C. The Compatibility of the Bill as originally introduced to the House of Lords with Human Rights
- As originally introduced to the House of Lords, the Bill would have allowed single people or any couple to be eligible to adopt. In our view, the statement of compatibility made by Lord Hunt of King's Heath, the responsible Minister, under section 19 of the Human Rights Act 1998 when the Bill was introduced to the House of Lords was properly given. As far as Convention rights are concerned, the Bill properly balancedand required adoption agencies, courts and other bodies to balanceinterferences with the private life of the child against long-term benefits to the child (ECHR Article 8). It also gave appropriate protection against harm (ECHR Articles 3 and 8). There was some discussion in the House of Lords at the Report Stage of the value of marriage in enhancing the stability of relationships for the benefit of children: it was argued that relationships between people who were not married to each other were more likely to break down than marriages. However, statistics cannot give any guidance as to whether a particular marriage, or a particular unmarried relationship, is likely to survive. This can be assessed only by taking into account, in individual cases, the interests of particular children in relation to specific adopters. These interests do not seem to us to require a blanket ban to be introduced to prevent couples from having the stability of their relationships assessed. As for a risk of sexual abuse of children, that risk exists whether adopters are heterosexual and of different sexes or whether they are homosexual and/or of the same sex.
- The right of adopters not to be discriminated against was also protected by the Bill as originally introduced to the House of Lords. Essentially people were not ruled in or out on account of their lifestyle choices or sexuality; they fell to be assessed on their merits, case by case, bearing in mind always that the paramount consideration was the best interests of the child for life. This was fully compatible with the relevant Convention rights.
- Looking beyond the Convention rights, the Bill embodied the requirement of CRC Article 21 that the best interests of the child should be the paramount consideration in adoption decision-making, and included mechanisms (through individual assessment of the needs and interests of children and the suitability of adopters) for securing protection and care as necessary for the child's well-being (CRC Article 1.2).
- It can therefore be safely said that the Bill as originally introduced to the House of Lords was compatible with relevant Convention and other human rights.
D. The Compatibility of the Bill as amended at Report Stage in the House of Lords with Human Rights
- Earl Howe's amendment, allowing individuals and married couples only to adopt, leaves the Bill in a slightly more complicated state.
The rights of the children
- The rights of children under the ECHR and the Human Rights Act 1998 are unaffected. Their right under Article 21 of the CRC to have their interests for life treated as the paramount consideration in adoption matters might or might not be adversely affected. The amendment was advocated at least partly on the ground that one could reliably say, as a general proposition, that children's long-term interests would always be better served by being adopted by a married couple than by an unmarried couple, because of the greater stability of married relationships. This argument seems to presuppose that the choice in every case is between those two options. In reality, the choice may be less straightforward, as pointed out in section B, above. For example, one might have to choose between the child being adopted by an unmarried couple, being adopted by a single person, or not being adopted at all. Without a view of the range of options in an individual case, it is hard to say which option would best advance the child's long-term best interests. Earl Howe's amendment prevents decision-makers from making that assessment, by cutting out some potentially useful options from the outset. We are therefore not convinced that this will always be the best way of securing the long-term best interests of individual children. We are impressed by the reasoning of the Constitutional Court of South Africa in Du Toit and de Vos v. Minister of Welfare and Population Development, mentioned earlier: preventing adoption by suitable couples, merely on the ground that they are unmarried, restricts the pool of potential adopters who could give children loving family homes, and does not seem to make the best interests of the child the paramount consideration as required by Article 21 of the CRC.
The rights of potential adopters
- The effect of the Bill as amended on the right of adopters to be free of discrimination seems to us to be as follows.
- There is no direct discrimination against couples on the basis of their sexuality or their sex. There is, however, direct discrimination against unmarried couples on the ground of their marital status, which also amounts to indirect discrimination against homosexual couples on the ground of their sexuality, because (as the Constitutional Court of South Africa pointed out in Du Toit and de Vos v. Minister for Welfare and Population Development) for such couples their sexuality effectively prevents them from entering into marriage. We consider that this would engage Article 14 of the ECHR in combination with Article 8 on these grounds. It is doubtful whether this could be justified under Article 14. The aim of the differential treatment is to protect children, which is a legitimate aim. However, the factual basis for saying that the differential treatment is necessary for and proportionate to that purpose does not seem to us to have been objectively established by evidence. The stability of a relationship cannot be established without an assessment of individual relationships, and the desirability of a child having a male and a female role-model (as appropriate) is irrelevant, since the discrimination is against unmarried couples generally, not against same-sex couples. Although the judgment in Fretté suggests that it might not always be necessary to base a refusal to accept a same-sex couple as adopters on evidence related to an assessment of that particular couple's suitability to adopt, the view of the French authorities in that case (which the Court accepted as within their 'margin of appreciation') was based on doubts about the desirability of same-sex parenting. However, the case provides no support for the viewreflected in Earl Howe's amendmentthat it could legitimately be regarded as necessary and proportionate to the aim of protecting the best interests of the child to prevent all unmarried couples, including mixed-sex couples, from being eligible to adopt, regardless of the merits of the individual case. Furthermore, in relation to homosexual couples, the Constitutional Court of South Africa in Du Toit and de Vos held that it was a breach of the right to dignity, under the Constitution of South Africa, to deny the legal status of a parent to one member of a couple who was providing care and love for a child merely on account of his or her sexuality: it failed to recognise the value and worth of the person as a parent, and was demeaning.
- As human rights derive from the inherent dignity of the human person, as recognised in the Preambles to the International Covenant on Civil and Political Rights (ICCPR) and the CRC, discrimination which infringes human dignity is likely to be particularly hard to justify under the ECHR. That being so, in our view a blanket ban on unmarried couples becoming eligible to adopt children would amount to unjustifiable discrimination on the ground of marital status, violating Article 14 combined with Article 8. We draw this to the attention of each House.
- Turning from the ECHR and the Human Rights Act 1998 to the obligations of the United Kingdom in international law; under the ICCPR Article 26, similar issues would arise in relation to any attempt to justify less favourable treatment for unmarried couples which would undoubtedly fall within the scope of that Article. We draw this, too, to the attention of each House.
E. The Compatibility of the Bill with Human Rights if it were to be amended in line with the Proposal by Lord Jenkin of Roding
- If the Bill were to be amended in line with the proposal by Lord Jenkin of Roding, so that only individuals and heterosexual mixed-sex couples would be eligible to adopt, the effect on human rights would be yet more complicated.
The rights of the children
- From the point of view of children, there would be a lesser risk of infringing their right to have their interests treated as paramount than we suggested (paragraph 22 above) was created by Earl Howe's amendment. On the other hand, there would be less opportunity to take account of the best interests of children systematically on a case by case basis than was available under the Bill as it was introduced to the House of Lords.
The rights of potential adopters
- The effect on potential adopters would be as follows. The Bill as amended would discriminate in straightforward ways against: (i) non-heterosexual (ie bisexual or homosexual), mixed-sex couples; and (ii) all same-sex couples, regardless of sexuality. The former would be direct discrimination on the ground of sexuality: non-heterosexual couples would be treated less favourably than heterosexual couples. The latter would be direct discrimination against homosexual couples on the ground of sex; it would also be indirect discrimination on the ground of sexuality, since a requirement to enter into a mixed-sex relationship might represent a more significant hurdle to homosexual than to heterosexual or bisexual people.
- It is clear, on the basis of the decision in Fretté v. France, supported by that in Salgueiro da Mouta v. Portugal and other cases mentioned above, that Article 14 of the ECHR combined with Article 8 would apply to these forms of less favourable treatment, although as noted above the reasoning in support of the decision could in our view usefully be reconsidered by the Court. The question would be whether this could be justified by reference to the legitimate aim of protecting the interests of children under ECHR Article 14. The state would have to show, by reference to credible evidence, that the discrimination is necessary in order to achieve the legitimate object (a less discriminatory provision being unlikely to succeed), and that the harm resulting from the discrimination is proportionate to the aim.
- The evidence produced so far for the proposition that such discrimination is necessary seems to us at present to be at best equivocal. The greater stability of married than unmarried relationships, relevant to some degree to Earl Howe's amendment, is not relevant to an amendment which is concerned, not with marriage, but with the sex of partners in a relationship other than marriage. As noted earlier, the risk that adoptive parents will abuse children sexually is no less present when a mixed-sex, heterosexual couple adopt a child of either sex than when a bisexual couple adopt a child, or a same-sex, homosexual couple adopt a child of the same sex. It seems to us to require further evidence before it could be shown that differential treatment provided by the Bill as amended by Lord Jenkin's amendment would be likely to have an objective and rational justification, particularly in view of the impact of discrimination on the dignity of those affected by a refusal to recognise their role in parenting (a point made by the Constitutional Court of South Africa in Du Toit v. de Vos, above). We are therefore not convinced, as a matter of principle, that a blanket prohibition on ever considering the merits of potential adopters in the excluded groups could be said to be necessary and proportionate to a legitimate aim so as to be justified under ECHR Article 14 combined with Article 8.
- For the reasons developed in section D, above, we doubt whether the majority decision in Fretté, holding that discrimination against same-sex couples in the adoption process can be justified, is correct in principle, and we believe that courts in the United Kingdom would prefer the reasoning of the dissenting minority in that case, and of the unanimous Constitutional Court of South Africa in Du Toit, to that of the majority in Fretté on this point. We therefore consider that a blanket ban on non-heterosexual and same-sex couples being considered as adoptive parents would be held to violate ECHR Article 14, combined with Article 8. We draw this to the attention of each House.
- Moving to the obligations of the United Kingdom in international law; under the ICCPR Article 26, similar issues would arise in relation to any attempt to justify less favourable treatment for non-heterosexual and same-sex couples which would undoubtedly fall within the scope of that Article. We draw this, too, to the attention of each House.
- We consider that the Adoption and Children Bill as originally introduced to the House of Lords would have been compatible with human rights.
- As amended at Report Stage in the House of Lords, the Bill may, in our view, no longer be compatible with the right of children to have their best interests treated as the paramount consideration under CRC Article 23, and is likely to be incompatible with the rights of unmarried couples, wishing to be considered jointly as potential adoptive parents, to be free from discrimination under ECHR Article 14 combined with Article 8, and under ICCPR Article 26.
- If the Bill were to be amended in line with Lord Jenkin's proposal, we consider that it might be incompatible with the right of children to have their best interests treated as the paramount consideration under CRC Article 23, and would probably be incompatible with the right of homosexual and same-sex couples, wishing to be considered jointly as potential adoptive parents, to be free from discrimination under ECHR Article 14 combined with Article 8, and under ICCPR Article 26.
- We draw these matters to the attention of each House.
31 Case CCT 40/01, judgment of 10 September 2002, CC of South Africa; see paras 11 and 16, above Back
32 See para.  of the judgment Back