Paul Johnson cited by the Supreme Court of Bermuda

Professor Paul Johnson’s research has been cited in a landmark judgment issued by the Supreme Court of Bermuda.

In A & B v Director of Child and Family Services & Attorney General, the Supreme Court of Bermuda found in favour of a same-sex couple who complained that their inability to jointly adopt a child, who they have been raising together, constituted unlawful discrimination.

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.