Adoption services, sexual orientation, discrimination and Scots charity law

St Margaret’s Children and Family Care Society, based in Glasgow, is a voluntary adoption agency connected to the Roman Catholic Church. The Office of the Scottish Charity Regulator (“OSCR” – or Oscar to its friends) received a complaint in May 2011 alleging that St Margaret’s was acting in breach of the Equality Act 2010 and therefore failing the charity test in s 7 of the Charities and Trustee Investment (Scotland) Act 2005 on various grounds.

After an investigation OSCR concluded that, insofar as the Society’s criteria for assessing enquirers who wished to adopt favoured Roman Catholic married couples over non-Roman Catholics and same-sex couples, the Society did indeed fail the charity test. OSCR therefore directed St Margaret’s to amend its practices and procedures to ensure that the criteria applied in deciding whether or not enquirers about assessment as adoptive parents would be accepted for full assessment were clear and transparent and complied fully with the requirements of the Equality Act 2010. In particular, St Margaret’s was directed to ensure that it did not discriminate unlawfully in respect of religion or belief and of sexual orientation –  both of which are “protected characteristics” under the 2010 Act

St Margaret’s has until 22 April 2013 to comply with OSCR’s direction – and if it has not done so by that date OSCR will look to remove it from the Scottish Charity Register. The charity also has the right to ask OSCR to review its decision to issue the direction.

Comment: Sharp-eyed readers will have already realised that we have been here before on the other side of the Border: the Catholic Care litigation, in which the Leeds-based adoption agency was refused permission to amend its charitable objects so that it could provide adoption services only to heterosexuals and in accordance with the tenets of the Roman Catholic Church. It appeared from the OSCR determination that – unlike Catholic Care – St Margaret’s did not dismiss out of hand couples in civil partnerships; instead, it gave them a lower priority than opposite-sex couples. Somewhat confusingly, however, the Society’s website currently states that “We will accept applications from married couples” and “We expect applicants to have been married for at least two years”.

It will be interesting to see how this develops. In the meantime, however, the BBC reports the Scottish Government’s Education Secretary Mike Russell as “disappointed” by the regulator’s decision:

“We do not believe that this outcome is in the best interests of the children St Margaret’s helps, who are in need of a safe and loving family home. We believe St Margaret’s should be able to continue its valuable work and are actively and urgently seeking a solution. I will personally meet with representatives of St Margaret’s next week to discuss the best way forward.”

Of course he is entitled to his view – and decisions on such matters are never easy. But the overriding duty of an independent regulator is to regulate impartially on the facts: “without fear or favour, affection or ill-will”. And politicians should be very slow to criticise regulatory decisions precisely for that reason.

3 thoughts on “Adoption services, sexual orientation, discrimination and Scots charity law

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