A High Court ruling today in favour of a Catholic adoption agency came in for immediate and intemperate criticism from campaign groups who are not likely to have read the 30-page judgment delivered by Mr Justice Briggs. All that the judge did was to give Catholic Care a second chance to persuade the Charity Commission that the work it has been doing for many years remains lawful.
Catholic Care is a charity which recruited and supported adoptive parents in the Leeds area for “hard-to-place” children — often, those with special needs.
For these children, Catholic Care was usually the adoption agency of last resort. Local authorities approached Catholic Care when all other avenues had failed. Over a long period, it had found adoptive parents for unwanted children at the rate of 10 a year. Without Catholic Care, those children would probably not have been adopted.
Catholic Care carried out its activities in accordance with the tenets of the Roman Catholic Church, on whose members it relied for financial support. Those tenets do not permit adoption by same-sex partners. Its adoption services were provided only to married couples.
Since adoption services accounted for less than 10 per cent of Catholic Care’s work, it was wholly impracticable for the charity to sever its ties with the Church after new regulations had been introduced that made it unlawful for service-providers to discriminate on grounds of sexual orientation.
However, regulation 18 of the Equality Act (Sexual Orientation) Regulations 2007 provides an exception for charities. It is not unlawful to provide benefits only to people of a particular sexual orientation if this is done “in pursuance of a charitable instrument” — the document that sets up or governs the charity.
There was nothing in Catholic Care’s governing documents restricting its services to heterosexuals. So the charity decided to change its memorandum of association.
Such a change requires the consent of the Charity Commission. But permission was refused. That was because the commission thought that the change proposed by Catholic Care would not allow it to take advantage of the exception in regulation 18.
In the view of the Charity Commission, the people who received “benefits” from Catholic Care were the children in need of adoption, not the adoptive parents. Restricting services to heterosexuals would not bring it within the exception.
Catholic Care appealed to the Charity Tribunal. The question for the tribunal was simple enough: if the charity adopted the proposed changes, would it be able to refuse adoption services on grounds of sexual orientation?
After the tribunal had delivered a preliminary ruling that Mr Justice Briggs found “not entirely easy to understand”, it decided that the answer was “no”. So Catholic Care appealed to the High Court.
First, Mr Justice Briggs dealt with the interpretation of regulation 18. Like any other legislation, it had to be interpreted — as far as possible — in a way that was compatible with the Human Rights Convention. Article 14 of the convention says that other human rights “shall be secured without discrimination”.
But article 14 is not absolute. Sexual discrimination may be permitted, but only if there are “particularly convincing and weighty reasons”. And article 9 of the convention provides a limited measure of protection for religious beliefs.
So the judge concluded that the protection against discrimination provided by the regulations was qualified rather than absolute. That was because these regulations implemented a convention right that was qualified.
“Some forms of differential treatment may nonetheless be justified under article 14,” the judge explained, “if undertaken for a legitimate aim and in a manner where the means employed are proportionate to the aim sought to be realised.”
If that could be demonstrated to the required standard, it would not be discrimination. He continued:
In my judgment, the purpose of Regulation 18 is to afford to charities an exception from the prohibition of differential treatment on grounds of sexual orientation, wherever the public purpose being (or to be) achieved by the charity in question constitutes an Article 14 justification for that differential treatment.
The judge then reverted to the interpretation of regulation 18. Was the Charity Commission right in interpreting “benefits” as relating only to the children in need of adoption? That limitation was “neither logical, rational, purposive nor responsive to any reasonable linguistic interpretation of the language used”, he concluded.
After all, a charity for the relief of sickness could provide benefits to nurses. A charity for the relief of disabled people could fund holidays for full-time carers. “Similarly, Catholic Care and similar charitable adoption agencies serve needy children by making benefits available to prospective adoptive parents.”
The tribunal had interpreted regulation 18 differently but it, too, had got it completely wrong.
So that left the question of whether Catholic Care could rely on regulation 18, as interpreted by the High Court. That, in turn, depended on whether its activities came within article 14 of the Human Rights Convention.
Christopher McCall QC, appearing pro bono for Catholic Care, argued that the continuation of its adoption service to heterosexual couples did indeed satisfy article 14.
It served the legitimate aim of providing suitable adoptive parents for a significant number of children who would otherwise go un-provided for.
The consequential differential treatment by reference to the sexual orientation of prospective adoptive parents was a proportionate means of achieving that legitimate aim, since there were other agencies willing to provide similar services to same-sex couples, and since the choice of appropriate parents for any particular child was made not by Catholic Care, but by the relevant local authority, in conjunction with the court.
Same-sex couples would therefore neither be deprived of any significant benefit (not least since the only alternative of closure would make that benefit unavailable anyway), nor would they be disadvantaged in any competition with heterosexual couples for choice as the adoptive parents for any particular child.
Since any competition between the interests of the children and the interests (including the human rights) of prospective adoptive parents could only be properly resolved in favour of the children, the Article 14 justification was plain and obvious.
On the face of it, the judge regarded that as an arguable case. But it had come before the High Court only on a point of law. The facts had not been established.
Mr Justice Briggs found himself somewhere in the middle. In his view, the argument put by Helen Mountfield on behalf of the Equality and Human Rights Commission — that discrimination not founded on existing case-law must be discriminatory — “commands real respect”.
On the other hand, Mr Justice Briggs continued, “the very unusual predicament of Catholic Care, its status as an adoption agency of last resort for hard-to-place children and the arguably pre-eminent needs of those children who will otherwise be left unadopted, may constitute a very special and unusual case for recognition under Article 14”. Although it was “quite unlike any other to be found in the existing jurisprudence”, it was “none the worse for that”.
In the end, the judge passed the buck back to the Charity Commission. He accepted, no doubt with relief, Catholic Care’s view that the commission was best placed to decide — “at least first time round”.
It is therefore by no means certain that the Charity Commission will decide in favour of Catholic Care. But at least they won’t be able to rely on a misinterpretation of regulation 18. And if they get it wrong again, Catholic Care will no doubt be back in the High Court.
Meanwhile, an increasing number of difficult children in Yorkshire will have to stay in care rather than enjoy the benefits of adoption. The judge was quite right to tell the Charity Commission to sort this out “with as much expedition as the circumstances permit”.
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