Close (Grainne) and Shannon Sickles and Christopher Flanagan-Kane and Henry Flanagan-Kane's Application
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2020] NICA 20 |
| Date | 07 April 2020 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2020] NICA 20
Ref:
MOR11247
Judgment: approved by the Court for handing down
Delivered:
07/04/2020
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY
GRAINNE CLOSE and SHANNON SICKLES
and
CHRISTOPHER FLANAGAN-KANE and HENRY FLANAGAN-KANE
FOR JUDICIAL REVIEW
________
Before: Morgan LCJ, Stephens LJ and Treacy LJ
________
MORGAN LCJ (delivering the judgment of the court)
[1] This is an appeal from an Order of O’Hara J dismissing the appellants’ claims
that the prohibition on same sex marriage in Article 6(6)(e) of the Marriage
(Northern Ireland) Order 2003 (“the 2003 Oder”) unlawfully discriminated against
them in violation of Article 14 ECHR in the ambit of Articles 8 and 12 ECHR.
Mr Lavery QC and Ms McMahon appeared for the appellants, Dr McGleenan QC
and Mr McAteer for the Department of Finance and Personnel (“the Department”)
and the Attorney General for Northern Ireland, Mr Larkin QC, participated pursuant
to an appearance to a devolution notice. We are grateful to all counsel for their
helpful oral and written submissions.
The claim
[2] The Appellants each of whom are in same sex relationships entered into civil
partnerships in Northern Ireland in December 2005. Both couples have children;
Grainne Close and Shannon Sickles have a daughter aged 4 and Christopher and
Henry Flanagan-Kane have a son aged 8. Both couples wish to enter into a civil
marriage but assert that they are prohibited from doing so by Article 6(6) of the 2003
Order which provides:
2
“(6) For the purposes of this Article and Article 7 there
is a legal impediment to a marriage if-
(a) that marriage would be void by virtue of Article 18
of the Family Law (Miscellaneous Provisions)
(Northern Ireland) Order 1984 (prohibited degrees
of relationship);
(b) one of the parties is, or both are, already married
or a civil partner;
(c) one or both of the parties will be under the age of
16 on the date of solemnisation of the intended
marriage;
(d) one or both of the parties is or are incapable of
understanding the nature of a marriage ceremony
or of consenting to marriage; or
(e) both parties are of the same sex.”
[3] The claim at first instance sought the following relief:
(a) An Order of Certiorari to quash Article 6)(6)(e) of the 2003 Order;
(b) In the alternative a declaration that the said subsection be read down so that
individuals of the same sex may lawfully enter in to a civil marriage;
(c) A declaration that the said subsection is unlawful, ultra vires and of no force
or effect; and
(d) A declaration that petitions of concern were not to be used in matters seeking
to advance, promote and protect human rights.
[4] Although the petition of concern point was not pursued before the trial judge
or in this court it requires some explanation. Section 42(1) of the Northern Ireland
Act 1998 (“the 1998 Act”) provides that if 30 members petition the Assembly
expressing their concern about a matter which is to be voted on by the Assembly, the
vote on that matter shall require cross-community support. Cross-community
support is defined in section 4 of the 1998 Act as meaning:
“(a) the support of a majority of the members voting, a
majority of the designated Nationalists voting and
a majority of the designated Unionists voting; or
(b) the support of 60 per cent of the members voting,
40 per cent of the designated Nationalists voting
and 40 per cent of the designated Unionists
voting;”
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Attorney General for Bermuda v Roderick Ferguson and Others
...it is notable that this was the conclusion of the Northern Ireland Court of Appeal in In re Close's Application for Judicial Review [2020] NICA 20, in a judgment which overlooked the lex specialis analysis stemming from article 12 of the ECHR (see the review of the case in Day paras 51–52),......
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Chantelle Day and another v The Governor of the Cayman Islands and another
...51 Mr Fitzgerald sought to rely on the judgment of the Northern Ireland Court of Appeal in In re Close's Application for Judicial Review [2020] NICA 20. The claimants in that case were same-sex couples who had entered into civil partnerships. They wished to enter into a civil marriage, but ......
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A Petition by Petitioner X
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In re a Petition by Petitioner (Same Sex Marriage)
...• Is that difference of treatment on the ground of one of the characteristics listed or “other status”? 2 In re Close and others [2020] NICA 20 Judicial Communications Office 3 • Is there an objective justification for that difference in treatment? The principal authority touching on that m......
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