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Fostering agencies and religious beliefs

The Court of Appeal has recently ruled on the legality of a fostering agency’s requirement that potential carers must be Christians. Natasha Isaac examines the case.

In R (Cornerstone) v Ofsted [2021] EWCA Civ 1390, a claim for judicial review, the issue was whether it was lawful for the claimant independent fostering agency (Cornerstone) only to accept heterosexual evangelical Christians as potential carers under the Equality Act 2010 (EA 2010) and the European Convention on Human Rights (the Convention).

Ofsted wrote a draft report in which they considered this policy to be unlawful when reviewed in the context of the EA 2010 and the Human Rights Act 1998 (HRA 1998) and in a report issued in draft on 12 June 2019 Ofsted assessed the effectiveness of Cornerstone's leaders and managers as 'Inadequate'.

The High Court dismissed Cornerstone’s claim, including holding that whilst its policy was not unlawfully discriminatory on the grounds of religious belief, it was unlawfully discriminatory on the grounds of sexual orientation.

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The Court of Appeal dismissed Cornerstone’s appeal.

Background law and facts

Cornerstone are a small Independent Fostering Agency (IFA) founded in 1999 based in the North East of England, which at the time of Ofsted’s inspection in 2019 had 14 approved fostering households and cared for 18 children. They claim to provide high quality adoption and fostering services according to Christian principles for children who are hard to place.

The wording of the policy, which potential carers were required to sign up to, under scrutiny appears at paragraph 10 of their Code of Practice under which

There is an expectation on all Cornerstone carers to: […] Set a high standard in personal morality which recognises that God’s gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex. [21]

Cornerstone argued that its policy in its entirety was essential to the continuation of its work, both because of the funding it receives and because of the shared faith and values of its carers which led to a community of fellowship and worship.

The Charity Commission Review in 2010

Notably the Charity Commission had also reviewed Cornerstone’s work in 2010 after the judgment in Catholic Care ((Diocese of Leeds) v Charity Commission for England and Wales [2010] EWHC 520 (Ch)) noting that the implications from that judgment were that an organisation that discriminates in a way that is not justified is not likely to be established for the public benefit and as such will not be a charity.

Cornerstone’s response to the Charity Commission was, amongst other things, that it did not discriminate on the grounds of sexual orientation but sexual behaviour. The Charity Commission accepted this but without reason. The Charity Commission also accepted that Cornerstone’s provision of services fell within paragraph 2 of Schedule 23 to the EA 2010 which permits the restriction of services because of the purpose of the organisation and/or to avoid causing offence on the grounds of religion or belief.

The Court of Appeal held that the distinction between sexual behaviour and sexual orientation was a nullity because sexual behaviour was a manifestation of sexual orientation. Additionally, the Court found that, as per the judgment in the High Court, Parliament had allowed discrimination on religious grounds except in respect of acts done on behalf of a public authority pursuant to contract which are discriminatory on the grounds of sexual orientation.

Natasha Isaac is a barrister at 1 Crown Office Row. This article first appeared in the set's UK Human Rights Blog.

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