Latest Judicial Development
Learn more about latest judicial development and recognition of LGBT+ rights in the Hong Kong courts, as well as landmark overseas judgments.
Thomas Lam (Associate)
A child (“J”) was being neglected and was exposed to moral dangers by her biological parents. The local authority placed J in adoption. A lesbian couple (“L” as the prospective adopter and “S” as her partner) have cohabited for 10 years. S has a daughter and a grandchild. L and S are professionals with employment. J was originally adopted by L and S. Under L and S’s care, J was well-settled and has thrived. The adoption order was opposed by the biological mother on the grounds that, under the adoption legislation, a single woman in a homosexual relationship could not apply to adopt a child and the granting of an order would be contrary to public policy.
The Family Division of the UK High Court faced two issues:
The Court found in favour of the adoptive parent (L) on both issues.
First, S15 of the Adoption Act 1976 does not prohibit a single person applying to adopt a child even if he or she is cohabiting in a homosexual relationship at the time. S15(1)(a) of the Act states, "an adoption order may be made on the application of one person where he has attained the age of 21 years and is not married”. Based on a plain, literal interpretation of the words, there is no reason why the words “one person” would exclude a single, homosexual woman who is cohabiting with another woman. If Parliament intended to exclude homosexual individuals from adopting, Parliament should have added the relevant clauses into the Act. The Adoption Act cannot be construed in a restricted and discriminatory manner to exclude homosexual adapters.
Secondly, there is no rule of public policy that an adoption order should never be made in favour of such a person. The court could entertain the application and should determine them on the basis that first consideration should be given to the need to safeguard and promote the child's welfare throughout childhood. It is not unknown that some adoption agencies place children in the care of homosexual carers. There is no basis that public policy prevents homosexual couples adopting. Unless therefore public policy should discriminate upon the basis of sexual orientation, such a basis for prohibiting application by one of a cohabiting couple would strike out the application if the couple were man and woman, just as much as if they shared the same gender.
This is an encouraging judgment that allows homosexual individuals or couples to start a family. Whilst there is a clear anti-discrimination undertone in the judgment, one would expect the court to be more forefront about discrimination and equality after the passing of the Human Rights Act 1998 in the UK.