Everest conqueror challenges illegal adoption law

The same law which allows singles to adopt at any time but stipulates that married couples cannot adopt unless they have lived together for more than three years,  is being challenged in a judicial protest presented by Marco and Joanna Cremona.

The Constitutional Court has already declared that the law violates fundamental human rights in a judgement involving another couple, but since then parliament has failed to amend the law despite being asked to do so by the same court.

In the light of the previous sentence Marco and Joanna Cremona asked the Ministry responsible to commence procedures to adopt a child, despite not having been married for more than three years. 

They were allowed to do so in January, when they had successfully completed the first phase of the process. It was only in July that they were informed that they could not initiate the second phase of the adoption procedure which involves home visits.

At this stage they were informed by Agenzija Appogg that since the law had not yet been changed by parliament they could not continue the adoption process.

But the couple are now contesting the Agency’s decision to invoke a law which has already been deemed unconstitutional.

“It is unconceivable that a law already declared to violate human rights is invoked by a government agency as if nothing has happened and we continue to suffer simply because the authorities are taking a long time to change a law to make it conform to a sentence issued by the constitutional court,” the couple argue in their judicial protest.

The judicial protest, signed by lawyers Dr Edward Zammit Lewis and Dr Michael Camilleri, was presented against the Prime Minister, the Department for Standards in Social Protection, the Ministry for the Family and Social Solidarity and Agenzija Appogg.

In April 2009 the Constitutional Court had upheld a constitutional judgment which confirmed that a Ruth Debono Sultana and Silvio Devono who wished to adopt a child were being discriminated against on the grounds that they were married.

Although the couple wished to adopt a child, they were not allowed to do so, for the law prevailing at the time stipulated that a married couple could only adopt a child if they had been married for at least five years. The law was changed earlier last year to enable married couples to adopt a child after three years of marriage.

The first court had already upheld the Debonos' claim that the law was discriminatory against married couples.

The Civil Code stipulated that an adoption could only take place by court order. A husband and wife could only adopt if they had been married for at least three years. But a cohabiting and unmarried couple could adopt without the necessity of being married for three years. In this latter case either the man or the woman could adopt.

There was therefore a difference at law between the treatment meted out to a married couple and to a cohabiting couple. The married couple had to wait three years in order to adopt while a cohabiting couple did not have to wait for one of them to apply to adopt.

This, said the court, was discriminatory treatment in violation of the European Convention of Human Rights for it was not justified, objective or rational.

The Department appealed from this judgment to the Constitutional Court which declared that it agreed with the first court that the law discriminated against married couples as it imposed a time limit upon them after which they could adopt.

The court therefore confirmed the first court's judgment and ordered the law amended so as to remove the requirement that a married couple live together for three years before adopting