Professor Paul Johnson’s research has been
cited in a landmark judgment issued by the Supreme Court of Bermuda.
Under Bermuda law, the couple could not
jointly adopt the child because joint adoption was available only to married
couples. The relevant legislation is section 28(1) of the Adoption Act 2006
which states:
no application shall be made for the adoption of a
child by more than one person except in the case of a joint application by a
married couple.
Same-sex couples cannot marry in Bermuda,
so the couple could not make a joint application to adopt their child.
Hellman J held that denying the couple the
opportunity to make a joint application amounted to direct discrimination
against unmarried couples because of their marital status, and indirect
discrimination against same-sex couples because of their sexual orientation.
In considering whether such discrimination was
justifiable, Hellman J assessed the jurisprudence of the European Court of
Human Rights (ECtHR) and, in particular, its judgment in Gas and Dubois v France. In Gas
and Dubois the ECtHR held that denying a person in a same-sex relationship the
opportunity to adopt their partner’s biological child, because such ‘step
parent’ adoption was only available to married couples in France (and, at that
point, same-sex couples in France could not marry), did not amount to
discrimination under the European Convention on Human Rights (ECHR). In
response to this, Hellman J stated:
The [ECtHR]
noted […] that for an issue to arise under art 14 [of the ECHR – prohibition on
discrimination] there must be a difference in the treatment of persons in
“relevantly similar situations”. They held […] that married couples and
unmarried couples were not in a relevantly similar situation as marriage
conferred a “special status” on those who enter it which gives rise to social,
personal and legal consequences. I do not understand how that is supposed to
provide a rational basis for prohibiting same-sex couples from adopting, and
the majority did not find it necessary to explain the point any further. As
Paul Johnson stated in a trenchant criticism of the decision in The Modern
Law Review, “the Court’s approach to
the question of ‘analogous situation’ in this case will strike many people as
perverse or obtuse”.
As a result of the judgment of the Supreme
Court of Bermuda, a joint application to adopt a child may now be made by an
unmarried couple, whether same-sex or different-sex.
This judgment is very significant, not only
for same-sex couples in Bermuda but also because it goes some way to rebut the approach
adopted by the ECtHR when considering complaints about discrimination by
same-sex couples. Bermuda, as a British Overseas Territory, is within the ECHR
system and the voice of its Supreme Court is, in this respect, very important.
There is a further connection between this
case and the Department of Sociology. Mr Peter Sanderson, who acted for the
same-sex couple in the Supreme Court, is a graduate of York Sociology. Peter
graduated in 2001 and now practices law in Bermuda, working at Wakefield Quin Limited which
is based in Hamilton.
Celia Kitzinger and Sue Wilkinson (Loughborough University) will be giving a talk about their ground-breaking case for legal recognition of their same-sex Canadian marriage in England - setting it in the context of the campaigns for marriage equality internationally.
