Unmarried and same-sex couples can apply to jointly adopt children, according to a recent judgment in the Supreme Court.

Under the Adoption Act 2006, unmarried couples have been unable to jointly adopt children. Bermuda does not recognise same-sex marriage, so the Act also indirectly banned same-sex couples from joint adoption.

But in a judgment dated February 3, Puisne Judge Stephen Hellman ruled that section of the Act represented unlawful discrimination.

The ruling came after an unnamed same-sex couple wanted to adopt a nine-month-old child they had been raising together.

They were told by the Department of Child and Family Services (DCFS) that, as an unmarried couple, they would have to make separate applications, which would be processed and considered separately. The couple argued that requiring a separate process was discriminatory and sought a declaration from the Court that the Adoption Act should be read in a manner which is consistent with the Human Rights Act, which forbids discrimination on the grounds of marital status and sexual orientation.

The department argued that having the couple processed separately would not constitute less favourable treatment. In the judgment, Mr Justice Hellman found that “marital status” included both the state of being married and unmarried.

“If one is a status so, too, is the other,” he stated. “Permitting a joint application by a married couple but not an unmarried couple is discriminatory in that it involves treating the unmarried couple less favourably than the married couple by providing adoption services to the one couple but not the other.

“For the reasons given by the plaintiffs, I therefore reject the defendants’ submission that processing the plaintiffs’ applications separately, with the possibility of a separate adoption order in the case of each plaintiff, would not constitute less favourable treatment.

“It would, however, constitute a refusal to provide them with adoption services of a like quality, in the like manner and on the like terms on which the DCFS normally makes them available to other members of the public, namely applicants who are married couples.

“It is in any case doubtful whether the Act would permit the court to entertain two applications for the adoption of the same child.

“The argument that it would involve a strained construction of the statutory language to which a court would likely only have recourse if it were necessary to avoid applying that section in an unlawfully discriminatory way.

“As it would not achieve that end, there is no good reason to construe the section in this way.”

He ruled that the statutory ban on the couple to adopt was unlawful, noting that the same position had already been taken by courts in Britain, Canada, Gibraltar, and South Africa.

“An adoption process in which an adoption order was only possible in favour of one of the plaintiffs would be discriminatory in that it would reduce the other plaintiff to second-class status and deprive the child of the benefit of two legal parents,” he wrote.

“An adoption process in which unmarried different-sex couples were eligible to adopt but unmarried same-sex couples were not (or vice versa) would be directly discriminatory on the grounds of sexual orientation.”

Mr Justice Hellman found that Section 28 of the Adoption Act authorises or requires direct discrimination against unmarried couples owing to their marital status, and indirect discrimination against same-sex couples on the grounds of sexual orientation.

“To remedy this situation, and again pursuant to section 29 of the 1981 Act, I declare the word ‘married’ in subsections 28(1) and 28(3) of the 2006 Act to be inoperative,” he wrote.

“Accordingly, a joint application to adopt a child may be made by an unmarried couple, whether same-sex or different-sex, provided that they have been living together for a continuous period of not less than one year immediately before their application.

“To address a concern raised by the defendants, I consider that the one-year requirement renders the meaning of a ‘couple’ sufficiently certain to be workable for the purposes of this section.

“It follows that the Plaintiffs are entitled to make a joint application for adoption. I therefore direct that the DCFS should treat their respective applications as a joint application and proceed accordingly.”

Mr Justice Hellman said that while it was not for him to comment on the merits of the couple’s application, it was evident from the material before him that they took their responsibilities as caregivers very seriously.