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

• Jurisdiction: Bermuda
• Judgment Date: 03 February 2015
• Neutral Citation: [2014] SC Bda 11 Civ
• Date: 03 February 2015
• Docket Number: CIVIL JURISDICTION 2014: No. 308
• Court: Supreme Court (Bermuda)

[2014] SC (Bda) 11 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2014: No. 308

Between:-

(1) A

(2) B

Plaintiffs

and

(1) Director of Child and Family Services

(2) Attorney General

Defendants

Mr Peter Sanderson, Wakefield Quin Limited, for the Plaintiffs

Ms Shakira Dill, Attorney General's Chambers, for the Defendants

RULING

(In Chambers)

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

(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 former normally makes them available to other members of the public.

(2) The facilities and services referred to in subsection (1) include, but are not limited to the following namely—

…..

the services of any business, profession or trade or local or other public authority.

12 ‘ Discrimination’ is defined at section 2 of the 1981 Act, which provides in material part:

(2) For the purposes of this Act a person shall be deemed to discriminate against another person—

(a) if he treats him less favourably than he treats or would treat other persons generally or refuses or deliberately omits to enter into any contract or arrangement with him on the like terms and the like circumstances as in the case of other persons generally or deliberately treats him differently to other persons because—

…..

(ii) of his sex or sexual orientation;

(iii) of his marital status; …

(b) if he applies to that other person a condition which he applies or would apply equally to other persons generally but—

(i) which is such that the proportion of persons of the same race, place of origin, colour, ethnic or national origins, sex, sexual orientation, marital status, disability, family status, religion, beliefs or political opinions as that other who can comply with it is considerably smaller than the proportion of persons not of that description who can do so; and

(ii) which he cannot show to be justifiable irrespective of the race, place of origin, colour, ethnic or national origins, sex, sexual orientation, marital status, disability, family status, religion, beliefs or political opinions of the person to whom it is applied; and

(ii) which operates to the detriment of that other person because he cannot comply with it.

13 Where direct discrimination is alleged, ie discrimination contrary to section 2(2)(a) of the 1981 Act, the court is required to engage in a factual inquiry as to whether discrimination on a prohibited ground has taken place. If it has, then that is an end of the matter: the discrimination was unlawful.

14 However, where indirect discrimination is alleged, ie discrimination contrary to section 2(2)(b) of the 1981 Act, the court is required to undertake a more complex inquiry. This includes consideration of whether the allegedly discriminatory condition was justifiable. If it was justifiable it will not be discriminatory.

15 Section 2(2) of the 1981 Act is to be contrasted with the prohibition of discrimination to be found in article 14 of the European Convention on Human Rights (‘the Convention’). Under the jurisprudence of the European Court of Human Rights (‘the ECHR’) the justifiability test applies to both indirect and direct discrimination. As the Grand Chamber ruled in STEC v United Kingdom (2006) 43 EHRR 47 at para 51:

A difference of treatment is … discriminatory if it has no objective and reasonable justification: in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.

16 ‘ Services’ are not defined within the 1981 Act. However in Marshall v Deputy Governor [2011] 1 LRC, PC, Lord Phillips, giving the judgment of the Board, accepted at para 15 that section 6 of the 1981 Act, which prohibits discrimination by employers, must be given an interpretation that is generous and purposive. By parity of reasoning the same approach would apply equally to the other provisions of the 1981 Act, including section 5.

17 In Applin v Race Relations Board [1975] AC 259, the House of Lords held that the provision by a couple of private individuals of foster care facilities to children in local authority care was a service within the meaning of section 2 of the Race Relations Act 1968 (‘the 1968 Act’): the section did not define the meaning of ‘services’ but gave a non-exhaustive list of examples. Lord Morris observed at 274 E that the range and sweep of the examples was very...