## Facts

- An opposite-sex couple who were not married sought to adopt under the Adoption and Children Act 2002.
- Domestic practice treated marriage as a prerequisite, automatically blocking their joint application.
- The applicants claimed the bar violated their right to respect for family life under Article 8 of the European Convention on Human Rights and amounted to discrimination based on marital status contrary to Article 14.
- The case proceeded through the Northern Ireland courts and reached the House of Lords.
- The central statutory context was the 2002 Act’s requirement that a child’s welfare be the court’s primary consideration.

## Issues

1. Does the exclusion of unmarried couples from joint adoption constitute discrimination contrary to Article 14 taken with Article 8?
2. If discriminatory, is the measure justified as necessary and proportionate to the legitimate aim of protecting children’s welfare?
3. How should the principle that the child’s welfare is the primary consideration under the 2002 Act be reconciled with the proportionality analysis required by the Human Rights Act 1998?

## Decision

- Marital status is a personal characteristic within Article 14; differential treatment requires objective and convincing justification.
- A blanket exclusion lacked evidential support and failed the proportionality test: it was neither necessary nor proportionate to the aim of safeguarding children.
- The appropriate judicial approach is a four-stage proportionality inquiry—legality, legitimate aim, necessity, and fair balance—while according great weight to the child’s welfare on the facts of each case.
- The rule that child welfare is the primary consideration is preserved but cannot rest on presumptions that married couples are inherently preferable; each adoption application must be assessed individually.
- Unmarried couples are entitled to consideration under the same substantive criteria as married couples.

## Legal Principles

- Article 8 protects the family life of prospective adopters and children; interference must pursue a legitimate aim and be proportionate.
- Article 14 forbids discrimination in the enjoyment of Convention rights; marital status is included.
- Generalised assumptions about family structure cannot justify restrictive measures; empirical evidence is required.
- The principle that the child’s welfare is the primary consideration remains central but forms part of the proportionality analysis under the Human Rights Act 1998.
- The four-stage proportionality test guides scrutiny of statutory schemes affecting Convention rights in adoption contexts.

## Conclusion

The House of Lords held that an automatic bar on joint adoption by unmarried couples is unjustified discrimination infringing Articles 8 and 14 ECHR. While a child’s welfare remains the primary consideration, courts must evaluate that welfare on the facts of each case, applying identical substantive standards to married and unmarried applicants.

Re G (Unmarried Couple) [2008] UKHL 38