The Northern Ireland Court of Appeal dismissed a challenge on Thursday by the Department of Health to overturn a seminal High Court ruling that the prohibition on same-sex and unmarried couples adopting children is unlawful. Centred around judicial review proceedings was the blanket ban imposed under the Adoption (Northern Ireland) Order 1987.
In October 2012 the relationship status based ban was held to discriminate against those in civil partnerships. The High Court found excluding couples based on their relationship status limited the pool of potential adopters and could not be in the best interests of the children.
The High Court verdict came in a legal challenge mounted by the Northern Ireland Human Rights Commission. The Commission was seeking to force a legislative change to bring adoption laws into line with the United Kingdom.
In the United Kingdom, Scotland, and Wales, unmarried couples can apply jointly to be considered for adoption regardless of sexual orientation.
Attorney General for Northern Ireland appealed against the High Court ruling on behalf of the Department of Health. John Larkin QC argued that the criteria as it stood is lawful and appropriate and that the criteria serves in the best interests of the children.
Lord Justice Garvan held that the Department of Health failed to provide a proper explanation for why same-sex couples are ineligible once the relationship has been publicly cemented:
This cannot provide a rational basis or justification for the differential treatment of those in a civil partnership compared to same-sex couples outside a civil partnership.
Lord Justice Garvan expressed regret that until recently the website of the Department of Health failed to provide correct advice on the issue:
If it is to avoid being misleading Departmental guidance must take account of the effect of the law as it currently stands. It must take account of the outcome of the present appeal.
The Department of Health could seek to challenge the ruling in the British Supreme Court.
