A SENIOR High Court judge has ruled that a ban on unmarried gay couples adopting children is unlawful.
But the ink was hardly dry on Mr Justice Seamus Treacy’s ruling when DUP Health Minister Edwin Poots announced he was to challenge the ruling.
The judge’s decision was welcomed by the Rainbow Project, Northern Ireland’s organisation working for lesbian, gay, bisexual and/or transgender (LGB&T) people.
Mr Justice Treacy said the ban discriminated against those in civil partnerships and breached their right to family life.
And he said that a child growing up in a family home was better than a “a life in care.”
However, Health Minister Poots said his position on the ban remained unchanged in the light of the High Court ruling.
“It is my intention to urgently appeal this judgement and I am taking this action with a heavy heart.
“I have already publicly declared my intention to reform Northern Ireland adoption law because reform is much needed and long overdue.
“The justice review has already delayed plans to introduce a new Adoption and Children Bill in the Assembly and I fear that this will lead to further delay,” he added.
The High Court action was brought by the Northern Ireland Human Rights Commission.
The case was based on the evidence of an affidavit from ‘C’, a lesbian who is in a relationship and wanted to adopt.
In her statement to the court, ‘C’ said that had been in a relationship with her partner for three years.
They have lived together for one year and have a son who is the biological son of her partner.
She describes their relationship as ‘secure, loving and committed’. C and her partner are keen to be considered as adoptive parents.
‘C’ added: “We have reached the decision about seeking to adopt a child after many discussions and reflections around the nature and implications for us and our existing family unit.
“We believe we could offer a child a loving and secure home and a nurturing family unit. Our son is aware of our plans and supports our decision to seek to adopt.”
She explained that she and her partnery wished to enter a civil partnership.
“We want to signify our commitment to each other. We believe that this would be an outward indication of our commitment and love for each other and would serve to provide us with the recognition and enhanced legal protection that is afforded heterosexual couples when they marry”.
‘C’ explored the possibility of being adoptive parens and made “preliminary enquiries” through various adoption agencies.
It was at this stage that she discovered that “not only could my partner and I not even apply to be considered for adoption as a couple, but that should we enter a Civil Partnership, neither of us can ever adopt, either as a couple or as individuals”.
At the time when ‘C’ made these enquires in early 2011 the information received from the Health Trust said that unmarried couples can only apply to adopt as individuals.
Her affidavit continued: “It became clear once I had informed myself of the legal position that the only way I could advance an application to adopt a child was if I did so as an individual.
“This would effectively mean ignoring my status with my partner and, if I was successful, would mean that I would have legal status in relation to the child but my partner would not.
“This not only offends the existence of my committed relationship but would result in what is effectively a legal hybrid for any child we adopt in that they would only have one legal parent while living with a committed couple in a loving home.”
After considering her case, and after studying legal cases, Mr Justice Treacy said: “Adopting a child is no small undertaking. This is even more so nowadays when the profile of children who need adoptive families has changed dramatically.
“Looked after children who require permanent adoptive homes tend to be older and often have special needs.
“They also often retain some links with their biological families. A loving, permanent, stable home is infinitely preferable to growing up in care.
“The potential benefit to a child adopted in such circumstances is immeasura”ble. As well as a huge benefit to the child, these adopters also provide an invaluable service to the State.
“No relationship is perfect and while there are benefits to an adopted child in entering a relationship where a web of legal rights exists between the parents, that web is no guarantee of a lifelong, stable, committed relationship.
“The most important consideration is that decisions are made in the best interests of the child.
“As the First Division of the Court of Session observed there can be no more fundamental principle in adoption cases than that it is the duty of the court to safeguard and promote the interests of the child.
“Issues relating to the sexual orientation, lifestyle, race, religion or other characteristics of the parties involved must of course be taken into account as part of the circumstances. But they cannot be allowed to prevail over what is in the best interests of the child.
“Accordingly the application for judicial review is allowed,” added Mr Justice Treacy.
Spokesman Professor Michael O’Flaherty said the Commission welcomed the ruling.
“Through this case the Commission has sought to protect the best interests of the child.
“Given the high numbers of children in care who need a family in Northern Ireland, the importance of this case in widening the pool of prospective parents cannot be overstateed.
“We are therefore delighted with this outcome.”
John O’Doherty, director the Rainbow Project, said of the decision: “We are very happy with the ruling Mr Justice Treacy has issued today.
“The Rainbow Project has long held that the blanket ban on same-sex couples adopting children disadvantaged children in need of parents and discriminated against families headed by same-sex couples.
“We now look forward to the Minister for Health bringing forward legislation which will amend the anomalous sections of the Adoption Order to ensure that same-sex couples are not excluded from being assessed as potential adoptive parents.’