|Judgments - In re P and others (AP) (Appellants) (Northern Ireland)
HOUSE OF LORDS
 UKHL 38
on appeal from:  NICA 20
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re P and others (AP) (Appellants) (Northern Ireland)
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
John O'Hara QC
(Instructed by Emmet J Kelly & Co)
Bernard McCloskey QC
(Instructed by Departmental Solicitors Office)
Michael Lavery QC
(Instructed by Official Solicitor to the Supreme Court)
23 AND 24 APRIL 2008
WEDNESDAY 18 JUNE 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re P and others (AP) (Appellants) (Northern Ireland)
 UKHL 38
(1) An adoption order shall not be made on the application of more than one person except in the circumstances specified in paragraph[s] (2)
(2) An adoption order may be made on the application of a married couple where both the husband and the wife have attained the age of 21 years.
"enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
" [T]he marriage gives the husband and wife a new legal position from which flow both rights and obligations with regard to the rest of the public. The status so acquired may vary according to the laws of different communities."
"27 This applicant differs from a married father only as regards the issue of marital status and may, for the purposes of this application, claim to be in an relevantly similar position.
28. The justification for the difference in treatment relied on by the Government is the special regime of marriage which confers specific rights and obligations on those who choose to join it. The Court recalls that it has in some cases found that differences in treatment on the basis of marital status has had objective and reasonable justification It may be noted however that as a general rule unmarried fathers, who have established family life with their children, can claim equal rights of contact and custody with married fathers.... In the present case, the applicant has been acknowledged as the father and has acted in that role. Given that he has financial obligations towards his daughter, which he has duly fulfilled, the Court perceives no reason for treating him differently from a married father, now divorced and separated from the mother, as regards the tax deductibility of those payments. The purpose of the tax deductions was purportedly to render it easier for married fathers to support a new family; it is not readily apparent why unmarried fathers, who undertook similar new relationships, would not have similar financial commitments equally requiring relief.
29. The Court concludes therefore that there has been a violation of Article 14 of the Convention in conjunction with Article 1 of the first Protocol in this case."
"In deciding on any course of action in relation to the adoption of a child, a court or adoption agency shall regard the welfare of the child as the most important consideration and shall
(a) have regard to all the circumstances, full consideration being given to
(i) the need to be satisfied that adoption, or adoption by a particular person or persons, will be in the best interests of the child; and
(ii) the need to safeguard and promote the welfare of the child throughout his childhood; and
(iii) the importance of providing the child with a stable and harmonious home; and
(b) so far as practicable, first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."
"The applicants contended that the operation of the leasehold reform legislation is indiscriminate since it does not provide any machinery whereby the landlord can seek an independent consideration, in any particular case, of either the justification for enfranchisement or the principles on which the compensation is to be calculated, once only it is established that the tenancy is within the ambit of the legislation. They pointed to evident differences between leasehold tenants of modest housing in South Wales and the better off, middle-class tenants on their Estate in Belgravia, who on the whole could not be classified as needy or deserving of protection. In their submission, in order to avoid injustice for the landlord as well as the tenant, the legislation should have provided for judicial review going into the details and reasonableness of each proposed enfranchisement.
Such a system may have been possible, and indeed a proposal to this effect was made during the debates on the draft legislation However, Parliament chose instead to lay down broad and general categories within which the right of enfranchisement was to arise. The reason for this choice, according to the Government, was to avoid the uncertainty, litigation, expense and delay that would inevitably be caused for both tenants and landlords under a scheme of individual examination of each of many thousands of cases. Expropriation legislation of wide sweep, in particular if it implements a programme of social and economic reform, is hardly capable of doing entire justice in the diverse circumstances of the very large number of different individuals concerned.
It is in the first place for Parliament to assess the advantages and disadvantages involved in the various legislative alternatives available. In view of the fact that the legislation was estimated to be likely to affect 98 to 99 per cent of the one and a quarter million dwellinghouses held on long leases in England and Wales, the system chosen by Parliament cannot in itself be dismissed as irrational or inappropriate."
"Its justification did not depend upon the greater need of any particular widow but upon a perception that older widows as a class were likely to be needier than older widowers as a class or, for that matter, younger widows as a class. No doubt means testing would have been more discriminating but the use of more complicated criteria increases the expense of administration and reduces take-up by those entitled."
"Mr Gill emphasised that the twenty-fifth birthday was a very arbitrary line. There could be no relevant difference between a person the day before and the day after his or her birthday. That is true, but a line must be drawn somewhere. All that is necessary is that it should reflect a difference between the substantial majority of the people on either side of the line. If one wants to analyse the question pedantically, a person one day under 25 is in an analogous, indeed virtually identical, situation to a person aged 25 but there is an objective justification for such discrimination, namely the need for legal certainty and a workable rule."
"In their current form the impugned provisions exclude from their ambit potential joint adoptive parents who are unmarried, but who are partners in permanent same-sex life partnerships and who would otherwise meet the criteria set out in section 18 of the Child Care Act Their exclusion surely defeats the very essence and social purpose of adoption which is to provide the stability, commitment, affection and support important to a child's development, which can be offered by suitably qualified persons Excluding partners in same sex life partnerships from adopting children jointly where they would otherwise be suitable to do so is in conflict with the principle [of the paramountcy of the interests of the child] It is clear from the evidence in this case that even though persons such as the applicants are suitable to adopt children jointly and provide them with family care, they cannot do so. The impugned provisions thus deprive children of the possibility of a loving and stable family life The provisions of the Child Care Act thus fail to accord paramountcy to the best interests of the children "
"40. [T]he Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States
41. It is indisputable that there is no common ground on the question. Although most of the Contracting States do not expressly prohibit homosexuals from adopting where single persons may adopt, it is not possible to find in the legal and social orders of the Contracting States uniform principles on these social issues on which opinions within a democratic society may reasonably differ widely. The Court considers it quite natural that the national authorities, whose duty it is in a democratic society also to consider, within the limits of their jurisdiction, the interests of society as a whole, should enjoy a wide margin of appreciation when they are asked to make rulings on such matters. By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. Since the delicate issues raised in the case, therefore, touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, a wide margin of appreciation must be left to the authorities of each State."
" [O]n the question of proportionality, we might conceivably accept the Government's view that some margin of appreciation should be afforded to States in the sensitive area of adoption by homosexuals. It is not for the Court to take decisions (or pass moral judgment) instead of States in an area which is also a subject of controversy in many Council of Europe member States, especially as the views of the French administrative courts also seem to be divided. Neither is it for the Court to express preference for any type of family model. On the other hand, the reference in the present judgment to the lack of 'common ground' in the contracting States or 'uniform principles' on adoption by homosexuals , which paves the way for States to be given total discretion, seems to us to be irrelevant, at variance with the Court's case-law relating to Article 14 of the Convention, and when couched in such general terms, liable to take the protection of fundamental rights backwards.
It is the Court's task to secure the rights guaranteed by the Convention. It must supervise the conditions in which Article 14 of the Convention is applied and consider therefore whether there was a reasonable, proportionate relationship in the instant case between the methods used - the total prohibition of adoption by homosexual parents - and the aim pursued - to protect children. The Conseil d'Etat's judgment was a landmark decision but it failed to carry out a detailed, substantive assessment of proportionality and took no account of the situation of the persons concerned. The denial was absolute and it was issued without any other explanation than the applicant's choice of lifestyle, seen in general and abstract terms and thus in itself taking the form of an irrebuttable presumption of an impediment to any plan to adopt whatsoever. This position fundamentally precludes any real consideration of the interests at stake and the possibility of finding any practical way of reconciling them."
"91. Where sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within Article 8
93. In the Court's opinion, if the reasons advanced for such a difference in treatment were based solely on considerations regarding the applicant's sexual orientation this would amount to discrimination under the Convention
96. the Court cannot but observe that, in rejecting the applicant's application for authorisation to adopt, the domestic authorities made a distinction based on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention."
" provides no support for the view that it could legitimately be regarded as necessary and proportionate to the aim of protecting the best interests of the child to prevent all unmarried couples, including mixed-sex couples, from being eligible to adopt, regardless of the merits of the individual case (my emphasis)."
"According to the European Court of Human Rights, discrimination on the grounds of marital status is particularly difficult to justify. Thus, the current provisions of the 1987 Order, which exclude unmarried couples from adoption, would appear prima facie to be incompatible with the Convention insofar as they constitute arbitrary discrimination on the grounds of marital status."
"20. In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295, para 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
LORD HOPE OF CRAIGHEAD
"There can be no more fundamental principle in adoption cases than that it is the duty of the court to safeguard and promote the interests of the child. Issues relating to the sexual orientation, lifestyle, race, religion or other characteristics of the parties involved must of course be taken into account as part of the circumstances. But they cannot be allowed to prevail over what is in the best interests of the child."
As Mr Lavery put in his written case for the child, where children are involved in any matter their rights are almost universally recognised as paramount. The aim sought to be realised in regulating eligibility for adoption is how best to safeguard the interests of the child. Eligibility simply opens the door to the careful and exacting process that must follow before a recommendation is made. The interests of the child require that this door be opened as widely as reasonably possible. Otherwise there will be a risk of excluding from assessment couples whose personal qualities and aptitude for child rearing are beyond question. To exclude couples who are in an enduring family relationship from this process at the outset simply on the ground that they are not married to each other would be to allow considerations favouring marriage to prevail over the best interests of the child. I do not think that this can be said to be either objectively justified or proportionate. From this it must follow that the appellants' exclusion from eligibility would be incompatible with their Convention rights as it would be discriminatory.
LORD WALKER OF GESTINGTHORPE
The legislative background
"The problems that face society in Northern Ireland are not always precisely the same as those that affect Great Britain. Equally social attitudes and social norms in Northern Ireland do not always match those in Great Britain."
Ms Conlon has sworn five affidavits in this matter, the first on 13 October 2004 and the most recent on 11 April 2008. Her affidavits and their exhibits have provided your Lordships with a lot of helpful background material, untendentiously presented. Her affidavits and their exhibits also cover developments which have taken place during the course of the litigation.
"(1) An adoption order may be made on the application of a couple where both of them have attained the age of 21 years.
(2) An adoption order may be made on the application of a couple where
(a) one of the couple is the mother or the father of the person to be adopted and has attained the age of 18 years, and
(b) the other had attained the age of 21 years."
Section 144(4), as amended by section 79 of the Civil Partnership Act 2004, defines a couple:
"In this Act, a couple means
(a) a married couple, or
(aa) two people who are civil partners of each other or
(b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship."
Section 144(5) and (6) exclude closely-related persons from the scope of section 144(4).
"1.The law shall permit a child to be adopted:
(a) by two persons of different sex
(i) who are married to each other, or
(ii) where such an institution exists, have entered into a registered partnership together;
(b) by one person.
2. States are free to extend the scope of this Convention to same-sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this Convention to different-sex couples and same-sex couples who are living together in a stable relationship."
So the general position throughout the Council of Europe appears to be in a transitional state. The same seems to be true under the jurisprudence of the European Court of Human Rights, as appears from the recent decisions in Fretté v France (2002) 38 EHRR 438 and EB v France (22 January 2008) discussed in the opinion of my noble and learned friend Lord Hoffmann.
"(1) An Adoption Order shall not be made on the application of more than one person except in the circumstances specified in paragraphs (2) and (3).
(2) An Adoption Order may be made on the application of a married couple where both the husband and the wife have attained the age of 21 years.
(3) An Adoption Order may be made on the application of a married couple where
(a) the husband or the wife
(i) is the father or mother of the child; and
(ii) has attained the age of 18 years; and
(b) his or her spouse has attained the age of 21 years.
(4) An Adoption Order shall not be made on the application of a married couple unless at least one of them is domiciled in a part of the United Kingdom, or in any of the Channel Islands or in the Isle of Man."
Human Rights Act 1998
"In the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the [public] authority was acting so as to give effect to or enforce those provisions."
Adoption in Northern Ireland
"3.36 The current eligibility criteria are problematic for the following reasons. Like other aspects of the Adoption Order, they do not necessarily reflect contemporary society and may unnecessarily restrict opportunities for children to find permanent, loving families to support them throughout their childhood and into adult life. The marriage requirement for joint adoption applications does not reflect the reality of modern life where many people in long-term relationships cannot or simply do not wish to marry."
There is then some discussion of adoption by one only of a couple, followed by:
"3.38 It is important to remember, however, that adoption is primarily a service for children. There is therefore no right for any person to adopt a child. A person's eligibility to adopt under the law is only the most basic consideration for adoption agencies. The much more crucial test is the suitability of the prospective adopter to adopt a child."
There is then discussion of the need for very careful assessment of prospective adopters, followed by:
"3.39 . . . Many prospective adopters approach adoption wishing to adopt a healthy baby. However, as outlined in the previous chapter, there are very few healthy babies who need adoption in Northern Ireland today. Indeed, it is a global phenomenon that the demand for the type of children usually sought by adopters does in fact exceed the availability of such children."
"We are aware that material was circulated in some circles, providing advice on how to respond to the consultation. This material stressed that it was not necessary to read the consultation document and the Department is concerned that, without having done so, many respondents may not have fully understood the nature of the reform being proposed. It is clear that most of the objections outlined are concerned with the ability of unmarried heterosexual or homosexual couples to parent a child. We have tried to clarify, however, that people in unmarried couples (same sex or otherwise) can already adopt in Northern Ireland but that only one partner in the relationship can become the legal parent. The other obtains parental responsibility through a less permanent legal order. The change proposed, therefore, is not to enable people in unmarried relationships to adopt where they previously could not.
Children can and have been placed with single adopters in unmarried relationships, where agencies have considered that to be in the child's best interests, under the existing legislation. We do not believe that where children would otherwise be placed in these circumstances, the law should deny them two legal parents.
The Department therefore intends to proceed to amend the legislation as proposed. The key features of the policy will be that:
*The welfare of children will be the determining consideration for any agency;
*Assessment will be the major factor in determining the suitability of any applicant; and
*There will continue to be no right for any person to adopt."
"I would respectfully point out that the current policy may be subject to change on the restoration of the local Assembly. It will require the approval of the incoming Minister and the Executive. If legislation is sanctioned, the legislative programme will also be determined by the Executive. Any new legislation will require the development of a significant raft of subordinate legislation and extensive guidance before it can be brought fully into operation. For these reasons it is not possible to offer any realistic or reliable timetable for the implementation of the necessary legislation in this regard."
"Profile of Children
6. The majority of children needing adoption today are no longer healthy babies, 'given up' for adoption by parents with whom they will have no contact. They are more usually slightly older children in the care system, often with health or emotional difficulties incurred through a background of abuse or neglect. They generally know their birth families and it is important in many cases that they continue to have some degree of contact with them. As mentioned earlier, the life outcomes for children who spend long periods in care are extremely poor compared to their peers outside the care system. Despite the evidence to suggest the success of adoption in providing secure families for children, the numbers of children adopted from care remain low.
Profile of Adopters/Support
7. Whilst the profile of children has changed, the wishes and expectations of the traditional profile of adopters has not, with the result that increasing numbers of prospective adopters in Northern Ireland are choosing to adopt a child from abroad, where there are healthy babies with limited likelihood of contact with birth families. The implications of this are twofold:
*Firstly, we need to ensure that the opportunities for Northern Ireland's children to find permanent families to support them into adult life are not unnecessarily restricted; and
*Secondly, both adopted children and their new families need significant levels of support if these new families, created by the state, are to succeed.
Adoption by Unmarried Couples
8. In view of the necessarily rigorous assessment process to which every person who wishes to adopt is subject, there are very few criteria set out in law which would automatically preclude people from adopting a child. A person's eligibility to adopt under the law is only the most basic consideration for adoption agencies. The much more crucial test is the suitability of the prospective adopter to adopt a child. Despite this, the law does require that where a couple wish to jointly adopt a child, they must be married."
"No more, but certainly no less"
"The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
The full quotation is set out in para 30 of Lord Hoffmann's opinion. I read the guidance as having a rather wider application.
"must be a matter for deliberation and decision by Parliament when the forthcoming Bill is introduced."
I reach this conclusion for three reasons. First, it is far from clear that the Strasbourg Court would hold that the Adoption Order infringes the European Convention on Human Rights. So long as the 1967 Convention remains in force the Court would be more likely, in my opinion, to reach the opposite conclusion. Second, the decision to be made is one that ought to be made by a democratically-elected legislature. Third, your Lordships' House can deal with this matter only by the blunt instrument of a declaration as to the position of the Family Division under section 6(1) of the Human Rights Act 1998. This would, I think, put the Family Division, and the other officials and agencies involved in the adoption process, in a difficult position. Ms Conlon's fourth and fifth affidavits refer to the amount of work (involving subordinate legislation and departmental guidance) which would be necessary to give full effect to the legislative change. That is one of the reasons why it is likely to take some time. If instead your Lordships make the order which Lord Hoffmann proposes, judges, lawyers, officials and agencies would be faced with a very abrupt change in the law. No doubt they would all do their best to cope with that new situation but I suspect that there would be many practical difficulties.
BARONESS HALE OF RICHMOND
Adoption law and practice
"(1) An adopted child shall be treated in law -
(a) where the adopters are a married couple, as if he had been born as a child of the marriage (whether or not he was in fact born after the marriage was solemnised);
(b) in any other case, as if he had been born to the adopter in wedlock
(2) An adopted child shall . . . be treated in law as if he were not the child of any person other than the adopters or adopter."
Thus an adoption order does far more than deprive the birth parents of their parental responsibility for bringing up the child and confer it upon her adoptive parents (provided for in article 12). It severs, irrevocably and for all time, the legal relationship between a child and her family of birth. It creates, irrevocably and for all time (unless the child is later adopted again into another family), a new legal relationship, not only between the child and her adoptive parents, but between the child and each of her adoptive parent's families. Their parents become her grandparents, their brothers and sisters her uncles and aunts. References to a parent, child or any other relationship in a statute or legal instrument (such as a will) automatically include an adoptive relationship unless it is specifically excluded.
The debate about unmarried adopters
"26.10 . . . unmarried parents do not have the same legal obligations to one another as a married couple have. Should the relationship break down, the caring parent may therefore be less financially secure than if they were married. Furthermore, one of the special features of adoption is that it transfers a child from one family to another and gives the child a legal relationship with all members of the new family, including grandparents, aunts and uncles. However great the commitment of unmarried adoptive parents to a child might be, it is open to question how far their wider families would be willing to accept that child as part of their family.
26.11 It is also important to bear in mind Article 6(1) of the European Adoption Convention  which prohibits adoption by unmarried couples. Although some unmarried couples might be suitable adoptive parents for a child, we feel that the security and stability which adopted children need are still more likely to be provided by parents who have made a publicly recognised commitment to their relationship and who have legal responsibilities towards each other."
At the same time, as the Review recognised,
"26.13 We do not propose any changes to the law relating to single applicants, including lesbians and gay men. There are examples of extremely successful adoptions, particularly of older children and children with disabilities, by single adopters. Some children are only able to settle in single parent households, as a result of experiences in their early lives.
26.14 Some agencies may place a child with a single applicant who is living with a partner. As a matter of practice, to safeguard the child, they also assess the suitability of the partner. We have suggested above that an unmarried couple should not be allowed to adopt jointly . . . We do not feel that this is necessarily incompatible with allowing a single person who has a partner to adopt."
"What is clear, however, is that in accordance with the second requirement of article 14 - that of proportionality - excluding an entire category of persons in a blanket manner may not be Convention compliant. Thus, while it may be legitimate to devise criteria to determine the suitability of those seeking to become adoptive parents, at the same time, a weighty argument (supported by the principle of proportionality) can be made for the application of a case by case approach to ensure that the child's best interests are properly met in each individual situation."
". . . the State has a duty to protect the rights of everyone in society irrespective of racial grouping, religious belief, political opinion, marital status, age, gender, sexual orientation, disability and dependency. . . . men and women who are unmarried regardless of sexual orientation can currently already legally adopt so the current proposal to enable joint adoption where unmarried people are living in a stable relationship is simply an extension of the existing provision to provide greater stability for the child." (para 5.2.10)
"The . . . object of this proposal is primarily to enable children who would otherwise have been placed with unmarried carers to benefit from having two legal parents. While the proposals will not dramatically increase the pool of potential adopters, it is important that we try to find the best possible family for children outside their birth family and if the best route to permanence for an individual child is with a couple who are not married, the law should not stand in the way of that." (para 5.2.23)
Compatibility with Convention Rights
Is this within the Strasbourg margin of appreciation?
The consequences in the United Kingdom
"The convention is often described as a 'living instrument' because it is interpreted by the European Court in the light of present day conditions and therefore reflects changing social attitudes and the changes in the circumstances of society. In future our judges will be able to contribute to this dynamic and evolving interpretation of the Convention."
For what it is worth, there were also clear statements by the Home Secretary in the House of Commons (Hansard (HC Debates), 16 February 1998, Vol 306, col 768) and by the Lord Chancellor in the House of Lords (Hansard (HL Debates), 18 November 1997, Vol 583, cols 514-515) that the courts must be free to develop human rights jurisprudence and to move out in new directions.
" .. the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights [Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, 296, para 10 fine]. The Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted (Article 26)
Consequently, Article 10 para. 2 leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator ('prescribed by law') and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force force [Engel v The Netherlands (1976) EHRR 684, para. 100; cf., for Article 8(2), De Wilde, Ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, 412, para. 93, and Golder v United Kingdom (1975) 1 EHRR 524, 539, para. 45)."
At the international level, the margin is not unpoliced by the European Court of Human Rights. The European Court sets its parameters by taking a European view of the acceptability of the aims and proportionality of the measure in issue. But the width of the margin thus identified may vary not only with the nature of the right protected, but also with the extent to which the Court is able to identify a common approach or common standards among member states.
Issue (a) - are articles 8 and 14 engaged?)
"Just as there can be no analogy between married and Civil Partnership Act couples, on one hand, and heterosexual or homosexual couples who choose to live together but not to become husband and wife or civil partners, on the other hand (see Shackell, above), the absence of such a legally binding agreement renders their relationship of co-habitation, despite its long duration, fundamentally different to that of a married or civil partnership couple."
Issue (b) - was there unjustifiable discrimination?
" . whilst I did vote with the majority in favour of finding that there had not been a violation that was because, in my view, the Articles of the Convention relied on were not applicable because the Convention does not guarantee a right to adopt (but the Chamber did not agree with my reasoning on that point, and I will not go into it again here - perseverare diabolicum)".
So, instead of repeating his stance in Fretté v. France, he accepted in E.B. v. France that articles 8 and 14 were engaged. But he considered that on its facts the French authorities' decision could be justified by reference to the applicant's partner's disinterest in the adoption plan.
"States are free to extend the scope of this Convention to same sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this Convention to different sex couples and same sex couples who are living together in a stable relationship."