Belfast Telegraph

Tuesday 29 July 2014

Are we so proud of adoption sham we need to export it?

Inequal rights: gay couples are prohibited from adoption here, a rule Attorney General John Larkin has urged the ECHR to heed

Gays along the Danube are asking for equality, but the man from Belfast has something to say about it. Attorney General John Larkin isn’t happy at moves to give gay and lesbian couples in Austria the right to adopt.

He’s asked the European Court of Human Rights (ECHR) to pay heed to the way these matters are handled in Northern Ireland before making any final decision on the basis of the Austrian evidence.

If the Attorney General were a fellow in the corner of a bar, giving out about the need to protect the plain people of Ulster from decadent foreign notions, we might all agree that he’s entitled to his opinion and leave it at that.

But, because of the office he holds, his intervention in the case of X and Others v Austria is being taken seriously — not least by campaigners for gay rights and equality across Europe.

X and Others are arguing that Austrian law breaches the equality provisions of the European Human Rights Convention by making an unjustified distinction between heterosexual and homosexual couples in relation to key aspects of adoption.

The Attorney General’s main concern, set out in a submission delivered in Strasbourg on June 29, has to do with the fact that, “Any decision made by the ECHR in relation to the application in X and Others v Austria will have a significant influence on the outcome of any future litigation within Northern Ireland on the issues raised.”

The current legal position in Northern Ireland is that the only people who can adopt as a couple are married heterosexuals. Gay or straight single people can adopt as individuals.

But gay people lose any right to adopt, jointly or singly, if they enter a civil partnership. (Readers might think that this doesn’t make sense. And they’d be right. But this is Northern Ireland. And it's the law.)

The Attorney General points out that, “At the present time, there is litigation in Northern Ireland raising very similar issues to those in the present [Austrian] case.”

He believes in light of this that, as the “guardian of the rule of law in Northern Ireland”, he has a right to be heard.

Moreover, he suggests, the ECHR would benefit in its deliberations from examination of the issues from the perspective of a “common law country”.

This raises the subtle and interesting question of what “common law country” he has in mind.

Northern Ireland is not, to the chagrin of some, a country. The common law jurisdiction of which it is part is the United Kingdom.

The Attorney General cannot speak for the UK. He has been given permission to make submissions to the ECHR: but in whose name will he be speaking?

The Attorney General is chief legal adviser to the Executive and acts for the Executive in the courts. Is he acting for the Executive in this matter?

Has he consulted the Executive department relevant to his office — the Office of First Minister and deputy First Minister? Or any department?

The litigation in the north to which the Attorney General refers was launched in December last year when the Human Rights Commission challenged the failure of the Department of Health to move to deal with the anomaly unearthed in the P case in 2008. The House of Lords declared in ‘P’ that the complete ban on joint adoption by unmarried couples, gay or straight, was illegal. At that time, lawyers for the Northern Ireland Government were understood by all to say that the blanket ban had arisen inadvertently.

By last December, however, nothing had changed, at which point the Northern Ireland Human Rights Commission went to the High Court and asked for a judicial review.

Responding, the Attorney General now revealed that the ‘P’ case anomaly wasn’t inadvertent after all, but had been fully intended.

The prospective adoptive parents in ‘P’ were an unmarried heterosexual couple in a stable and loving relationship. The woman was the biological mother of the child.

But it had been consciously, deliberately decided to deny such a couple the right to adopt such a child.

So there’s nothing wrong with the law that now needs fixed — particularly the bits that ban gay partners, too, from adoption. Is that the Attorney General’s position, which he wants to give the rest of Europe the benefit of?

And no one up at Stormont seems to want to shout out: not in my name.

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