In June we reported that Catholic Care had been refused leave to appeal by the Charity Tribunal, but noted that the agency’s solicitor had said:
the charity could appeal to the Upper Tribunal for a review of the charity tribunal’s decision not to allow the appeal. He said trustees had not decided whether to do so.
And it is now reported that they have done this. See this from Third Sector Catholic Care given leave to appeal again.
…After a further charity tribunal ruling in June that it would not accept an appeal against the decision, Catholic Care has appealed to the Upper Tribunal, which has the same status as the High Court.
The Upper Tribunal confirmed this week that it would allow the appeal.
Benjamin James, a solicitor at the law firm Bircham Dyson Bell, acting on behalf of Catholic Care, told Third Sector the charity would argue in its appeal that the charity tribunal had failed to properly perform the balancing act required to determine whether discrimination was reasonable given that, according to the charity, the alternative was closing its adoption service.
James said the charity would attempt to overturn the charity tribunal’s ruling that it had not provided sufficient evidence to show that losing funds from the Catholic Church would force it to close the service. The tribunal had suggested the charity could raise money from other sources…
The historical background to this case can be found in this excellent article in Caritas from last October, by Michael King and Fraser Simpson Equality v religious belief. They then go on to comment:
The solution followed by three agencies, covering seven dioceses in England & Wales has been to embrace the regulations, both in technical detail and in spirit, by pursuing an open policy with regard to potential adopters.
The result has been that non-discriminatory agencies are simply carrying on doing what they have done before, having regard for the best interests of the child.
Some commentators agree that this has been achieved without undermining or jeopardising the Catholic nature of the adoption agency involved. Although some bishops and clergy may not feel able to sit on the boards of such agencies, it is argued that this does not necessarily alter their Catholic heritage, charism and ethos. It must be remembered that, at law, faith-based adoption agencies are not usually branches of a particular religious body, but are generally autonomous charities in their own right, and so the question of the interests of those whom they are set up to serve has to be uppermost in the minds of the trustees, whatever their decision may be.
Some church leaders have suggested that, going forwards, funding of agencies might be withdrawn and leases over diocesan properties might not be renewed. Agencies that do follow the open route must be aware of these risks and try to mitigate the potential harm by positive dialogue with dioceses and their people. They might perhaps draw comfort from the fact that there are many Catholic charities in existence, dealing with education, the care of disabled or elderly people or rehabilitation of sufferers from addiction, which have no clerical trustees but are nevertheless accepted as carrying out the wider mission of the Church.
All of the Catholic adoption agencies have deservedly high reputations for the work which they have pursued in the best interests of the children whom they were established to serve and one hopes that in one way or another this work will continue.
However, it is in our respectful view possible for those agencies, which after careful thought have adopted an open policy, to comply with the regulations and yet to think of themselves as pursuing the mission of the Church towards children in need of adoptive parents.
The most recent report from Caritas also notes this:
Sarah Clune of law firm Stone King told Caritas: “An interesting point to note is that in its judgment of 26 April 2011, the Tribunal referred to the Public Sector Equality Duty (s.149 Equality Act 2010, which has since come into force), which imposes a duty on public bodies to pay due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity.
Whilst not relevant to the Tribunal’s decision, the Tribunal stated that even if the charity were permitted to discriminate in reliance upon s.139 of the Equality Act 2010, the duty is likely to impact, in due course, on the willingness of local authorities to work with a charity which discriminated on the grounds of sexual orientation in respect of adoption placements.”