility for reforming the law on this subject, as the law of adoption is within its legislative competence: Northern Ireland Act 1998, section 6(1).

42.  The reform did not have an easy passage in England and Wales. In 1993 it was stated on behalf of, among others, the Welsh Office and the Lord Chancellor’s Department that the government did not intend to change the law which allowed adoption applications from married couples or single individuals: Adoption: The Future (November 1993, Cm 2288), para 4.39. That was how matters stood when the Adoption and Children Bill was introduced in the House Commons. But at third reading a free vote was allowed on an amendment which extended eligibility to unmarried couples, including those of the same sex. The amendment was controversial. It was reversed after a vigorous debate in the House of Lords by a majority against it of 34, re-instated in the House of Commons and finally agreed to in the House of Lords by a majority in favour of 31: Hansard, HL Debates, 5 November 2002, vol 640, cols 569, 621. Section 50 of the 2002 Act read with section 144(4) of that Act, as amended by section 79(12) of the Civil Partnership Act 2004, provides that couples who are unmarried as well as a married couple and two people who are civil partners of each other may apply. The expression “couples” in the case of those who are unmarried or not civil partners of each other means two people whether of different sexes or the same sex living as partners in an enduring family relationship: section 144(4).

43.  The Scottish Bill had a less troubled passage through the legislature than its English and Welsh counterpart. The Adoption and Children (Scotland) Act 2007 is not yet fully in force: see the Adoption and Children (Scotland) Act 2007 Commencement Order No 1 (SSI 2008/130). This is because much of the way it will work in practice depends on regulations, orders and court rules that have yet to be made. But section 29 of the 2007 Act provides that an adoption order may be made on the application of a couple if it is a relevant couple. The expression “relevant couple” includes persons who are living together as if husband and wife or civil partners in an enduring family relationship. This change in the law was the product of the work of the Adoption Policy Review Group, which was established by the Scottish Executive in April 2001.

44.  In her commentary on section 29 of the 2007 Act in Current Law Statutes the Group’s independent legal adviser, Alexandra Plumtree, states that this section was the only provision which attracted any real publicity during the progress of the Bill. But, as she points out, it was not controversial for social welfare or legal practitioners. Unmarried couples, including same sex ones, had been involved in adopting children for many years, even though only one of them could apply to the court for an adoption order. It had long been the practice for adoption agencies in these cases to assess the suitability of both members of the couple, leaving it to the couple to decide which one of them was to be the adopter: see T, Petitioner 1997 SLT 724 where the couple were of the same sex. The Adoption Policy Review Group recommended in its Phase II Report, Adoption: better choices for our children, presented on 6 June 2005, that joint adoption should be extended to all unmarried couples of the same and opposite sex, as this could make a contribution to extending the pool of adoptive families and because it was in favour of the law being substantially similar north and south of the border: paras 3.32-3.43. In its response which was also presented in June 2005, Secure and safe homes for our most vulnerable children, the Scottish Executive supported this recommendation. It said that it believed that the most important consideration was that the court could make decisions in the best interests of the child, and was not constrained by the status of the relationship between the adults.

45.  The strength of feeling on this issue in Northern Ireland is plain from the series of affidavits by Brenda Conlon, a civil servant in the Department of Health, Social Services and Public Safety referred to by my noble and learned friend Lord Walker of Gestingthorpe. The legislative power to amend the 1987 Order, which was made under section 1(3) of and Schedule 1, para 1(1)(b) to the Northern Ireland Act 1974, now lies with the Northern Ireland Assembly. In July 2006 the Minister for Health, Social Services and Public Safety issued for consultation “Adopting the Future", a strategy document setting out a proposed new approach to adoption in Northern Ireland. This initiative was said to have been driven by significant changes since the enactment of the 1987 Order in the number and profile of children needing adoption and in the wider legislative and social contexts which govern the delivery of children’s services. But, as Ms Conlon recognised in her fourth affidavit of 1 May 2007, the vast majority of responses were concerned with one issue, which was the proposal to extend joint adoption to civil partners and unmarried couples. Of these 95% were opposed to the proposal. Among the reasons given were that parenting by married couples was proven to provide the best outcomes for children and should be encouraged and that homosexuals were not suited for parenting a child. A striking feature of these responses is the lack of support for this proposal among the political parties in Northern Ireland.

46.  The gulf which appears to exist between those in the Department who are seeking to promote this measure and those who responded to the consultation is not dissimilar, except perhaps in scale, from that which emerged when the corresponding amendments were being proposed at Westminster and at Holyrood. The consultation process has shown that it cannot be taken for granted that a similar measure would receive the approval of the Northern Ireland Assembly. The Assembly can, if it wishes, decline to legislate. But it must be recognised that, if it decides to do so, it will be outside its competence to legislate in a way that is incompatible with any of the Convention rights: Northern Ireland Act 1998, section 6(2)(c). Then there are the courts. They have a vital part to play in this process. In the changed landscape that devolution has created, Parliament has decided that it is for the courts to adjudicate on issues of compatibility arising from Acts of the Assembly and the exercise of functions by the executive authorities: see section 79 of and Schedule 10 to the 1998 Act. The Family Division is a public authority. So it must act compatibly with the Convention rights, and the courts must ensure that it does so.

47.  In the light of this background it is clear that the choices that would have to be made, if a measure about eligibility for adoption were to be put before the Assembly, would be choices on an aspect of social policy. I think that it is clear too that these are choices about which opinions may reasonably differ in a modern democratic society. The choice is a particularly sensitive one because it is plain that it would not be possible, compatibly with articles 8 and 14 of the Convention, for the Assembly to extend eligibility to unmarried couples of the opposite sex without extending it to same sex unmarried couples also: see EB v France, application no 43546/02, 22 January 2008. In that case the Strasbourg court said that where a State had gone beyond its obligations under article 8 in creating a right to adopt it could not, in the application of that right, take discriminatory measures within the meaning of article 14: para 49. My first instinct therefore was to regard the issue of principle as one that ought to be taken by the legislature and not by the courts, for the reasons that I gave in R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326, 381.

48.  The Court of Appeal adopted the approach which I suggested in Kebilene. But I have come to the view that it is not determinative in this case. It is, of course, now well settled that the best guide as to whether the courts should deal with the issue is whether it lies within the field of social or economic policy on the one hand or of the constitutional responsibility which resides especially with them on the other: see, for example, R (Pro Life Alliance) v British Broadcasting Corporation [2003] UKHL 23; [2004] 1 AC 185, para 136, per Lord Walker of Gestingthorpe. The fact that the issue is a political issue too adds weight to the argument that, because it lies in the area of social policy, it is best left to the judgment of the legislature. But the reason why I differ from the Court of Appeal’s approach is that it lies in the latter area as well. Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen. It is with them that the ultimate safeguard against discrimination rests.

49.  The appellants’ case is that articles 14 and 15 of the 1987 Order contravene their rights to respect for family life under article 8 taken in conjunction with article 14 of the Convention and that they should not be applied by the Court when it is considering whether they are eligible to be considered as adoptive parents as they are discriminatory. The Strasbourg court said in EB v France, para 41, that the provisions of article 8 do not guarantee either the right to found a family or the right to adopt. But, as French law allowed adoption by individuals and the applicant had been discriminated against because she was denied eligibility on the ground of her sexual orientation, it was held that article 14, taken in conjunction with article 8, was applicable: para 51. It is the fact that they are being discriminated against by being denied the eligibility that the law gives to married couples that lies at the heart of the appellant’s case. In the powerful argument which he advanced on behalf of the child Mr Lavery QC accepted that article 8 did not confer a right to adopt on the appellants. But he submitted that there was a difference between a right to adopt and a right to be adopted and that, even if article 8 was not of direct application, article 8 in conjunction with article 14 was applicable in the child’s case as well as that of the appellants. The child too was being discriminated against.

50.  How far then has the Strasbourg court gone in spelling out of article 8 taken with article 14 a right for unmarried couples not to be discriminated against as regards eligibility for adoption? Would it, as my noble and learned friend Baroness Hale of Richmond suggests at the outset of her opinion, regard this matter as within the margin of appreciation allowed to member states? If it would, we would indeed be presented with a dilemma. If so, I would be inclined to resolve it in favour of exercising the judgment which that margin of appreciation permits by removing the discrimination against unmarried couples. As Lord Bingham of Cornhill observed in R (Ullah) v Special Adjudicator [2004] 2 AC 323, in the passage from para 20 which my noble and learned friend Lord Hoffmann has quoted, the House is required by section 2(1) of the Human Rights Act 1998 when it is considering whether any article of the European Convention on Human Rights is engaged by anything done by a public authority to take into account any relevant Strasbourg case law. He said that the duty of the national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: “no more, but certainly no less.” Not, it should be noted, “certainly no more". The Strasbourg jurisprudence is not to be treated as a straightjacket from which there is no escape. But I consider, in agreement with Lord Hoffmann and my noble and learned friend Lord Mance, that the dilemma is less acute than Baroness Hale’s opening remarks might suggest.

51.  In Fretté v France, application no 36515/97, 26 February 2002, a single homosexual man complained that his application to adopt a child had been rejected because of his sexual orientation and that this violated his rights under article 8 and 14. The court held by a majority of four to three that, taking account of the broad margin of appreciation to be left to States in this area and the need to protect children’s best interests, the refusal to authorise did not infringe the principle of proportionality. In EB v France, which was decided five years later by the Grand Chamber, the decision on an application by a single homosexual woman, again by a majority (ten to seven) went the other way. Sir Nicholas Bratza was one of the minority in Fretté and one of the majority in EB.

 
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