Thursday, 11th April 2013
Gibraltar court rules denial of joint adoption by lesbian couple illegal
by Dominique Searle
Gibraltar’s 2006 Constitution has halted the Gibraltar authorities from denying equal adoption rights to a local lesbian couple. The women were joined in a civil partnership in Scotland because they could not do so in Gibraltar.
The child, a baby girl known as ‘A’, is intimately theirs as one partner carried an ova donated from the other which was then fertilised by a sperm donor.
The case highlights the tension between rights afforded by the Gibraltar Constitution and European Court of Human Rights and the existing institutional procedures in Gibraltar.
The judgement is expected to lead to changes in legislation. It may also add pressure for adoption to be opened for unmarried heterosexual couples.
Yesterday evening the Government acknowledged that the ruling that Section 5 (2) of the Adoption Act in Gibraltar violates the Gibraltar Constitution by excluding a claimant in a same sex relationship from applying for an adoption order jointly with their partner.
“As a consequence of this very clear court ruling, Government has already taken steps to amend the legislation and the Care Agency, which is the body that deals with the recommendations for adoption, is reviewing policies to ensure that they are consistent with this decision,” stated Samantha Sacramento Minister for Equality and Social Services.
Chief Justice Anthony Dudley delivered his ruling yesterday amidst a warm welcome from gay rights activists and a very clear steer from the judge that what is being protected are family rights and that the court was following a duty under the Children’s Act to treat the welfare of the child as a ‘first and paramount’ consideration. The two women were granted anonymity and the complainant named ‘P’ is the same sex partner of ‘T’. The Attorney General Ricky Rhoda, assisted by Graceanne Gear, was the defendant but it was stipulated that although he defended the proceedings he also chose not to provide a defence or evidence that denied the alleged violation of the Constitution nor sought to justify it.
It was accepted by the court that P and T are in a “stable, committed, loving, monogamous, permanent and inter-dependent relationship.” In November 2010 they entered into a civil partnership in Scotland, where residence is not a requirement. Then, attending the London Women’s Clinic, P donated her ova to T who, with the aid of a sperm donor, had a baby girl.
It emerged that P, the ova donor, was unable to apply for adoption jointly with T: despite the genetic link between P and the baby girl; despite the civil partnership and; despite the fact that P has acted as a de facto parent.
This created the circumstances where, under Gibraltar’s rules as they have been implemented, the only option open to P was for her to apply for adoption as a single applicant. But that in turn would have meant that her partner would have to sever her own parental rights over the baby girl to whom she gave birth.
To date the Gibraltar authorities would only allow single persons or spouses to apply for adoption.
But Mr Justice Dudley concluded that on the facts before him it was evident that the relationship between P and T falls within the notion of ‘family life’.
“If P and T were an opposite sex couple there would be no doubt that A [the baby girl] although born out of wedlock would form part of that family unit.”
The judge said that the fact that this is a same sex couple can make no difference, that the girl is therefore part of that family unit thus engaging P’s legal right to ‘family life’.
“Any other outcome would create an artificial distinction between same sex and opposite sex couples and would be devoid of a rational basis. The fact that it is P’s ova from which A was conceived may arguably on the facts strengthen her case, but it seems to me that in these cases primacy ought not to be given to biological or genetic links but rather whether there are social familial ties, and whether the relationship is one of parent-child,” said the judgement.
The court also accepted the submission from P’s lawyer, John Restano of Hassans, that there had been direct and indirect discrimination stemming from P’s inability to adopt the baby girl with her same sex partner. Direct discrimination, in that if she were a man she would be able to marry T and thereby adopt A. Indirect discrimination, because she is unable to marry T due to her sexual orientation.
He said that the fact the Act applies to unmarried opposite sex couples does not redeem the constitutional invalidity of the provisions as heterosexual couples have the option of getting married whilst same sex couples do not.
The previous landmark Rodriguez case involving a Gibraltar same sex couple that went to the Rock’s ultimate British court, the Privy Council, and which involved the denial of a joint tenancy to a lesbian couple, was also a factor in the judgement. The judge determined, as a result of that case, that P was being discriminated against because of her sexual orientation.
However, Mr Justice Dudley made clear that he was not relying on evidence put to the court which saw Charles Trico, the secretary of the Equality Rights Group GGR, summarise reputable scientific research to the effect that there is no significant difference between children brought up by same-sex and opposite-sex couples.
“Interesting as that material is and although it corresponds with my wholly unscientific opinion that children can be brought up equally well (or equally badly) by married couples, same-sex couples, opposite-sex couples or single parents it is not evidence which is before me in the nature of expert opinion evidence subjected to the usual form of scrutiny which is to be expected in a trial,” said the judge adding that he was not relying on this evidence but that, in any case, it would have been incumbent on the Attorney General to establish a justification and P did not have to counter an argument that had not been advanced.
The Chief Justice, in the course of his judgement, made the observation that “in a way, the fact that P and T are in a same sex relationship highlights the irrationality of not allowing unmarried couples to adopt.”
The point made is that the current prohibition applies to unmarried opposite sex couples.
What action the Government now takes as a result of the judgement could well see unmarried couples as the next challengers to the legislation if it does not accommodate them too in any amendments.
In his judgement the Chief Justice also declared that, although it was not in the context of this action for him to make a determination as to the suitability or otherwise of P as an adoptive parent of baby girl A, “the fact that P and T have gone to another jurisdiction to have their relationship recognised and then together embarked on IVF treatment evidences the stability of their relationship and are clearly relevant factors when determining whether a second–parent adoption by P is in A’s best interest.”
He concluded that the couple’s Constitutional rights had been violated.