Supreme Court of Bermuda says denying same-sex couples the opportunity to jointly adopt a child is discrimination and that the ECtHR is wrong to not recognise this

The Supreme Court of Bermuda, in A & B v Director of Child and Family Services & Attorney General, has found in favour of a same-sex couple who complained that their inability to jointly adopt a child, who they have been raising together, constituted unlawful discrimination.

Under Bermuda law, the couple could not jointly adopt the child because joint adoption was available only to married couples. The relevant legislation is section 28(1) of the Adoption Act 2006 which states:

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.

Same-sex couples cannot marry in Bermuda, so the couple could not make a joint application to adopt their child.

Hellman J held that denying the couple the opportunity to make a joint application amounted to direct discrimination against unmarried couples because of their marital status, and indirect discrimination against same-sex couples because of their sexual orientation.

Relevance to the ECHR

In considering whether denying same-sex couples the opportunity to jointly adopt a child was justifiable, Hellman J assessed the jurisprudence of the European Court of Human Rights (ECtHR) and, in particular, its judgment in Gas and Dubois v France. 

In Gas and Dubois the ECtHR held that denying a person in a same-sex relationship the opportunity to adopt their partner’s biological child, because such ‘step parent’ adoption was only available to married couples in France (and, at that point, same-sex couples in France could not marry), did not amount to discrimination under the European Convention on Human Rights (ECHR). 

In respect of the ECtHR's judgment in Gas and Dubois, Hellman J stated:

The [ECtHR] noted […] that for an issue to arise under art 14 [of the ECHR – prohibition on discrimination] there must be a difference in the treatment of persons in “relevantly similar situations”. They held […] that married couples and unmarried couples were not in a relevantly similar situation as marriage conferred a “special status” on those who enter it which gives rise to social, personal and legal consequences. I do not understand how that is supposed to provide a rational basis for prohibiting same-sex couples from adopting, and the majority did not find it necessary to explain the point any further. As Paul Johnson stated in a trenchant criticism of the decision in The Modern Law Review, “the Court’s approach to the question of ‘analogous situation’ in this case will strike many people as perverse or obtuse” (§34-35).

In essence, the Supreme Court of Bermuda has criticised the view of the ECtHR, which is: if a Contracting State provides married couples with rights and benefits that are denied to unmarried couples, and also prevents same-sex couples from marrying, that this does not amount to discrimination (either direct or indirect) because unmarried same-sex couples are not comparable with opposite-sex married couples. The Supreme Court of Bermuda says that approach is not 'rational'. 

The outcome of the judgment

As a result of the judgment, a joint application to adopt a child may now be made by an unmarried couple, whether same-sex or different-sex.

This judgment is very significant, not only for same-sex couples in Bermuda but also because it goes some way to rebut the approach adopted by the ECtHR when considering complaints about discrimination created by laws that reserve rights and benefits for opposite-sex married couples.

Bermuda, as a British Overseas Territory, is within the ECHR system and the voice of its Supreme Court is, in this respect, very important.