In the matter of P (a child) (Compatibility of the Adoption Order (Northern Ireland) 1987 with the European Convention on Human Rights and Fundamental Freedoms)
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 06 April 2006 |
| Neutral Citation | [2006] NIFam 5 |
| Court | Family Division (Northern Ireland) |
| Date | 06 April 2006 |
| Year | 2006 |
1
Neutral Citation no. [2006] NIFam 5 Ref:
GILC4591
Judgment: approved by the Court for handing down Delivered:
6/4/2006
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
FAMILY DIVISION
________
IN THE MATTER OF P (A CHILD) (COMPATIBILITY OF THE
ADOPTION ORDER (NORTHERN IRELAND) 1987 WITH THE
EUROPEAN CONVENTION ON HUMAN RIGHTS AND
FUNDAMENTAL FREEDOMS)
_________
GILLEN J
[1] I have prepared this judgment in an anonymised form. Nothing must
be published which might lead either directly or indirectly to the
identification of the child or the parties involved in the case.
[2] This is an application by the mother ("X") of a child ("P") who is now 8
years of age and her male partner ("Y") that articles 14 and 15 of the Adoption
(Northern Ireland) Order 1987 (“the 1987 Order”) contravene article 8 of the
European Convention of Human Rights and Fundamental Freedoms (“the
Convention”) in conjunction with article 14 of the Convention and that the
infringement of the Convention cannot be justified by the State. Mr O’Hara
QC who appeared on behalf of X and Y with Ms Hughes submits that the
court should declare that the provisions of the 1987 Order are incompatible
with articles 8 and 14 of the Convention and should then declare that the
applicants are eligible to be considered as adoptive parents under the 1987
Order regardless of the fact that they are unmarried. A notice pursuant to
Order 121 Rule 3A of the Rules of the Supreme Court (NI) 1980 ("the Rules")
was served on the Secretary of State for Northern Ireland to the effect that the
court was considering the compatibility of a provision of subordinate
legislation with certain Convention rights. Accordingly the Crown was joined
as a party to these proceedings. I further deemed it appropriate that the child
should be represented in this matter and I invited the Official Solicitor to
assist the court by representing her pursuant to Order 110 Rule 1 of the Rules.
2
Background
[3] The relevant facts in this case are very few but the legal issues very
difficult. X is the mother of P who is now 8 years of age. Y is not P’s father.
The child's father is W who, according to Mr O’Hara, has had no relationship
whatsoever with X since before P’s birth. He has not contributed financially
or otherwise to the upbringing of P. The relationship between X and Y started
before P’s birth and has continued uninterrupted since then, a period of
approximately 8 years. They have cohabited for more than 7 years. Mr
O’Hara submits that P has been treated by Y as if she was his own daughter.
They are in all respects a stable family unit save that the adults are not
married and P is not Y’s daughter in any legal sense. In the final skeleton
argument skilfully prepared and set before me by Mr O’Hara and Ms Hughes
it states:
“X and Y have not been married in either a
religious or civil ceremony. They do not have
religious or moral beliefs which require marriage
or encourage them in that direction and they do
not believe that a civil wedding would in any way
add or strengthen their relationship.”
Both X and Y wish to be eligible to become the adoptive parents of P.
Domestic Law
[4] Article 14 of the 1987 Order, where relevant, reads as follows:
“Adoption by a Married Couple
14.-(1) An adoption order may be made on the
application of a married couple where each has
attained the age of 21 years but an adoption order
should not otherwise be made on the application
of more than one person. ….”
[5] Where relevant, article 15 of the 1987 Order reads as follows:
“Adoption by One Person
15.-(1) An adoption order may be made on the
application of one person where he has attained
the age of 21 years and –
(a) is not married, or
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