In the matter of P (a child)
| Jurisdiction | Northern Ireland |
| Judge | Girvan LJ |
| Judgment Date | 04 June 2007 |
| Neutral Citation | [2007] NICA 20 (2) |
| Court | Court of Appeal (Northern Ireland) |
| Date | 04 June 2007 |
Neutral Citation no. [2007] NICA 20 (2)
Ref:
GIRC5834
Judgment: approved by the Court for handing down Delivered:
04/06/07
(subject to editorial corrections)*
2003 No 038372
HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN
NORTHERN IRELAND – FAMILY DIVISION
________
IN THE MATTER OF P (A CHILD)
________
GIRVAN LJ
Introduction
[1] The factual context within which the issues raised in this appeal arise
can be simply stated. X, the natural mother of P (“the child”) and her partner,
Y, applied on 2 January 2003 to adopt the child who was born on 17 July 1997.
The natural father of the child took no interest in his child and did not
maintain her. The relationship between X and Y started before P’s birth and
has continued uninterrupted since then over a period of 8 years. They have
cohabited for more than 7 years. According to paragraph 19 of the
application proceedings were taken by Y in the Family Proceedings Court to
obtain a parental responsibility order though there is no further information
before this court on that issue. In his judgment Gillen J recorded that counsel
on behalf of the applicants stated that X and Y did not have any religious or
moral beliefs which required marriage or encouraged them in that direction
and they did not believe that a civil wedding would in any way add to or
strengthen their relationship. In paragraph 17 of this judgment he recorded
that he was not persuaded that there was any material distinction in this case
between Y as an unmarried man who had clearly established family life with
a young child and a married father who enjoys a similar family life. He
concluded that X and Y differed only as regards the issue of marital status.
He was satisfied that the couple had firmly established beyond plausible
dispute that they had established a family life with the child and had acted as
the child’s mother and father. The judge, however, heard no evidence from X
2
and Y as to the stability of their relationship nor was there any probing of the
bare assertion by counsel that X and Y considered that their relationship was
as good as a marriage. The reasons why an apparently committed couple
wishing to adopt a child should decline to commit themselves to a marriage
which is a statutory pre-requisite to adoption would clearly be relevant
matters to be considered in the context of deciding whether the relationship is
as soundly based as counsel asserted or whether it is truly analogous to that
of a marriage if that were a matter to be decided on factual grounds.
[2] The essential question which fell for determination by the court at first
instance was whether the unavailability to cohabiting but unmarried couples
of a right to apply for the adoption of a child was incompatible with the
Convention rights of the couple having regard to the fact that a married
couple have such a right. Having a right to apply for adoption of a child does
not of itself confer a right to adopt a particular child and if the court has
jurisdiction to make an order it would have to satisfy itself that in the
circumstances of the individual case such an order would be appropriate in
the interests of the child. This would necessarily entail a careful consideration
of the stability and permanence of the relationship of the cohabiting couple
and would entail some consideration of the motivation behind the decision of
the parties not to get married bearing in mind that marriage not merely
confirms an intention to make permanent the relationship but also confers
legal and other rights and a status on the parties distinct from those applying
to a cohabiting couple.
[3] In the application before Gillen J and in this appeal the court was asked
as a matter of principle to consider the question whether the restriction to a
married couple of a right to apply for adoption under article 14 of the
Adoption (Northern Ireland) Order 1987 (“the 1987 Order”) contravened
article 8 of the Convention in conjunction with article 14. Mr O’Hara QC on
behalf of X and Y argued that the court should declare the provisions of the
1987 Order incompatible with the Convention provisions and should declare
that the applicants were eligible to be considered as adoptive parents
regardless of the fact that they were not married. He argued that article 14 of
the Order should be read in the light of the Human Rights Act 1998 and
should be construed and interpreted in such a way as to treat a cohabiting
man and woman as having the same rights as a married couple.
The Statutory Context
[4] Article 9 of the 1987 Order provides:
“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 –
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