In Re P: adoption, discrimination and the best interests of the child [2010] CFLQ 115

This commentary examines the House of Lords' decision in Re P (Adoption: Unmarried Couples) concerning the exclusion of an unmarried couple to adopt under Article 9 of the Adoption (Northern Ireland) Order 1987. It considers the House of Lords' conclusion that the exclusion amounted to discrimination on the ground of marital status contrary to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR), read together with Article 14. Relevant case law of the European Court of Human Rights is considered, and the role played by the welfare principle in adoption is analysed. The piece then outlines an alternative line of reasoning - based on the positive obligation to respect family life under Article 8 - on which the case might have been decided.