House of Lords

Published June 23, 2008

In re P (Adoption: Unmarried couple)

Before Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Mance

Speeches June 18, 2008

Regulations governing the adoption of children in Northern Ireland which prevented the consideration of an unmarried couple as potential adoptive parents were in breach of the couple’s rights to a family life, under article 8 of the European Convention on Human Rights and article 14, prohibiting discrimination.

The House of Lords so held, Lord Walker dissenting, in allowing an appeal by prospective adoptive parents from the dismissal by the Court of Appeal in Northern Ireland (Sir Brian Kerr, Lord Chief Justice, Lord Justice Higgins and Lord Justice Girvan) ([2007] NI 251) of their appeal against the dismissal by Mr Justice Gillen, in the Family Division of the High Court in Northern Ireland, on April 6, 2006, of their application for a declaration that articles 14 and 15 of the Adoption (Northern Ireland) Order (SI 1987 No 2203(NI 22)) contravened articles 8 and 14.

The defendant was the Department of Health and Social Service and Public Safety of Northern Ireland on behalf of the Crown. The Official Solicitor represented the interests of the prospective adoptive child.

Mr John O’Hara, QC and Ms Cathy Hughes for the applicants; Mr Bernard McCloskey, QC and Mr David McMillan for the Crown; Mr Michael Lavery, QC and Mr Gregory McGuigan for the Official Solicitor.

LORD HOFFMANN said that the state was entitled to take the view that in general it was better for children to be brought up by parents who were married to each other than by those who were not.

The question was whether there was a rational basis for having any such rule. In his Lordship’s opinion, such a rule was quite irrational.

In fact, it contradicted one of the fundamental principles that the court was obliged to consider: what would be in the best interest of the child? Such a rule could not be justified because the law required the interests of each child to be examined on a case-by-case basis.

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