In the Matter of M, High Court of Justice in Northern Ireland, United Kingdom (6 January 2004)
Application to adopt M, the child, by her long-term guardian, J; and an application by J and A, a same-sex couple, for a joint residence order regarding M.
M was placed in the care of J in 1992, when she was two-years old. At that time J was married to a man. She later divorced and began living with A, another woman. In 2002 J applied to adopt M. A guardian ad litem recommended that the adoption should take place.
Whether the Adoption (Northern Ireland) Order 1987 should be read to permit a lesbian woman to adopt a child.
Adoption and Children Act 2002, England and Wales, (defining a couple legally able to adopt as “two people (whether of different sexes or of the same sex) living as partners in an enduring family relationship”).
Adoption (Northern Ireland) Order 1987, Articles 9, 14, and 15(1).
Children Order 1995 of Northern Ireland, Article 3(3).
Re E (Adoption: Freeing Order) Court of Appeal of England and Wales, United Kingdom 1995 (holding that an unmarried lesbian’s sexuality should not affect her ability to adopt her foster child).
Re W (Adoption: Homosexual Adopter), High Court of Justice of England and Wales, Family Division, United Kingdom, 1997 (holding that homosexuals may adopt children).
T Petitioner, Inner House of the Court of Session, United Kingdom 1997 (holding there could be no fundamental objection to a gay man adopting a disabled child and raising that child with his same-sex partner).
Fretté v. France, ECtHR, 2002 (holding that the European Convention did not guarantee a right to adopt and that France had discretion over the issue of adoption by homosexuals because no consensus on the issue existed among member States).
Reasoning of the Court
The Adoption (Northern Ireland) Order 1987 did not permit an unmarried couple to adopt but permitted an unmarried single person to adopt. Furthermore, the Adoption Order made no mention of the sexual orientation of a prospective parent. The Court interpreted the Adoption Order as permitting “one member of a lesbian cohabitating couple” to adopt a child. In doing so, the Court stated: “The law is not moribund. It must move to reflect changing social values and a shifting cultural climate.”
The Court quoted the English decision, Re W (Adoption: Homosexual Adopter), which interpreted legislation comparable to the Adoption Order to permit adoption by a gay man. There the court said: “At the moment the 1970 Act is drawn in words so wide as to cover all these categories. If that concealed a gap in the intended construction of the Act then it was for Parliament and not the courts to close it.” The Court agreed with the approach taken in Re W.
The Court also considered the case of Fretté v. France, decided by the European Court of Human Rights in 2002. In Fretté the European Court held that no violation of Article 14 (non discrimination) occurred when the applicant was refused prior authorisation to adopt because he was a homosexual. The Court distinguished Fretté on three counts: (1) the Fretté case concerned a theoretical adoption whereas this case concerned a child who had been living with the applicant for 10 years; (2) here the best interests of the child were clearly served by the adoption; and (3) the social services agency responsible for the child had recommended adoption by J, while in Fretté the French authorities had rejected the applicant at a preliminary stage.
The Court concluded that the Adoption Order permitted: “adoption by a single applicant, whether he or she at that time lives alone or cohabits in a heterosexual, homosexual, lesbian or even asexual relationship with another person who it is proposed should fulfil a quasi parental role towards the child. Any other conclusion would be both illogical, arbitrary and inappropriately discriminatory in a context where the court’s duty is to regard the welfare of the child as the most important consideration.”
The Court also granted the application by J and A for a shared residence order with regard to the child. “It might only serve to cause confusion in her life if parental responsibility were to be vested on only one whereas equality in practice had prevailed as a matter of fact in the past between J and A. It is highly appropriate that both parties should be in a position to make decisions about this child especially if some unfortunate mishap were to befall J. … I have no doubt therefore that a Shared Residence Order in this context is entirely apposite, reflects the reality of this child’s life and is clearly in her best interests.”
In the Matter of M, High Court of Justice in Northern Ireland, United Kingdom (full text of judgment, PDF)