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Tuesday, 05 March 2013 12:51

In the matter of the Adoption Act (County Court) - Jul 2010

This was an application by a man who is in a homosexual relationship for a grant of adoption in respect of a child who had been in his and his partner's care as a foster child for the past four years. The Adoption Act 1984 does not permit adoption by a same-sex couple, but does permit adoption by one person in limited circumstances, so the Court was concerned that it may not have jurisdiction to grant adoption to one person where it is aware that the person is in a same-sex relationship.

The Commission made a submission on the interaction between the Charter and the Adoption Act. The Commission had a particular focus on the rights of children to decisions in their best interests. The Commission argued that Parliament's purpose in providing an avenue for adoption by one person who may be in a couple (whether same-sex or heterosexual) was to protect and promote the best interests of the child in the particular circumstances. Section 11(3) of the Adoption Act, when construed compatibly with the "best interests" of the child, does not preclude one person in a same-sex couple from making an application for an adoption order.

The Court found that it did have jurisdiction to grant an adoption order in favour of one person, notwithstanding that the person was in a same-sex relationship. Having regard to all of the prescribed factors, and the paramount consideration of what is in the best interests of the child, the court decided to grant the adoption order in the applicant's favour. It was argued, and accepted by the court, that the Charter imposes a positive obligation to protect the best interests of the child and to interpret the Adoption Act in light of the child's rights. Using the Charter as a tool of statutory interpretation, and having regard to international jurisprudence on this issue, the court ultimately found that it did have jurisdiction to grant an adoption order in favour of one person who is in a same-sex relationship, and did so.

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