Cornerstone (North East) Adoption and Fostering Services Ltd) is an independent fostering agency which recruited and supported carers for children in local authority care needing fostering and/or adoption . Cornerstone only accepted heterosexual married Evangelical Christians as potential carers – a stance which Ofsted considered unlawful. In a report issued in draft on 12 June 2019, Ofsted had assessed the effectiveness of Cornerstone’s leaders and managers as “Inadequate” . It had done so because it had concluded that Cornerstone’s recruitment and selection process for foster-carers contravened the Equality Act 2010 and the Human Rights Act 1998 by discriminating on the grounds of sexual orientation and that it contravened the HRA 1998 on the grounds of religion or belief. It required Cornerstone, by 31 July 2019, not to discriminate in its recruitment of foster-carers in either respect .
Specifically, Cornerstone’s Code of Practice required carers to:
“10. Set a high standard in personal morality which recognises that God’s gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication, adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex. (1 Cor 12:23; 1 Cor 6:12-20; Eph 4:17-24; 1 Thes 4:1-8; Rom 1:26-27; 1 Tim 1:9-11; Gen 1:27; Deut 22:5)” .
The proceedings at first instance
(1) that Cornerstone’s recruitment policy was not unlawfully discriminatory on the grounds of religious belief under either statute because the exception in paragraph 2 of Schedule 23 EA 2010 applied;
(2) that Its policy of requiring applicants to refrain from homosexual behaviour unlawfully discriminated against homosexuals under the EA 2010, and in requiring applicants to be heterosexual it unlawfully discriminated against homosexuals under the HRA 1998;
(3) that Ofsted’s report had not violated Cornerstone’s rights under Articles 9-11 and 14 ECHR; and
(4) that Ofsted’s report had not breached its guidance o the inspection of independent fostering agencies (entitled “Social Care Common Inspection Framework: Independent Fostering Agencies” (February 2017) (‘SCCIF’));
Julian Knowles J had dismissed Cornerstone’s claim and ordered it to pay 75 per cent of Ofsted’s costs. Ofsted subsequently published an amended version of the Report that reflected the aspects of Cornerstone’s claim that had been upheld . Ofsted did not appeal his finding on religious discrimination .
Cornerstone sought permission to appeal on twelve grounds, of which permission was granted on five of them:
“Ground 1: the judge erred in concluding that Ofsted properly had – and in all the circumstances properly exercised its – power and jurisdiction to require Cornerstone to disapply or modify its recruitment policy for foster carers as contained in its charitable instrument, notwithstanding the finding by the Charity Commission – exercising the specific mandate afforded to it by Parliament under Section 193 EA 2010 – that when acting in pursuance of this charitable instrument, Cornerstone did not contravene the EA 2010.
Ground 3: the judge erred in concluding that Cornerstone’s recruitment, selection and appointment of Cornerstone foster carers in accordance with its policy constituted direct discrimination because of sexual orientation, within the meaning of s. 13(1) EA 2010.
Ground 4: the judge erred in concluding that Cornerstone’s recruitment, selection and appointment of Cornerstone foster carers in accordance with its policy is not a proportionate means of achieving a legitimate aim and is therefore unlawful indirect discrimination, within the meaning of s. 19(2)(d) EA 2010, on grounds of sexual orientation.
Ground 9: the judge erred in holding that when it recruits, selects and appoints Cornerstone foster carers in accordance with its policy, Cornerstone acts incompatibly with the Convention right under Art. 14 (read with Art. 8) of hypothetical gay or lesbian evangelical Christians who might wish to become Cornerstone foster carers; and
Ground 10: the judge erred in holding that Ofsted’s requirement that Cornerstone disapply or modify its recruitment policy for foster carers as contained in its charitable instrument was compatible with respect for the Convention rights under Arts. 9-11 and/or 14 which Cornerstone could pray in aid as a religious organisation” .
On appeal, in R (Cornerstone (North East) Adoption and Fostering Services Ltd) v HM Chief Inspector of Education, Children’s Services and Skills (OFSTED)  EWCA Civ 1390, Peter Jackson LJ said that he regarded the issue of justification as the decisive question in the case . The starting point of the judge at first instance had been that particularly weighty reasons were required to justify differential treatment on the grounds of sexual orientation and that the burden of justification lay on Cornerstone . Peter Jackson LJ accepted that some of Cornerstone’s arguments deserved to be placed in the balance in its favour on the question of justification and considered that “the real issue arose at stage four of Bank Mellat: whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, the former outweighs the latter” .
“As to that, I have reached the clear conclusion that the Judge was right to find that the different treatment arising under Cornerstone’s recruitment policy was not justified, either through the lens of the EA 2010 or of the HRA 1998” .
“The detrimental impact on society and on individuals of discrimination on the ground of sexual orientation has led the law to set a demanding standard of justification. As Baroness Hale said in Preddy at , we should not underestimate the continuing legacy of centuries of discrimination against homosexuals and, adapting her words to this case, we should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion .
“Further, and critically, the ordinary requirement that such discrimination requires weighty reasons is heavily underscored by statute in the case of a religious organisation that provides services to the public. The Judge was right to accord very considerable significance to this … and to require nothing less than clear evidence to prove that the discriminatory policy was justified .
“In the end, although there were matters that the Judge should, I think, have placed on its side of the scales, the simple fact is that this was Cornerstone’s claim and its evidence, taken at its highest, fell short of discharging the burden upon it” .
Though there were matters that the lower court should have placed on Cornerstone’s side of the scales, the simple fact was that it was Cornerstone’s claim and its evidence had fallen short of discharging the burden upon it. There could be no doubting the value of its work or the sincerity of its motives, but in order to justify its policy, it needed to provide credible evidence that there would otherwise be a seriously detrimental impact on carers and children – which it did not. While His Lordship conceded that he would not rule out the possibility of an organisation in Cornerstone’s position putting up a substantial evidence-based case on justification, Cornerstone had not done so, and its claim failed on the facts:
“In that respect, the outcome mirrors Catholic Care, but the challenge facing Cornerstone was all the greater because of the implications of Schedule 23 EA 2010 for the proportionality assessment” .
Asplin and Nicola Davies LJJ agreed: appeal dismissed.