Thursday, 18 March 2010

High Court rules in favour of adoption agency

Updated

The Chancery Division of the High Court has published its decision in the case of Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Ano[the]r.

You can read the ruling in full here, as web pages, or here as an .rtf file.

Earlier documents in the case (mentioned in the above) can be found here.

A press release from Catholic Care can be found here, and one from Stonewall can be found here.

There are newspaper reports:

The Times High Court reverses ban on Catholic Care’s anti-gay adoption policy by Ruth Gledhill and Rosemary Bennett and see also Catholics win latest stage in gay adoption battle on Ruth’s blog.

Guardian Riazat Butt Catholic adoption agency can turn away gay couples

Telegraph Matthew Moore Catholic adoption agency wins gay rights exemption ruling

Press Association Adoption society wins gay ruling

Reuters Catholic charity wins gay adoption ruling

Independent Sarah Cassidy Catholic group granted gay adoption exemption

Updates

Some of the press reports give an erroneous impression of what has happened so far. This report by Joshua Rozenberg is more reliable: While Catholics Care, Children Suffer, and the Christian Institute is remarkably muted in tone in this report: Glimmer of hope for RC adoption agency.

Posted by Simon Sarmiento on Thursday, 18 March 2010 at 8:34am GMT | TrackBack
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Categorised as: equality legislation
Comments

The press reports seem to me to be quite misleading.

Briggs J has not held that Catholic Care is entitled to discriminate.

The argument in this case was over a Charity Commission ruling, upheld by the Charity Tribunal, that it was utterly impossible for Catholic Care to avail itself of the benefit of a regulation which expressly permits discrimination by charities in certain circumstances. The Commission and the Tribunal had ruled (on different grounds) that it was legally impossible to rely on this regulation to do what Catholic Care wanted to do.

That is the position that the Judge has rejected on what seem to be very convincing grounds. He has in effect held that a regulation which expressly contemplates that charities might sometimes be allowed to discriminate means what it says.

It follows that it might be possible for Catholic Care to discriminate, but only if they could show that the discrimination was justifiable by strong public-interest grounds. He thought that Catholic Care might be able to establish such grounds if they could show that unless they were permitted to discriminate, children who really need a home will not be adopted at all. On the other hand he also said that he could see that there were potentially weighty objections to this argument. He has left it to the Charity Commission, in the first instance, to decide whether discrimination should be permitted in this case -- which will turn on whether the reasons put forward by Catholic Care turn out to be sufficiently strong.

So whether Catholic Care will be allowed to discriminate depends on what the Charity Commission decides (and whether its decision is appealed, and if so, whether it is upheld).

One final point. On any view it is clear (1) that the Judge did not think that the religious scruples of Catholic Care formed a potential justification (indeed, that was not argued) and (2) that Catholic Care's argument was very specifically tied to the particular facts of the case, especially their role in placing hard-to-place children who would otherwise not be adopted at all. It was that which led the Judge to think there might be an argument that the needs of children might (I stress might) be strong enough to justify discrimination in this particular case.

Posted by: Paul Stanley on Thursday, 18 March 2010 at 10:06am GMT

Firstly I'm not a lawyer but am very grateful for the link so I can take a look for myself.

I usually say on such occasions "It's well worth reading if you have the time". I must confess I found the ruling very technical and at times a little tortuous - especially not having much awareness of charity law. However the nub of the reasoning can easily be got from paras 107-111 if you can't bear to wade through it.

It is true that it seems to hinge on an analysis of 'hard to place' children as opposed to any general faith based exemption.

Quite apart from the case at hand I was surprised by the view that the 2007 regulations gave effect to Convention rights and the view of article 14 as being a free standing protection from discrimination. (This is interesting because the whole reasoning around the UK signing up to Protocol 12 is because the prevailing view had been that art 14 wasn't such a free standing protection against discrimination whereas the Protocol was designed to be such - the UK has not signed up to it though it is in force with other states http://en.wikipedia.org/wiki/Protocol_No._12_to_the_European_Convention_on_Human_Rights).

Although this view was I think espoused by Lord Lester and possibly the Joint Committee on Human Rights I don't know of it being stated in a UK or other Court ruling.

Posted by: Craig Nelson on Thursday, 18 March 2010 at 11:24am GMT

Craig, I agree that the judgment is hard-going, even for a lawyer. That's one reason perhaps why some of the reporting -- and nearly all the headlines -- miss the mark.

But I think you are wrong in reading Briggs J as treating Art 14 as a "free standing protection from discrimination". That would indeed be ... unorthodox. But in fact he says the reverse (para 55): "[Art 14] operates not by way of the conferral of a freestanding right not to be discriminated against, but rather by way of complementing the other substantive provisions of the Convention and the Protocols. It has no independent existence, since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by those other provisions"

That is the orthodox (and correct!) view. In this case, Art 14 would have been engaged via Art 8, since adoption decisions implicate the right to a family life.

Briggs J's reasoning that the 2007 regulations "give effect to" (perhaps better "must be construed so as to be compatible with") the Convention is simply a consequence of the way the Human Rights Act 1998 operates.

Posted by: Paul Stanley on Thursday, 18 March 2010 at 2:28pm GMT

As one might expect Paul Stanley has absolutely nailed this!

There are two things I want to say:

1. RC adoption societies have varied in their practice but many have worked with gay adopters, even couples - provided only one was the registered adopter (as was always the case for all unmarried couples before Dec 2005). They have placed with unmarried couples - even though the law continues to allow them to discriminate there - and they have placed with couples who are divorced and remarried. Of course they have had many successful placements with single people.
Yet they have rather surreptitiously draped themselves with the "Mummy and Daddy - hairnet and comfy slippers" image - saying "We think a child deserves a mother and father" and whipping up support by creating a false image of both what they have been doing and what is in the best interest of all children.

2. This is a massive piece of moral blackmail. They are in fact saying:
We are the last chance saloon for many of these almost impossible to place youngsters.
If you don't allow us to discriminate against partnered homosexuals then we are going to stop finding loving homes for ten children a year and leave them in the hopeless position they in. We care less for the children than we do for our right to discriminate!
I think this is absolutely outrageous.

They say they want to act according to the conscience .......... Bah!! Humbug!!!

Posted by: Martin Reynolds on Thursday, 18 March 2010 at 4:52pm GMT

" Other Catholic agencies have already given up adoption or cut their ties with the Church."
- Ruth Gledhill, Times on-line -

Well, that's a start! For a Catholic agency to have decided to cut it's ties with the Church shows that there is still a margin for individual consciences on this issue among the R.C. Care agencies. Let's hope they don't get excommunicated for observing Christian charity on this issue.

Posted by: Father Ron Smith on Friday, 19 March 2010 at 1:49am GMT

What Paul said

Also, the Equality Bill is likely to reverse this situation in any case, and also there is the question of local authorities duty to enforce equality under that Bill. This will prevent them working with agencies who discriminate and in the UK, there is no 'private' adoption

The vast majority of the agencies have agreed to change in any case and gather that the staff were generally happy to do so.

Posted by: Merseymike on Friday, 19 March 2010 at 4:05pm GMT

I agree with Merseymike about the local authorities who are, as public bodies, under more stringent obligations regarding the promotion of equality than any private body, such as a church-related adoption agency.

But I am puzzled at his suggestion that the Equality Bill will, if passed, "reverse this situation", as I am not aware that it makes any substantive change to the current formulation of Regulation 18.

Posted by: Simon Sarmiento on Friday, 19 March 2010 at 5:22pm GMT

Joshua is, of course, Melanie Phillips's husband (and a lawyer as well as a journalist), which adds a touch of picquancy to his subtle interpretation of the ruling, nuance not being Mel's strong suit these days, unlike when she was at the Guardian....

Posted by: Stephen Bates on Friday, 19 March 2010 at 6:24pm GMT

The Welsh Catholic bishops had a pastoral read in Church telling us why the Church was cutting the links with its adoption agencies, and hw children needed a Mother and Father. Then they closed it , by asking us to still support the secularised agencies!

Posted by: Robert Ian williams on Monday, 22 March 2010 at 6:13am GMT

Simon - sorry, should have clarified. The equality duty will make it impossible for local authorities to work with agencies who overtly discriminate, and as there is no such thing as a private adoption...

Posted by: Merseymike on Tuesday, 23 March 2010 at 11:41pm GMT
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