Yet another interesting legal battle is looming in relation to gay rights and discrimination. This time, the case has emerged from Northern Ireland.
The Northern Ireland Human Rights Commission challenged "the adoption legislation on grounds that it is unjustifiably discriminatory in acting as a bar to unmarried couples and those in a civil partnership from even being considered as potential adopters".
By way of background, it should be noted that Northern Ireland recognises civil partnerships, that is homosexual couples who have gone through a civil ceremony of marriage, as well as the rights of cohabiting homosexual couples. The adoption law, however, makes no provision for homosexual couples to adopt children. It actually states that an adoption order shall only be made in favour of more than one persons where those two persons are a married husband and wife who are older than 21 years of age.
Effectively, this means that unmarried couples, regardless of sexual orientation, cannot adopt children together. The law also prevents registered civil partners from adopting children individually.
In deciding the case at first instance, the judge found that no-one has a right to adopt a child. He said, "The sole purpose of adoption is to advance and promote the welfare of the child, the subject of the adoption proceedings. The statute creates an opportunity in the form of a right to apply to be considered for adoption." The adoption law imposes eligibility criteria which deny unmarried couples the legal opportunity to apply to adopt jointly, while that opportunity is available to those who enjoy the status of being married. The judge considered the House of Lords decision in the case of Re G and found that the eligibility criteria could not be justified.
eligible to adopt
He also found that it was discriminatory that single individuals had the right to apply to adopt a child, while unmarried individuals in registered civil partnerships did not have that right. This meant that "a gay or lesbian person must choose between being eligible to adopt or affirming their commitment in public in a civil partnership ceremony." The illogical conclusion is that before a gay couple enters into a civil partnership, they would be eligible to be considered for adoption as a couple, but not after they enter into that partnership.
The commission succeeded both at first instance and in the Court of Appeal, and one headline said, "Court 'forces' gay adoption on Northern Ireland". The explanation for this headline is that the Northern Ireland health minister has vowed to appeal the ruling. The report also said that "an official public consultation into whether to allow gay adoption in Northern Ireland showed that 95 per cent of respondents were opposed to the move".
The outcome of an appeal to the UK Supreme Court will be particularly interesting, because England and Wales have already legalised joint adoptions by homosexual couples and Scotland enacted legislation to enable cohabiting homosexual and heterosexual couples to adopt children.
Sections 9 and 10 of the Jamaican Children (Adoption of) Act set out some of the eligibility requirements to apply to adopt a child. Read together, the sections allow joint applications only if they are made by two spouses, and one applicant must be:
at least 25 years of age,
or at least 18 years of age and a relative of the child,
or is the mother or father of the child.
The act does not define 'spouse', so it is likely to be limited to a married couple. Also, given the fact that the legislations in Jamaica which expand the definition of spouse still limit that definition to mean a single man and a single woman cohabiting with a single woman or single man as if they were, in law, husband and wife, it is unlikely that a homosexual couple will be allowed to make a joint application to adopt a child in Jamaica.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to firstname.lastname@example.org or email@example.com on twitter @lawsofeve