The Upper Tribunal has decided that Catholic Care, a private adoption agency, cannot exclude same-sex couples from its services on the grounds if it does not do so it will lose its funding and the number of adoption placements will be reduced.
Catholic Care’s dispute about restricting its services to heterosexual adoptive parents has a very long history.
Catholic Care excluded same-sex couples from consideration as adoptive parents in accordance with what it perceived to be Roman Catholic teaching – though it had been willing to consider adoptive parents from other denominations and other faiths. The Equality Act (Sexual Orientation) Regulations 2007 made that policy unlawful but Regulation 15 of the 2007 Regulations gave voluntary adoption and fostering agencies a year’s grace in which to comply – until 31 December 2008.
In order to be able to continue their policy, Catholic Care and another adoption charity, Father Hudson’s Society, applied for the Charity Commission’s consent to replace the objects clause in their Memoranda of Association with a new objects clause that would bring them within the exemption regime provided for charities under Regulation 18 of the 2007 Regulations, which provided an exemption for restricting benefits to persons of a particular sexual orientation provided that it was done in pursuance of the provisions of a charitable instrument. The Commission refused and the two charities appealed; but Father Hudson’s Society dropped out of the appeal at an earlier directions hearing.
In Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales  Charity Tribunal (1 June 2009) the Tribunal concluded that Catholic Care’s proposed change of objects would be unlawful and dismissed the appeal on two grounds:
- that Parliament ‘s purpose in enacting Regulation 15 would be negated if Catholic Care were permitted simply to continue with identical activities under Regulation 18 once the time-limit in Regulation 15 had expired; and
- that because the activities of Catholic Care were publicly-funded, the proposed activities would be unlawful under Regulation 8 and (in the case of religious organisations such as the Catholic Care) by virtue of Regulation 14(8) “because of the public character with which they are imbued” (para 22).
Catholic Care appealed; and in Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Anor  EWHC 520 (Ch) (17 March 2010) Briggs J remitted the matter back to the Charity Commission for reconsideration. He formulated a test for the Commission to consider in applying the Regulations to the case – which was summarised by the First-Tier Tribunal (Charity) as follows:
“whether the less favourable treatment contemplated by the proposed amendment to the Charity’s objects clause would constitute a proportionate means of achieving a legitimate aim, so that the less favourable treatment would be justified for the purposes of Article 14 [discrimination] of the European Convention on Human Rights” (in Catholic Care v Charity Commission for England and Wales  UKFTT B1 (GRC) (26 April 2011) at para 9).
The Commission again rejected Catholic Care’s application; and at a further appeal against that rejection in 2011 – Catholic Care v Charity Commission for England and Wales  UKFTT B1 (GRC) (26 April 2011) – the First-Tier Tribunal (Charity) concluded that the less favourable treatment contemplated by Catholic Care would not be justified. It had failed to meet the statutory test imposed by s 193 Equality Act 2010 and the proposed changes to its objects could not, therefore, be permitted. It was accepted that
“… religious conviction alone could not in law provide a justification for the denial of its adoption services to same sex couples. Religious belief is… protected by ECHR and by the Equality Act 2010 in certain private circumstances; however, it was agreed between the parties that the Commission and the Tribunal were bound by case law to the effect that religious belief cannot provide a lawful justification for discrimination on grounds of sexual orientation in the delivery of a public-facing service such as the operation of a voluntary adoption agency” (para 14).
Moreover, the public sector equality duty imposed by s 149(1) Equality Act 2010 to pay due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity “would be likely in due course to impact upon the willingness of local authorities to work with a charity which discriminated on grounds of sexual orientation in respect of adoption placements” (para 62).
In this latest appeal before the Upper Tribunal – Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales  CA/2010/0007 UKUT (Tax & Chancery) (2 November 2012) – Catholic Care accepted that religious conviction alone could not in law justify the denial of its adoption services to same-sex couples but argued that the discrimination it proposed was proportionate to achieving a legitimate aim because the services that it denied to same-sex couples would be available to them from other voluntary adoption agencies and local authorities. Moreover, unless it was permitted to discriminate in that way it would no longer be able to raise the necessary voluntary income needed to run its adoption service and would therefore have to close the service. Closure, argued Catholic Care, would reduce the overall provision of adoption services and the number of children placed with adoptive families.
Though he was not entirely uncritical of the First-Tier Tribunal’s reasoning (see paras 60, 61 and 63), Sales J held that its overall conclusion was correct and rejected the latest appeal:
“[T]he FTT was right to conclude at paragraph 59 that the Charity had failed to show that there were sufficiently weighty reasons to justify the discrimination it proposed to engage in. The fact that same-sex couples could seek to have access to adoption services offered elsewhere tended to reduce somewhat the immediate detrimental effect on them, but it did not remove the harm that would be caused to them through feeling that discrimination on grounds of sexual orientation was practised at some point in the adoption system nor would it remove the harm to the general social value of promotion of equality of treatment for heterosexuals and homosexuals – a value endorsed by Parliament in assessing and responding to the needs of society by legislating general rules to promote equality of treatment for homosexuals” (para 66).
In doing so, however, he was at pains to acknowledge that Catholic Care’s views, even though he disagreed with them, were sincerely and honestly held:
“… it is very unlikely indeed that insistence by a donor who was a racist bigot that some benefit be conferred on children in need, but only if they are of a particular race, would be found to justify a body in providing that benefit to classes of person limited in that way. That would involve a gross intrusion upon the values which should be expected to be promoted in the public domain in accordance with the European Convention on Human Rights, which seeks to foster a democratic society marked by pluralism, tolerance and broadmindedness … On the other hand, where third party donors are motivated by sincerely-held religious beliefs in line with a major tradition in European society such as that represented by the doctrine of the Catholic Church (and particularly where, as here, their activities do not dominate the public sphere in relation to the activity in question – provision of adoption services – which are otherwise widely available to homosexuals and same sex couples), the position is rather different. In my opinion, donors motivated by respect for Catholic doctrine to have a preference to support adoption within a traditional family structure cannot be equated with racist bigots…” (paras 44–45).
For a detailed analysis of the judgment, see Rosalind English’s post on UKHRB: Upper Tribunal confirms illegality of Catholic Charity’s ban on same-sex couple adoption.
The BBC subsequently reported that Catholic Care had issued a statement in which it said that without the change in its objects that it sought it would be forced to close its adoption service for lack of funds. It would now “take time to consider the decision in detail and decide on its next steps” – presumably the possibility of going to the Court of Appeal.