The Adoption (Northern Ireland) Order 1987 imposes a blanket ban on unmarried couples (whether same-sex, opposite-sex or in a civil partnership) applying to adopt as a couple. In 2008, in Re P & Others (Northern Ireland) [2008] UKHL 38, the House of Lords had reversed the Court of Appeal and granted a declaration that it was unlawful for the Family Division to reject prospective adoptive parents on the ground only that they were not married; however, the law was not changed to take account of that judgment. The Human Rights Commission challenged Articles 14 and 15 of the Order on the grounds that the criteria to be fulfilled by a person seeking an adoption order were unjustifiably discriminatory in relation to those in same-sex relationships, contrary to Articles 8 (private and family life) and 14 (discrimination) ECHR. At first instance Treacy J had noted that no-one had a right to adopt under either domestic law or the ECHR: the sole purpose of adoption was the welfare of the adoptive child. However, the legislation created a right to apply to be considered as an adoptive parent, and that right engaged Article 8 – which under Article 14 was to be enjoyed without discrimination on any prohibited ground. A bright-line rule excluding all but married couples from consideration as adopters was irrational and unjustifiable because the true focus should be on the interests of the child.

The Attorney General argued that the criteria in the 1987 Order were lawful, appropriate and in the best interests of children – and had been supported by the people of Northern Ireland in a consultation. Nor was there any shortage of prospective adopters. Moreover, the effect of the recent Grand Chamber judgment in X & Ors v Austria App no 19010/07 (ECtHR, 19 February 2013 Grand Chamber) was that the House of Lords judgment in Re G should be narrowly construed on its own facts since, in his view, its theoretical underpinning was now in some doubt. The Court of Appeal disagreed and dismissed the appeal. [Frank Cranmer]