There are no plans to retract the ban on gay and unmarried couples from adopting children in Northern Ireland, the country’s Attorney General has said.
John Larkin QC, added that rather than satisfying the wishes of prospective parents, the law was formulated to ensure the welfare of the child, and that it was up to the Stormont Assembly to make any amendments as it sees fit.
These comments were made in the context of a judicial review brought forth by the NI Human Rights Commission last December. The plantiffs for the case, with the additional backing of an unidentified lesbian couple seeking to adopt, argue that the law in Northern Ireland is at odds with the rest of the UK and thus is discriminatory against same-sex and unmarried couples.
Mr Larkin, representing the Department of Health, has said that what “happens in Scotland, England and Wales does not constitute a line into which Northern Ireland must be brought,” according to the BBC. In addition, the decision to exclude same-sex couples was not accidental, he submitted, and that the position as it stands now was “deliberate (and) open-eyed.”
However, the case against excluding unmarried couples is already in uncertain legal territory, thanks to a groundbreaking ruling in 2008, when the House of Lords exceptionally approved an unmarried couple to adopt a child. This has constituted one important line of the plaintiff’s case.
During the preliminary hearings, both Mr Larkin and Ms Monye Anyadike-Danes QC, the latter representing the Human Rights Commission, had argued that their otherwise contrary positions stood in the best interests of the child. Ms Anyadike-Danes had contended in her opening statement that there is no legal justification for the blanket ban that allowed only married (and thus, in the current legal parlance, heterosexual) couples to adopt. “Not to exclude people with a blanmket barrier without even knowing whether they have the qualities to offer a child a nurturing and loving and permanent home,” she had added.
Mr Larkin, meanwhile, has argued that there is no legal obligation, domestic or international, to remove the current ban. He has contended that children cannot and do not constitute ‘services’ in any of the legal contexts in which the law can be thought of as discriminatory. How this fits with the European human rights legislations, and with the Equality Act of 2010, remains unclear.
A ruling from the European Court of Human Rights this week found that France’s rules forbidding unmarried couples from adopting was not discriminatory under the European Convention on Human Rights, which the Equality Act enshrined in UK law.
Though gay couples are only eligible for a PACS partnership and not marriage in France, the PACS system is open to straight couples. While straight couples have the option of marrying and becoming eligible for adoption and gay couples do not, the court declined to implement a Europe-wide equal marriage rights in that case.
The hearing, under the court of Mr Justice Treacy, continues.