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Supreme Court refuses appeal on adoption law

24 Oct 2013

The Northern Ireland Human Rights Commission today welcomed the refusal of the Supreme Court in London to grant the Department of Health’ Social Services and Public Safety permission to bring a further appeal on adoption law.
The Chief Commissioner Professor Michael O’Flaherty stated: “The Commission brought this case to ensure that the best interests of children in Northern Ireland would be protected.
“Unmarried couples’ those in same sex relationships and civil partnerships are eligible to be considered to be adoptive parents.
“All of the judgements and today’s rejection by the Supreme Court to hear a further appeal confirmed that the law in Northern Ireland was out of step with the United Kingdom’s human rights obligations.”
During this case the Commission’s powers to protect victims through the courts were challenged by the Department. The Supreme Court has rejected this challenge and made clear that there is no merit whatsoever in the Department’s case.

Further information:
For further information please contact Alice Neeson on:’ (028) 9024 3987 (office)’ 0771 7731873 (mobile).

Notes to editors
1. The Northern Ireland Human Rights Commission is an independent statutory body first proposed in the Belfast (Good Friday) Agreement (1998) and established in 1999 by the Northern Ireland Act (1998). It is answerable to Parliament at Westminster.

Case History:
On 27 June 2013 the Divisional Court dismissed the adoption appeal brought by the Department of Health’ Social Services and Public Safety against an earlier judicial decision that a ban on unmarried couples’ irrespective of sexual orientation’ and those in a civil partnership from being considered as potential adopters was discriminatory. View the summary judgment here. On 18 October 2012’ Mr Justice Treacy in the High Court found in favour of the Commission agreeing that to prevent someone from being eligible to apply to adopt on the basis of their relationship status is discriminatory.

Case Facts:
1.The Judicial Review looked at the compatibility of the Adoption Order (N.I) 1997 with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
2.The law in Northern Ireland meant that:

•Single men and women’ regardless of their sexual orientation could apply to adopt in Northern Ireland.

•Married couples could apply to adopt.

•However unmarried heterosexual couples’ same sex couples’ and couples in civil partnerships were not eligible to be considered for adoption in Northern Ireland.

•This was in direct contrast to the rest of the UK- where couples (including unmarried heterosexual’ same sex and civil partners) can apply to adopt.

Why NIHRC took case
1. The Commission has powers to bring human rights cases it in its own name (under amendment to the Northern Ireland Act 1998 by the Justice and Security (Northern Ireland Act) 2007).

2.NIHRC engaged in correspondence with the Department for some time on the issue before it commenced judicial review proceedings.

3.The Re P case in the House of Lords in 2008 decided that being unmarried should not be a bar to applying to adopt a child in Northern Ireland but yet the law remained unchanged.

4.The aim sought to be realized in adoption legislation is the promotion of the best interests of the child. The Commission questioned whether 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 be considered for adoption’ regardless of the merits of the individual case.

5.Furthermore it was argued that this position engaged Article 8 and Article 14 of the European Convention on Human Rights.

Article 8: Right to privacy

(1) Everyone has the right for his private and family life’ his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security’ public safety or the economic well-being of the country’ for the prevention of disorder or crime’ for the protection of health or morals’ or for the protection of the rights and freedoms of others.

Article 14: Discrimination

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.

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