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Hand and Anor v George [2017] EWHC 533 (Ch) (Rose J, 17 March 2017) – read judgment
The Adoption of Children Act 1926 s.5(2) had the effect that adopted children were not treated as “children” for the purposes of testamentary dispositions of property. The continuing application of this provision was a breach of the rights guaranteed by Article 14 in combination with Article 8 of the Convention. Therefore, the contemporary version of that provision, Adoption Act 1976 Sch.2 para.6, had to be read down so as to uphold the right not to be discriminated against.
Background Facts and Law
Henry Hand died in 1947. He was survived by his three children, Gordon Hand, Kenneth Hand and Joan George. In his will dated 6 May 1946, Henry Hand left the residue of his estate to his three children in equal shares for life with the remainder in each case to their children in equal shares. The question at the centre of this claim was whether adopted children count as “children” for the purposes of this will. Under Section 5(2) of the Adoption of Children Act 1926, which was in force at the relevant time, adopted children were not included as “children” for the purposes of a testamentary disposition of property.
The claimants, the adopted children of Kenneth Hand, accepted that under the domestic law in force, they were not included and their father’s share of the Henry Hand trust would go to the their cousins the defendants. However, the claimants maintained that they can rely on their rights under Article 14 of the European Convention of Human Rights in conjunction with Article 8 to override the discriminatory effect of that domestic law so that they are treated as equals with the birth grand-children of Henry Hand. The defendants argued that the ECHR could not be applied to interpret an instrument that was drawn up at a time before it existed. Continue reading →
The recently released statistics from the Department for Education showing an increase of 15% in the adoption of looked after children in the last year further highlights the government’s preferred strategy for ensuring the welfare of children in care.
In my recent post, I considered the main thrust of the decision of the Court of Appeal in Re B-S which concerned the rigour which was expected of evidence, hearings and Judgments before a Placement Order was made.
However, the Court also dealt with the issue which had concerned Lord Justice McFarlane when he gave permission to appeal namely, where a Court has already made an order that a child may be placed for adoption and that has happened and the prospective adopter has applied for an Adoption Order, in what circumstances can a parent seek to stop it going ahead?
X AND OTHERS v. AUSTRIA – 19010/07 – HEJUD [2013] ECHR 148 (19 February 2013) – Read judgment
The Grand Chamber of the European Court of Human Rights (by 10 votes to 7) has found that Austrian law discriminated against a same sex couple as it prevented them from adopting jointly the biological child of one of them (what we would call a second-parent adoption). The Court found a violation of Article 14 (anti-discrimination) in conjunction with Article 8 (respect for private and family life) protection because this was less favourable treatment than if they were an unmarried different sex couple who would have been permitted to adopt together.
The narrowness of the majority might have had something to do with the fact that the father of the Child had been a party to the case in the domestic courts and opposed the adoption (although the fact that the child of the lesbian couple in Gas and Dubois v France had been conceived through anonymous donor insemination had not helped that case). In the event, the Grand Chamber decision was based on the fact that the Austrian Supreme Court had referred to the “legal impossibility” of the proposed same sex adoption in this case.
RCW v A Local Authority [2013] EWHC 235 (Fam) (12 February 2013) – Read judgment
This case, described by Cobb J as an “unusual and troubling” case, concerns a 1 year old girl “SB” and a woman “RCW”. SB was born prematurely, at 27 weeks, weighing just 1 kg; almost immediately she was abandoned by her natural mother.
She spent many months in the Special Care Baby Unit. In October 2012 SB was matched with RCW, a single woman who worked as a project manager for the NHS. In January 2013 things took an “unexpected and wretched turn” in the form of RCW’s diagnosis with a brain tumour. Hurriedly, RCW made arrangements with a cohort of friends to care for SB while RCW underwent surgery to remove the tumour which was situated near the optic nerve. The operation, whilst successful in removing the tumour, left RCW without sight; it is not known whether the lack of sight is temporary or will be permanent.
Catholic Care (Diocese of Leeds) v Charity Commission (on appeal to the Upper Tribunal) CA/2010/0007 – read judgment
A private adoption agency could not justify its exclusion of same-sex prospective parents by arguing that this policy would keep open a source of funding that would otherwise dry up and reduce the number of adoption placements.
This was an appeal by the Catholic adoption services agency against the First Tribunal’s confirmation of the decision by the Charity Commission that it was not permitted to amend its constitution so as to permit it to continue its previous practice to refuse to offer its adoption services to same sex couples. Here is our post on the FTT’s ruling, which sets out the facts and arguments in the case. To recap briefly, the charity argued that the adoption of its proposed objects was justified under the general prohibition on discrimination under Article 14 ECHR (and its statutory analogy, Section 193 of the Equality Act). The legitimate aim it pursued was that of providing suitable adoptive parents for a significant number of children who would otherwise go unprovided for. The Charity maintained that unless it were permitted to discriminate as proposed, it would no longer be able to raise the voluntary income from its supporters on which it relied to run the adoption service, and it would therefore have to close its adoption service permanently on financial grounds. The FTT rejected this submission, holding that though the charity’s aim of increasing adoption placements was a legitimate one, the evidence before it did not show that the increased funding of the agency’s adoption work under the auspices of the Roman Catholic church would “inevitably” lead to the prospect of an increased number of adoptions. Continue reading →
Another week and another judgment about adoption. This time it is a decision of the Supreme Court about the Scottish family law system. Whereas last week’s post was about a case where children should have been placed into adoption, but were not, this case concerned a mother who opposed an adoption order being made for her child. The mother challenged the legislation which allowed the court to make an adoption order without her consent, arguing that it was incompatible with her Article 8 rights to private and family life. However, the Supreme Court ruled that there was no breach of the Convention.
The appellant mother argued that s.31 of the Adoption and Children (Scotland) Act 2007 was incompatible with the Convention. This would mean it was unlawful, as statutory provisions incompatible with the ECHR are not within the legislative competence of the Scottish Parliament under s.29(2)(d) of the Scotland Act 1998. (This is different to the UK Parliament in Westminster, which is able to legislate contrary to the ECHR, and the most the courts can do under the Human Rights Act is make a declaration of incompatibility.)
The Charity Commission has rejected a bid by a Catholic organisation to amend its charitable objects in order to restrict its adoption services to heterosexuals. The case highlights the significant protections which have been put in place by recent equality law, and the policing role which the Charity Commission is required to play from a human rights perspective.
The Commission was ordered by the High Court in March to look at its initial decision again in light of Article 14 of the European Convention on Human Rights. The law behind the case is quite convoluted, but is worth looking at again as it is likely to have significant implications for gay couples looking to adopt as well as for religious charities in general.
The Equality Act 2010 received royal assent on 8 April 2010. The Act aims to consolidate what until now has been a messy jigsaw of 116 pieces of legislation, and further harmonise UK law with the four key EU Equal Treatment Directives.
The Bill passed despite the unusual opposition from the Pope, who complained in February that it would run contrary to “natural law”. His comments were most likely directed at the effect of the new legislation on Catholic adoption agencies, making it more difficult for them to turn down gay couples. We previously posted on this topic in relation to the Catholic Care case, which resulted in a victory for a catholic adoption agency.
Making the law easier to understand and implement by simplifying 116 pieces of equality legislation into a single Act for individuals, public authorities and private organisations.
Giving people the right not to be treated less favourably by public authorities because of their age, religion or belief, sexual orientation, or transgender status; as well as their disability, gender, or race which were already covered.
Extending anti-age discrimination rules to include goods, facilities and services, thereby stopping people being unfairly refused insurance or medical treatments based on what age they are, for example.
The key sections of the Act will begin to come into force in October 2010 and will continue to do so until 2012.
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Hand and Anor v George [2017] EWHC 533 (Ch) (Rose J, 17 March 2017) – read judgment
The 
X AND OTHERS v. AUSTRIA – 19010/07 – HEJUD [2013] ECHR 148 (19 February 2013) – 
RCW v A Local Authority [2013] EWHC 235 (Fam) (12 February 2013) – 
ANS v ML [2012] UKSC 30 – read 
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