Adoption and race discrimination: Mander

We previously posted a brief note on the case of Sandeep and Reena Mander, based on press reports; however, the full judgment in Mander & Anor v Royal Borough of Windsor & Maidenhead & Anor [2019] EWFC B64 is now available.

Background

Sandeep and Reena Mander are of Sikh heritage and were born and brought up in the UK. They identify as part of the wider Sikh community but are not religious:

“They go to Temple a few times a year much as, they say, some of their non-practising Christian friends go to church at Christmas or Easter. They consider themselves culturally British, whilst acknowledging their Indian heritage” [1].

They decided to seek to adopt after some seven years of numerous failed attempts at IVF [2] and they approached Adopt Berkshire, which at that time offered adoption services in a number of Berkshire boroughs including the Royal Borough of Windsor & Maidenhead. Ultimately, however, they were told that Adopt Berkshire would not progress their application further, for various reasons:

“(i) Adopt Berkshire only had white British pre-school children available for adoption

(ii) this situation would continue for the foreseeable future;

(iii) Adopt Berkshire already had a surfeit of white British pre-approved prospective adopters;

(iv) priority would be given to white British adopters in the placement of these children as they shared the same background; and

(v) the chances of Adopt Berkshire placing a child with Mr and Mrs Mander were therefore remote” [4].

It was suggested they consider an international adoption from India [5] and they were given details of the Inter-country Adoption Centre which could assist them in exploring the possibilities of adoption from abroad [8].

With the support of the Equality and Human Rights Commission, they sued, arguing that the Defendants had discriminated against them on the basis of their race before they made a formal application to adopt, inter alia by refusing to progress them to the Registration of Interest form/application stage [9]. The Defendants were clear that there was nothing in Adopt Berkshire’s dealings with them that suggested that they would not be suitable people to adopt or could not offer a loving and caring home to a child [10].

They claimed for unlawful direct (alternatively, for indirect) discrimination on grounds of race), in particular on the basis of their national or ethnic origins and/or their colour, contrary to ss.13, 19 and 29 of the Equality Act 2010) and for breach of ss.6(1) and 7(1) of the Human Rights Act 1998 and Schedule 1, and Articles 8 (respect of private and family life), 12 (right to marry and found a family) and 14 (discrimination) ECHR [11], though they did not press the indirect discrimination or Article 8 claims at trial.

The Defendants said that they had decided not to progress Mr and Mrs Mander’s expression of interest in being approved to adopt any further because they judged that there was insufficient likelihood at that time that a child or children would be matched and subsequently placed with them for adoption within a reasonable timescale. Adopt Berkshire also pleaded that it had a limited capacity to assess prospective adopters and that its actions were justified because they “gave priority to the likelihood of applicants being approved and the subsequent likelihood of having children placed with them for adoption in reasonable timescales” [14]. Further, they took into account the profile of children needing placement because of the necessity to match prospective adopters and children and fulfil the requirements of s.1 of the Adoption and Children Act 2002, under which “The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life”. They also rejected the claims under the Human Rights Act and the ECHR [14].

The judgment

HHJ Clarke was satisfied that there was a prima facie case of direct discrimination. She noted either that there was no dispute that the acts complained of had taken place or that Mr and Mrs Mander’s account had not been challenged. Both the contemporaneous notes and the reasons given in writing afterwards by the various employees of Adopt Berkshire and RBWM had cited Mr and Mrs Mander’s ethnicity as a relevant consideration for the decision. The defence had been on the basis of an adequate explanation for differential treatment; and she was bound by the earlier authorities not to consider that explanation at the stage of determining whether or not a prima facie case had been made out. Accordingly, she had to find that there had been direct discrimination unless the Defendants could satisfy her that, on the balance of probabilities, they had not discriminated against Mr and Mrs Mander [80].

The “crucial question”, as Lady Hale had put it in R (E) v Governing Body of JFS and Anor [2009] UKSC 15, was whether or not Mr and Mrs Mander had been treated less favourably by being refused to progress to the Registration of Interest stage, terminated from the prospective adopters’ approval process and subjected to the pleaded detriments on the grounds of race “or for some other reason”. She was not satisfied that Mr and Mrs Mander had received that less favourable treatment for “some other reason” and, therefore, the presumption of direct discrimination arising from Mr and Mrs Mander’s prima facie case stood [99]. On that basis, the Defendants had directly discriminated against them on the grounds of race [100].

Concluding on the question of damages, HHJ Clarke was scathing about the attitude of Adopt Berkshire and the local authority:

“I consider that Mr and Mrs Mander were particularly vulnerable, being a childless couple who had gone through numerous rounds of IVF and a sad early pregnancy loss, and were seeking adoption to create their family. The Defendants described them as desperate to adopt. This is an aggravating feature. Another aggravating feature is the fact that the discrimination caused Mr and Mrs Mander to make public matters which were private to them, including their desire to adopt and difficulty in having their own biological children. This is because the complaint was not handled properly by RBWM (and in fact was never determined), which meant Mr and Mrs Mander felt forced to seek assistance from Mrs May MP, their local councillor, the Local Government Ombudsman, the Equality and Human Rights Commission and ultimately the courts. In addition, Mr and Mrs Mander describe the hurt, stress and anxiety that the actions of the Defendants caused them in stark terms which, if anything, they have understated in their written evidence” [115: emphasis added].

Further comment would be superfluous.

Cite this article as: Frank Cranmer, "Adoption and race discrimination: Mander" in Law & Religion UK, 10 December 2019, https://lawandreligionuk.com/2019/12/10/adoption-and-race-discrimination-mander/

[With thanks to Megan Manson for alerting me to the existence of the transcript.]

 

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