Fostering Discrimination

Why do the courts have such difficulty with cases involving religious belief? Is it because judges who spend their lives weighing evidence are totally at a loss when confronting the unknowable?

At the end of February, Lord Justice Munby and Mr Justice Beatson gave judgment in the High Court on a challenge brought by Eunice and Owen Johns against Derby City Council. The couple, in their sixties and members of the Pentecostal Church, are opposed to homosexuality. They had asked their local council for the necessary approval to work as short-term respite foster carers.

According to the Christian Legal Centre, which supported the couple’s claim, the High Court ruling was “a landmark judgment which will have a serious impact on the future of fostering and adoption in the UK” and which “leaves the Johns currently unable to foster a child as desired”.

It was nothing of the sort. A lot more could have been done by the courts to make this clear — although, even then, the ruling would not necessarily have been accurately reported. Derby council had never refused to approve the couple as foster parents. It had simply put off a decision while it considered the law. 

All that the High Court did in February was to refuse Mr and Mrs Johns permission to challenge Derby council’s non-decision. The judges laid down no new law and their decision is not binding on other judges sitting in the High Court or above it.

What, then, was the case about? After the council had deferred a decision on the couple’s request for approval, both parties had asked the court a question of the kind that law students are expected to answer in examinations: how should a local authority balance its duty not to discriminate on religious grounds against its duty not to discriminate on grounds of sexual orientation?

A good student might write an essay debating the matter. But the only response a court should give is that it all depends on the facts of the case. In the Johns and Derby case, though, there were no established facts: neither the couple nor the council had filed any evidence.

With no decision to challenge and no facts to consider, the two judges concluded that the case was “at the very outer limit of what could be an appropriate exercise of our jurisdiction”. They were wrong. It fell outside their jurisdiction. They should simply have refused permission without an oral hearing, perhaps pointing out that the courts were not there to give legal advice.

But judges like  —  commentators — find cases like this interesting. Not unreasonably, they think that their opinions will be helpful, perhaps even to law students.

So Munby and Beatson developed the initial question into a series of legal propositions which they discussed in a judgment running to 34 closely-typed pages: Munby is not known for the brevity of his rulings. After 109 paragraphs, the court decided to make no order or declaration.

All this followed a one-day hearing last November, which cannot have been a very enjoyable occasion. The two claimants were represented by Paul Diamond, who is a committed Christian. We know this because at one point in the hearing he began a sentence with the phrase “I believe”. Since his words introduced an expression of faith rather than a recollection, they will not have impressed the court.

Paradoxically, it is never a good idea for an advocate to be committed to his or her cause. In Paul Diamond’s case, it led him to use what the court described as “extravagant rhetoric”, as well as written assertions which the court dismissed as a “travesty of the reality”. 

The judges were not dealing with the grant of state “benefits”, despite what the barrister had claimed. “No one is asserting that Christians […] are not ‘fit and proper’ persons to foster or adopt,” the court said. “No one is contending for a blanket ban. No one is seeking to de-legitimise Christianity or any other faith or belief […] No one is asserting that the claimants are bigots.”

However, the judges did conclude that a local authority (such as Derby) was “entitled to explore the extent to which prospective foster carers’ beliefs may affect their behaviour [and] their treatment of a child being fostered by them”. Although religious discrimination would be unlawful, a refusal to grant approval because of the couple’s stance on sexual orientation would not amount to religious discrimination.

I am certain that Lord Justice Munby and Mr Justice Beatson have accurately summarised the law. But Christian campaign groups should, in the future, direct their criticism towards the politicians who make law rather than at the judges who enforce it. Better still, they should avoid using tendentious arguments in support of claims which are unwinnable.

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