The High Court recently ruled that a Christian foster service must allow gay parents to sign up as carers. Aileen McColgan QC analyses the judgment.
The case of R (Cornerstone (North East) Fostering & Adoption Services v Ofsted  EWHC 1679 (Admin) (Julian B Knowles J) was brought by a charitable adoption and fostering agency which sought judicial review of a report by Ofsted which found that its policy of accepting only heterosexual evangelical Christians as the potential carers of fostered children breached the Equality Act 2010 and the Human Rights Act 1998, and required that Cornerstone alter the policy. Cornerstone, which had contractual relationships with a number of local authorities, challenged Ofsted’s findings that its carer recruitment policy involved unlawful discrimination because of sexual orientation under the EqA and the HRA, and unlawful discrimination. on grounds of religion or belief contrary to the HRA.
Cornerstone’s Memorandum and Articles of Association provided that its objects were “to provide a high quality adoption and fostering child care service according to Christian principles to alleviate the needs of children and young people who are, or may be, temporarily or permanently separate from their families and to promote the relief and care of children without families or parents able to care for them by the provision of substitute families able to meet their needs with the aim of improving the conditions of life and future of such children and young people.” They also provided that the charity’s policy was “to restrict employment by the Charity and acceptance of any application to foster or adopt children through the charity to evangelical Christians” who had signed a Statement of Beliefs and a Code of Practice issued by the trustees, and whose “practice is consistent with the practice of the Statement of Beliefs set out in the Schedule hereto and traditional Biblical Christian standards of behaviour as set out by the trustees in their Code of Practice. The Statement of Beliefs included conventional Christian beliefs. The Code of Practice provided that carers “conduct themselves in a manner that will give proper expression to faith in Jesus Christ as Lord”; including through prayer, Bible reading and church attendance; honesty and sobriety; and “abstain[ing] from all sexual sins including immodesty, the viewing of pornography, fornication, adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex”.
Ofsted’s view was that Cornerstone’s policy on carers breached the EqA and Articles 8 and 14 HRA both as regards religion/ belief and as regards sexual orientation. Cornerstone’s position was that it did not discriminate because of sexual orientation, rather that only “practising Christians” could be carers and that this was consistent with sexual activity only within Christian marriage. Its practice was not to recruit single people as carers.
In 2011 the Charity Commission had accepted Cornerstone’s assertion that it did not discriminate because of sexual orientation but on the basis of standards of sexual behaviour, and that its discrimination because of religion or belief was justified under Sch 23 para 2 of the EA 2010. That provision permits non-commercial organisations whose purpose is to practise, advance or teach the practice or principles of a religion or belief to discriminate as regards religion or belief in their provision of benefits. The provision applies equally to sexual orientation except that para 2(1) of Sch 23 provides that para 2 does not “permit anything which is prohibited by section 29, so far as relating to sexual orientation, if it is done (a) on behalf of a public authority, and (b) under the terms of a contract between the organisation and the public authority”.
Before the High Court Ofsted argued that Cornerstone discriminated on grounds of religion or belief and of sexual orientation, and that Sch 23 did not provide a defence to the latter. Julian B Knowles J agreed. He declared that the organisation’s requirement that applicants “recognise that God’s gift of sexual intercourse is to be enjoyed exclusively within Christian marriage” and “abstain from all sexual sins including … homosexual behaviour …”, “clearly, directly, and unambiguously discriminates against non-heterosexuals”. If he was wrong, and the discrimination was indirect rather than direct, it was disproportionate to the articulated aims of increasing the pool of evangelical Christian foster carers; affording critical support to carers; allowing those within the evangelical Christian community to serve by promoting stable and durable placements; manifesting the beliefs of evangelical Christianity in the practice of Christian charity and the support of Christian family life to the benefit of the carers, the children cared for, Cornerstone and society as a whole; and increasing the number of foster placements available against what was alleged to be an overall national shortage of foster carers for the number of placements required for children. There was, the judge concluded, no evidence that there was any shortage of evangelical Christian carers or that recruiting such carers would respond to any difficulties in matching children and he “fail[ed] to see how excluding a category of evangelical Christians (gay men and lesbians) from being foster carers achieves the aim which Cornerstone says it has of increasing the number of evangelical Christian carers”. He also “fail[ed] to see how a discriminatory policy positively impacts on Cornerstone’s aim of affording critical support to carers’ or “aids or assists in allowing those within the evangelical Christian community to serve by promoting stable and durable placements, unless it be said that gay and lesbian evangelical Christians cannot provide such placements, a position which, as I have said, I flatly reject”. The judge “fully accept[ed] that Cornerstone is founded upon what it perceives to be evangelical Christian beliefs” but “its policy on ‘homosexual behaviour’ is driven, first and foremost, by its belief such conduct is simply not compatible with Christianity, and that it is sinful… Cornerstone has failed to show by convincing evidence that its policy benefits children and young people in a way it would not if the policy did not discriminate. But conduct which is discriminatory on the grounds of sexual orientation that is pursued because of religious belief is not thereby justified” (citing Baroness Hale in Preddy v Hall  UKSC 73,  1 All ER 919, -).
The judge also rejected Cornerstone’s argument that (1) it did not provide services or perform a public function for the purposes of s29 EqA and (2) that, if it did, “the conduct which is allegedly prohibited under section 29 is not made under the terms of a contract between it and a public authority.” He concluded that the phrase “on behalf of” “does not, as Cornerstone suggests, require a relationship of agency between a local authority and an [Independent Fostering Agency but]… is better understood in this context as one of delegator/delegate (Cornerstone undertakes a task that the local authority would otherwise be required to undertake)”.
Cornerstone also sought to rely on s193 EqA which provides an exception for discrimination in the provision of benefits “in pursuance of a charitable instrument” which is “a proportionate means of achieving a legitimate aim, or … for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic”. That argument failed because of the judge’s conclusions on proportionality. The judge went on to find that Cornerstone was a hybrid public authority for the purposes of the HRA and that that its policy breached Articles 8 and 14 ECHR so far as it discriminated on grounds of sexual orientation, though it rejected Ofsted’s argument that it also breached Articles 8 and 14 ECHR by discriminating on grounds of religion or belief. Sch 23 para 2 “represents Parliament’s considered response to the question of whether, and if so how far, religious organisations should be allowed to discriminate on grounds of religion … in enacting  of Sch 23 in the terms that it did, Parliament was deciding how the balance was to struck between, on the one hand, the freedoms properly to be accorded to religious and faith based organisations, and on the other, the rights of those who might be discriminated against. It seems to me it would be fundamentally incompatible with Parliament’s intention to hold under Article 14 that a religiously based fostering agency cannot restrict its services to applicants holding the same faith, when Parliament in  of Sch 23 has clearly and unambiguously permitted it to do so.”