How Larkin's interjection in Austria has backfired
Published 01/03/2013 | 09:00
The Attorney General, John Larkin, may be ruing the day he went on a solo run in Europe. Campaigners for gay rights, on the other hand, must be taking sardonic pleasure in the outcome of his adventure.
Last week, the European Court for Human Rights (ECHR) ruled in favour of a lesbian couple who had complained that Austrian adoption laws had denied them their rights. The finding has implications for all 47 states of the Council of Europe.
Last year, the Attorney General decided to intervene at the Strasbourg court to attach Northern Ireland to the Austrian case. This has sharpened the significance of last week's ruling for the north.
The couple had applied to the Austrian courts in 2005 to give legal standing to the relationship between one of the women and the son of her partner by making the couple joint parents.
The three had been living together as a family unit for a number of years. A regional court rejected their plea.
In September 2006, the supreme court in Vienna endorsed the lower court's decision on the grounds that children are better-off raised by a male and female parent than by parents of the same sex.
The rights of the child, declared the court, can best be served "only when the adoption allows the biological family to be recreated as far as possible".
The ECHR has now ruled that it wasn't enough for the Austrian courts to declare a belief that different-sex parenting is in the best interests of the child: "No convincing reasons had been advanced to show that such difference in treatment was necessary for the protection of the family or for the protection of the interests of the child. Just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification or, as is sometimes said, particularly convincing and weighty reasons.
"Differences motivated solely by considerations of sexual orientation are unacceptable under the [European] Convention [on Human Rights]."
The law was, therefore, discriminatory under the terms of the convention and must be changed.
The ruling means that every prospective adoption must be considered in light of the best interests of the child – irrespective of whether the prospective parents are man and woman, or same-sex.
In September last year, the Attorney General joined in the case by delivering a closely-typed, 10-page submission to the court, backing the Austrian authorities and urging rejection of the couple's case. It appears that no other jurisdiction in any of the 47 member states had felt a need to intervene.
The Attorney General's initiative came as Mr Justice Treacy, at the High Court in Belfast, was considering a similar case brought by the Northern Ireland Human Rights Commission (NIHRC) on behalf of a Belfast lesbian couple: the NIHRC was hoping to bring coherence to a legal situation whereby a single person, gay or straight, could adopt a child as an individual, while only married heterosexual couples could adopt jointly.
Thus, for example, a single gay person could become an adoptive mother, or father, but neither an unmarried heterosexual couple in a stable relationship, nor a gay couple in a civil partnership, could jointly adopt.
In his submission to Strasbourg, the Attorney General defended this existing law: "The law of adoption in Northern Ireland has as its sole purpose the welfare of children; the gratification of a parental impulse or the desire to 'complete' a relationship are not relevant considerations."
The submission implicitly, but clearly, suggested that a childless couple, gay or straight, isn't a family. "Respect for family life presupposes the existence of a family and does not safeguard the desire to found one."
The Government moved swiftly to distance itself from the intervention. A Foreign Office official wrote to the Strasbourg court on September 26 last, saying: "I wish to make it clear that [the Attorney General's submission] does not represent the views of the UK Government."
The official pointed out that Northern Ireland, as an entity, has no legal standing in relation to the Council of Europe, or the European Convention, and added that: "We reserve the right to make any further comments on the general issue in due course." Further comment may now be superfluous. Viewed in local perspective, last week's ruling amounted to a comprehensive rejection of the Attorney General's argument. The main effect has been to buttress the case for gay adoption here, too.