A and B v Director of Child and Family Services and Attorney General

• Jurisdiction: Bermuda
• Judgment Date: 03 February 2015
• Date: 03 February 2015
• Docket Number: Civil Jurisdiction 2014 No 308
• Court: Court of Appeal (Bermuda)

[2015] Bda LR 13

In The Supreme Court of Bermuda

Civil Jurisdiction 2014 No 308

Between:

A and B

Plaintiffs

and

Director of Child and Family Services

The Attorney General

Defendants

Mr P Sanderson for the Plaintiffs

Ms S Dill for the Defendants

The following cases were referred to in the judgment:

STEC v United KingdomHRC (2006) 43 EHRR 47

Marshall v Deputy GovernorUNK [2010] UKPC 9

Applin v Race Relations BoardELR [1975] AC 259

Conwell v Newham London Borough CouncilWLR [2000] 1 WLR 1

Catholic Care (Diocese of Leeds) v Charity CommissionWLR [2013] 1 WLR 2105

Re P and others (adoption: unmarried couple)ELR [2009] 1 AC 173

Gas v FranceHRC (2014) 59 EHRR 22

X and others v AustriaHRC (2013) 57 EHRR 14

Adoption by unmarried same-sex couple — Statutory interpretation — Human rights — Whether discrimination justifiable

RULING of Hellman J

Introduction

1. The Plaintiffs are an unmarried same-sex couple. They are raising a child together who was at the date of the hearing almost nine months old. They love the child and would like to adopt him. But they have been advised by the Department of Child and Family Services (‘DCFS’) that they must each make a separate application for adoption and that their respective applications will be processed separately by the DCFS and considered separately by the Family Court.

2. The Plaintiffs are unable to make a joint application for adoption because they are unmarried. They cannot marry in Bermuda because they are a same-sex couple, and if they were to get married elsewhere, as is their intent, their marriage would not be recognised under Bermudian law. Although both Plaintiffs are living in Bermuda, only one of them is a resident of Bermuda as that term is defined within the 2006 Act. The Plaintiffs are concerned that this may be an obstacle to the non-resident Plaintiff's application to adopt.

The Adoption Act 2006 (‘the 2006 Act’)

3. Section 2(3) of the 2006 Act provides that a resident of Bermuda is a person who, under the Bermuda Immigration and Protection Act 1956, (a) possesses Bermudian status; (b) is deemed to possess Bermudian status or is the spouse of a person who possesses Bermudian status; or (c) holds a permanent resident's certificate.

4. Section 25 of the 2006 Act sets out various grounds which give the court jurisdiction to make an adoption order. The grounds are alternatives not cumulative. One of them is that the applicant is a resident of Bermuda.

5. Section 28(1) of the 2006 Act prohibits the Plaintiffs from making a joint application for adoption. This provides that subject to subsection (2), which is not material:

‘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.’

6. Section 28(3) of the 2006 Act adds the qualification that, in order to apply to the court to adopt a child, a married couple must have been living together for a continuous period of not less than one year immediately prior to their application.

7. The Plaintiffs find the situation thoroughly unsatisfactory. Throughout the adoption process their suitability to adopt the child will be assessed separately when in reality they will be raising the child as a couple. They submit that this is artificial and demeaning, and means that their adoption applications will be processed and determined on a false premise. To take just one aspect of the adoption procedure, the completion by the DCFS of a home study report, this will involve an unnecessary duplication of both costs – two Home Study fees of $2,295.00 rather than one – and activities, such as interviews and meetings, which could conveniently be undertaken jointly. To cap it all, it is not at all clear whether the Family Court would have jurisdiction to make separate but concurrent adoption orders in favour of both Plaintiffs. Those, at any rate, are the Plaintiffs' concerns.

Relief sought

8. The Plaintiffs have issued an originating summons in which they seek, amongst other remedies, a declaration that sections 2(3) and 28 of the 2006 Act must be read so as to be compatible with the Human Rights Act 1981 (‘the 1981 Act’) and thereby allow committed same-sex couples/resident same-sex partners of Bermudians to apply for adoption. As this is purely a matter of statutory interpretation the Court has previously directed that it be tried as a preliminary issue.

Human Rights Act 1981

9. The Plaintiffs' application is brought pursuant to section 30B of the 1981 Act, which is to be read in conjunction with section 29 of that Act. The sections provide:

‘Power of Supreme Court

29 (1) In any proceedings before the Supreme Court under this Act or otherwise it may declare any provision of law to be inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act unless such provision expressly declares that it operates notwithstanding this Act.

(2) The Supreme Court shall not make any declaration under subsection (1) without first hearing the Attorney-General or the Director of Public Prosecutions.

Primacy of this Act

30B (1) Where a statutory provision purports to require or authorize conduct that is a contravention of anything in Part II, this Act prevails unless the statutory provision specifically provides that the statutory provision is to have effect notwithstanding this Act.

(2) Subsection (1) does not apply to a statutory provision enacted or made before 1st January 1993 until 1st January 1995.’

10. The 2006 Act does not contain any provision that either section 2(3) or section 28 are to operate or have effect notwithstanding the 1981 Act.

11. Part II of the 1981 Act is headed ‘Unlawful Discrimination’. Within Part II, section 5 provides:

‘Provision of goods, facilities and services

5 (1) No person shall discriminate against any other person due to age or in any of the ways set out in section 2(2) in the supply of any goods, facilities or services, whether on payment or otherwise, where such person is seeking to obtain or use those goods, facilities or services, by refusing or deliberately omitting to provide him with any of them or to provide him with goods, services or facilities of the like quality, in the like manner and on the like terms in and on which the...