The Joint Committee on Human Rights has agreed to the following Report:
ADOPTION AND CHILDREN BILL: AS AMENDED BY THE HOUSE OF LORDS ON REPORT
Summary. The Adoption and Children Bill completed its Commons stages and had reached the Report stage in the House of Lords when an amendment was approved (against the Government) restricting eligibility to be considered as potential adoptive parents. The effect of the amendment is that any individual may be considered as an adoptive parent, but a couple may be considered jointly only if they are married. An alternative amendment, which was not put to a vote, would have allowed unmarried heterosexual couples to be considered, but not same-sex couples. In this Report, the Committee considers the human rights implications of these options, and concludes: (i) that the original Bill created no human rights dangers; (ii) that the Bill as amended at the Report Stage in the House of Lords gives rise to potential violations of ECHR Article 14 combined with Article 8 and ICCPR Article 26; and (iii) that the Bill, if it were to be further amended to include unmarried, mixed-sex heterosexual couples but not other unmarried couples, would be likely to give rise to potential violations of the same Articles if (as is highly probably) the case-law of the European Court of Human Rights develops in a certain direction.
A: The Background to the Amendment to the Bill
- The Government introduced the Adoption and Children Bill to the House of Commons in 2001 after a long period of gestation. A report under the Conservative Government in 1992 was followed by a White Paper in 1993. A draft Bill was published for consultation in 1996. There was then a delay until after the 1997 General Election. In July 2000, the Cabinet Office Performance and Innovation Unit conducted a review. The Government published a White Paper in December 2000. A Bill was introduced in March 2001, but fell when Parliament was dissolved for the General Election. It was re-introduced to the House of Commons in the present session on 19 October 2001. Its passage through Parliament has so far taken more than twelve months.
- The Bill makes a number of important and useful changes to adoption law, including a provision that the welfare of the child throughout his or her life is to be the paramount consideration in adoption matters (clause 1(2)). It also recasts the mechanisms for regulating adoption agencies, and makes a number of changes designed to ensure that there are adequate safeguards for children against hurried or uncontrolled adoptions, including adoptions from abroad. The Bill, as introduced to the House of Lords, would have permitted the following classes of people to be eligible for consideration as potential adopters
- any individual, regardless of sex or sexuality, marital status, whether or not he or she was in a relationship or cohabiting with anyone else, and
- any couple, regardless of sex or sexuality, marital status, or cohabitation arrangements (if any),
subject to conditions as to suitability being satisfied, and the adoption by the potential adopters being in the best long-term interests of the child.
- The conditions in the Bill were, and remain, stringent. They include requirements as to consent by the birth parent or guardian of the child and the circumstances in which it can be dispensed with, the age, domicile and habitual residence of the proposed adopter or adopters, and the circumstances in which a single person (including the mother, father, or partner of either parent) can adopt a child. But the paramount consideration is always to be the child's welfare, throughout his or her life.
- When we first examined the Bill, we concluded that it was compatible with the rights of children under the ECHR, the Human Rights Act 1998, and the Convention on the Rights of the Child (CRC). Where the Bill's provisions potentially interfered with the rights of natural or adoptive parents and others, for example in relation to the right to respect for family life under Article 8 and the right to found a family under Article 12 of the ECHR, we considered that any interference was likely to be fully justifiable by reference to the criteria in Articles 8(2) and 12(2). We therefore reported to each House that in our view the Bill did not raise questions relating to human rights which required to be drawn to the attention of each House. In this Report, we consider more fully the human rights implications of the Bill as originally introduced to the House of Lords (see section C, below).
- At the Report stage in the House of Lords, Earl Howe proposed an amendment to clause 45, with related amendments to other provisions. The amendment, which was agreed to, allowed regulations to be made providing that only single people or married couples would be eligible to be considered as adoptive parents. Lord Jenkin of Roding had tabled another amendment, which would have allowed the regulations to provide for married couples, heterosexual couples living together without being married, and single persons to be eligible to adopt children, but not couples of the same sex. Once Earl Howe's amendment had been approved, Lord Jenkin's amendment could not be moved.
- As a result of Earl Howe's amendment, the Bill allows regulations to be made to provide for the following classes of people to be eligible to be considered as potential adopters
- married couples, and
- any individual, whether married or unmarried, and whether or not he or she is in a relationship or cohabiting with anyone else.
People in those classes would be eligible to be considered on the basis of their suitability, the best interests of the child throughout his or her life being the paramount consideration.
- This means that married couples would be eligible to be considered regardless of the sexuality of the spouses: one or both of them might be heterosexual, homosexual, or bisexual, but they would be eligible to be considered as long as they both had capacity to marry when they went through a valid marriage ceremony. One member of an unmarried couple could be considered as a potential adopter, but the couple could not be considered. If the individual were to adopt a child, only that individual would have parental responsibilities and powers: that person's partner would be unable, for instance, to consent to medical treatment for the child or give permission for the child to go on school trips. This would follow from the ineligibility of unmarried couples, including unmarried mixed-sex couples and same-sex couples, even to have their merits as potential adopters considered. We consider the human rights implications of this in section D, below.
- Had Lord Jenkin's amendment been approved instead of Earl Howe's, the Bill would have allowed regulations to provide for the following classes of people to be eligible for consideration as adopters
- any individual, whatever his or her sexuality,
- any married couple, whatever the sexuality of either or both of the spouses, and
- any unmarried couple if the sexes of the partners were different, as long as both partners were heterosexual and living together.
We consider the potential human rights implications of such an amendment in section E, below. First, however, we offer an outline of the main rights which are affected (section B, below).
B. The Rights Affected
- It is necessary to consider separately the rights of the children and those of potential adopters.
The rights of the children
- The ECHR, the relevant parts of which have effect in national law by virtue of the Human Rights Act 1998 and the devolution legislation, obliges the state
to justify any interference with the child's right to respect for family life (ECHR Article 8), including any decision to sever the link between the child from his or her birth family, and
to provide a system for assessing potential adopters which is adequate to protect the child against any reasonably foreseeable risk of serious physical, psychological or social harm which might violate the child's right to be free of inhuman or degrading treatment (ECHR Article 3) or his or her physical and moral integrity which are entitled to respect as an aspect of private life (ECHR Article 8).
In addition, the United Kingdom is bound under international law to comply with the requirements of the UN Convention on the Rights of the Child, which the United Kingdom has ratified (but is not part of national law in the United Kingdom). Among these obligations are
a duty to ensure that the best interests of the child are a primary consideration in all actions concerning children (CRC Article 3.1),
a duty to ensure that the best interests of the child are the paramount consideration in the adoption system (CRC Article 21), and
a duty to ensure such protection and care as is necessary for the child's well-being (CRC Article 3.2).
The Preamble to the CRC observes that 'the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.' A recent judgment of the Constitutional Court of South Africa, Du Toit and de Vos v. Minister for Welfare and Population Development and others, is helpful in interpreting these obligations, as the Court considered them thoroughly. Section 17(a) and (c) of the South African Child Care Act of 1983 prevented unmarried, including same-sex, couples from jointly adopting children. Two same-sex life partners, who would otherwise have been suitable joint adopters, were accordingly refused permission to adopt children for whom they were caring and who regarded them as their parents. The couple challenged the constitutionality of that section of the Act, together with other related legislation. In the Constitutional Court, Skweyiya J.A., with whom all the other members of the Court agreed, held that section 17(a) and (c) of the Act was incompatible with Article 28(2) of the Constitution of South Africa, which provides, 'A child's best interests are of paramount importance in every matter concerning the child.' Skweyiya J.A. said
Their exclusion surely defeats the very essence and social purpose of adoption which is to provide the stability, commitment, affection and support important to a child's development, which can be offered by suitably qualified person....Excluding partners in same sex life partnerships from adopting children jointly where they would otherwise be suitable to do so is in conflict with the principle enshrined in section 28(2) of the Constitution. It is clear from the evidence in this case that even though persons such as the applicants are suitable to adopt children jointly and provide them with family care, they cannot do so. The impugned provisions of the Child Care Act thus deprive children of the possibility of a loving and stable family life as required by section 28(1)(b) of the Constitution. This is a matter of particular concern given the social reality of the vast number of parentless children in our country. The provisions of the Child Care Act thus fail to accord paramountcy to the best interests of the children and I conclude that, in this regard, sections 17(a) and (c) of the Act are in conflict with section 28(2) of the Constitution.
- It should be borne in mind that here, as in South Africa, the choice may not be between being adopted by a married couple and being adopted by a same-sex or unmarried couple, but between being adopted by an unmarried couple and not being adopted at all. A child who is not adopted may lose the chance of enjoying a 'family environment, in an atmosphere of happiness, love and understanding' (in the words of the Preamble to the CRC).
The rights of potential adopters
- The potential adopters have numerous rights in the adoption process. They are entitled to respect for their private and family lives (ECHR Article 8.1), and they have a right to marry and found a family in accordance with national laws (ECHR Article 12). Neither of these rights imposes a positive obligation on the state to assist people in breeding or adopting children, nor does the ECHR (or any other international instrument which binds the United Kingdom) confer even a qualified right to adopt: rejecting an application to adopt is not considered to interfere with one's right to free development and expression of the personality or with one's way of life under ECHR Article 8. Nevertheless, where a state permits adoption, the operation of the system may affect the right not to be discriminated against in the adoption process.
- The United Kingdom is bound in international law by Article 14 of the ECHR, which also applies in national law by virtue of the Human Rights Act 1998 and the devolution legislation. Article 14 provides
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The European Court of Human Rights interprets the Article dynamically, and holds that sexuality is a prohibited ground for discrimination. However, Article 14 has no independent operation: it applies only to discrimination in relation to the 'enjoyment of the rights and freedoms set forth in this Convention'.
- Certain acts or matters clearly fall within the ambit of Article 8 (respect for private and family life). Making homosexual acts criminal, or dismissing people from the armed forces on account of their homosexuality, interferes with the respect for private life secured by Article 8, and discriminating between people in those ways on the basis of their sexuality may therefore violate Article 14 in combination with Article 8. The same applies to discrimination in child-care decision-making against a natural parent of the child on account of that person's homosexuality. Until recently, it was not clear whether decisions about eligibility to be considered as potential adopters of children with whom one had no previous connection fell within the ambit of Article 8. In Fretté v. France, the Court by a four-three majority ruled that excluding consideration of homosexual people with no pre-existing link to a child did so, and thus brought Article 14 into play. The reasoning of the majority is not consistent with earlier caselaw of the Court. Nevertheless, for the time being the matter must be regarded as settled, although the reasons for the decision will require further consideration in the future. So far as it brings discrimination on the ground of sexuality in relation to adoption within the scope of Article 14 in combination with Article 8, one can expect that the same would apply to discrimination in adoption matters on the ground of marital status.
- Even if one establishes that a person is being treated differently from others, on a ground prohibited under Article 14, in relation to a matter falling within the ambit of another Convention right, it does not necessarily establish a violation of Article 14. The state may justify treating people differently by proving that there is an objective and rational justification for the difference. For this purposes, the difference must be shown to have a legitimate aim, to be rationally designed to achieve that aim, and to be proportionate to the legitimate objective which it is designed to achieve (i.e. narrowly confined so that the difference goes no further than necessary for that purpose). Promoting the best interests of children is certainly a legitimate aim. If the state can provide evidence to support its view that different treatment is necessary for a legitimate purpose, and the evidence is not clearly outweighed by evidence to the contrary, the Court will not be too ready to hold that the state's position is unjustified. This, at least, was the outcome of Fretté v. France: by a four-three majority, the Court decided that France had been entitled to refuse to allow a lesbian couple to adopt a child because there was some evidence that children suffer when brought up in a household with two adults of the same sex, and there was no consensus to the contrary. The decision is far-reaching, because the decision was based not on the qualities, personalities and circumstances of the individual child and the particular couple, but rather on generalised conclusions drawn from social scientific (including psychological) studies. In the past, the Court had refused to accept such evidence as sufficiently compelling to justify a state in discriminating against particular individuals without reference to their own abilities and circumstances. The judges who formed the majority on this point in Fretté did not explain how their approach could be fitted into the Court's jurisprudence in this respect, and the dissenting judges strongly criticised them for their failure. The majority concentrated on the scope of the margin of appreciation allowed to states when assessing the necessity for and proportionality of measures which interfere with rights. They did not present any principled argument in favour of the conclusion reached by the French authorities. By contrast, the dissenting judges advanced a principled argument for holding that the discrimination was unjustifiable under Article 14. The reasoning of the majority is suspect and will need to be revisited by the Court. As far as the law in the United Kingdom is concerned, section 2 of the Human Rights Act 1998 requires national courts to take judgments of the European Court of Human Rights into account when interpreting Convention rights, but does not make those decisions binding. It is almost inevitable that national courts in the United Kingdom would follow the minority opinion rather than that of the majority on this point in Fretté. As courts in the United Kingdom regularly look at comparative material in the form of decisions from other national jurisdictions, particularly common law jurisdictions, when deciding human rights cases, it is very probable that our courts would be heavily influenced by the principled judgment of the Constitutional Court of South Africa in Du Toit, mentioned in section B above, and would hold the discrimination to be unjustified. This probability is strengthened by the fact that the principled arguments of the dissenting judges in Fretté are very similar to those which found favour in the unanimous judgment of the Constitutional Court of South Africa in Du Toit.
- The United Kingdom is bound in international law by Article 26 of the International Covenant on Civil and Political Rights (ICCPR), although this does not form part of national law in the United Kingdom. Article 26 of the ICCPR is more far-reaching than Article 14 of the ECHR, expressly imposing positive obligations on the state which are independent of any link to other rights:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The U.N. Human Rights Committee (the authority which is responsible for the operation of the Covenant) has held that sexuality is a prohibited ground of discrimination under Article 26, although different treatment may be justified by a state if it can produce evidence of the kind needed to justify differential treatment under Article 14 of the ECHR. In the South African decision mentioned above, Du Toit and de Vos v. Minister for Welfare and Population Development and others, the Constitutional Court of South Africa considered the application of section 9 of the Constitution of South Africa to legislation denying the unmarried couples the right to be considered as joint adopters. Section 9 is similar in effect to Article 26 of the ICCPR. In the context of an application by a same-sex couple, Skweyiya J.A., with whom the other judges concurred, considered that discrimination on the ground of marital status was unfair, and therefore unjustifiable, because of
... an intersection of the grounds upon which the applicants' complaint is based: the applicants' status as unmarried persons which currently precludes them from joint adoption of the siblings is inextricably linked to their sexual orientation. But for their sexual orientation which precludes them from entering into a marriage, they fulfil the criteria which would otherwise make them eligible jointly to adopt children in terms of the impugned legislation. In this respect, then, the provisions of section 17(a) and (c) are in conflict with section 9(3) of the Constitution.
The Court took the strong step of reading words into the legislation, with immediate effect, to enable members of a permanent same-sex life partnership to be joint adoptive parents of a child, in order to make the legislation compatible with the applicants' constitutional rights.
1 HL Bill 117, as amended on Report in the House of Lords Back
2 Department of Health and Welsh Office, Review of Adoption Law (1992) Back
3 Adoption: The Future, Cm. 2288 (London: HMSO, 1993) Back
4 Adoption-A Service for Children (London: Department of Health and Welsh Office, 1996) Back
5 Prime Minister's Review: Adoption (London: Performance and Innovation Unit, July 2000) Back
6 Adoption: A New Approach, Cm. 5017 (London: The Stationery Office, December 2000) Back
7 Clauses 47 and 52 Back
8 Clauses 49, 50, 51(1)-(3) Back
9 Clause 51 Back
10 Clause 1(2) Back
11 Ninth Report of 2001-02, Scrutiny of Bills: Progress Report, HL Paper 60, HC 475, para. 9 Back
12 HL Deb., 16 October 2002, cc. 865-869 Back
13 ibid., cc. 869-872 Back
14 It is not clear how the advocates of the amendment envisage that a mixed-sex couple might prove that they are heterosexual. Merely cohabiting would presumably not suffice; there might need to be convincing evidence that both parties undertake heterosexual acts (not necessarily with each other), unless evidence of propensity would be admissible for those in celibate relationships Back
15 Adoption also affects the rights of the birth parents of the child and, sometimes, of other members of the child's birth family and carers. However, these people's rights are not relevant to the issue being addressed here Back
16 Case CCT 40/01, judgment of 10 September 2002, CC of South Africa Back
17 ibid., paras - (footnote omitted) Back
18 Dallila Di Lazzaro v. Italy, Eur. Commn. HR, App. No. 31924/96, admissibility decision of 10 July 1997, 90 D.R. 134; Fretté v. France, Eur. Ct. H.R., App. No. 36515/97, judgment of 26 February 2002, § 32 Back
19 Smith and Grady v. United Kingdom, Eur. Ct. H.R., Apps. Nos. 33985/96 and 33986/96, judgment of 27 September 1999, ECHR 1999-VI Back
20 See, e.g., Smith and Grady v. United Kingdom, above Back
21 Salgueiro da Silva Mouta v. Portugal, Eur. Ct. H.R., App. No. 33290/96, judgment of 21 December 1999, ECHR 1999-IX Back
22 Eur. Ct. H.R., App. No. 36515/97, judgment of 26 February 2002, §§ 31-33. The majority on this point consisted of Judges Fuhrmann, Kuris, Tulkens, and Sir Nicolas Bratza. Judges Costa, Jungwiert and Traja dissented Back
23 The Court might in the future have to overrule the Commission's decisions cited in n. 18, above Back
24 Eur. Ct. H.R., App. No. 36515/97, judgment of 26 February 2002 Back
25 On this point, the majority consisted of Judges Costa, Kuris, Jungwiert and Traja. Judges Fuhrmann, Tulkens and Sir Nicolas Bratza dissented Back
26 See, e.g., Smith and Grady v. United Kingdom, above; Salgueiro da Mouta v. Portugal, above Back
27 Unfortunately, the case was not referred to the Grand Chamber Back
28 See, e.g., Toonen v. Australia, HRC, App. No. 488/92, 31 March 1994 Back
29 Case CCT 40/01, judgment of 10 September 2002, CC of South Africa Back
30 ibid. at para.  of the judgment (footnotes omitted) Back