In the matter of P (a child)
| Jurisdiction | Northern Ireland |
| Judge | Kerr LCJ |
| Judgment Date | 04 June 2007 |
| Neutral Citation | [2007] NICA 20 |
| Date | 04 June 2007 |
| Court | Court of Appeal (Northern Ireland) |
| Year | 2007 |
1
Neutral Citation no. [2007] NICA 20 (1)
Ref:
KERF5853
Judgment: approved by the Court for handing down
Delivered:
4/6/07
(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 – FAMILY DIVISION
________
IN THE MATTER OF P (A CHILD)
________
Before Kerr LCJ, Higgins LJ and Girvan LJ
________
KERR LCJ
Introduction
[1] This is an appeal from the decision of Gillen J. He was asked to rule that
articles 14 and 15 of the Adoption Order (Northern Ireland) 1987 contravene the
rights of the appellants under article 8 of the European Convention of Human
Rights and Fundamental Freedoms when taken in conjunction with article 14 of
the Convention. The appellants are the mother of a child and her male partner.
[2] Since the child is still only ten years old nothing must be published that
would tend to identify her or any of the parties in the proceedings. The
judgment will refer to the various personalities by letter. The child will be
referred to as ‘P’, (which is how she has been described throughout the
proceedings before Gillen J). The child’s mother will be called ‘X’, her partner
will be referred to as ‘Y’ and, in so far as it necessary to refer to him, the child’s
father will be called ‘W’.
2
[3] Notice that the court below was considering whether to make a
declaration of incompatibility in relation to articles 14 and 15 of the 1987 Order
was served on the Crown in accordance with Section 5 of the Human Rights Act
1998 and Order 121, Rule 3 of the Rules of the Supreme Court (Northern Ireland)
1980 and it has been an intervening party both before Gillen J and this court.
Background
[4] The child's father, W, has had no relationship with X since before P’s birth.
He has not contributed financially or otherwise to P’s upbringing. Indeed, the
relationship between X and Y began before P was born. They have lived together
from before P’s birth. P has been treated by Y as if she was his natural daughter.
X, Y and P were found by the trial judge to be in all respects a stable family unit
but X and Y are not married. They do not have religious or moral beliefs which
require marriage and they do not believe that being married would in any way
add to or strengthen their relationship. But they now both wish to be legally
recognised as the parents of P by formally adopting her.
[5] In his judgment (which I have had the advantage of reading in draft)
Girvan LJ has raised the question whether there was sufficient evidence for the
conclusion that X and Y had established a family life. As he has pointed out, no
evidence was given as to the stability of the relationship beyond the bare facts
recited above. For the purposes of the present appeal, however, it is appropriate
to proceed on the assumption that the family unit comprising X, Y and P is
secure and durable.
The domestic legislation
[6] Article 9 of the 1987 Order provides: -
“Duty to promote welfare of child
9. - 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 –
(a) have regard to all the circumstances, full
consideration being given to:
(i) the need to be satisfied that adoption, or
adoption by a particular person or persons,
will be in the best interests of the child; and
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