Charity Commission criticised by judge for denying exemption to laws on same-sex adoption
BY SIMON CALDWELL
A CATHOLIC adoption agency has won a legal battle to continue its policy of assessing only married couples and single people as potential adopters and foster parents for vulnerable children.
The ruling in the High Court in London means that Catholic Care adoption agency may be exempt from dealing with same-sex and cohabiting couples who present themselves as prospective parents.
The charity, which covers the dioceses of Leeds, Middlesbrough and Hallam, is the only one of 11 English and Welsh Catholic adoption agencies to fight the 2007 Sexual Orientation Regulations through the courts.
Unable to comply both with Catholic teaching that gay adoption is “gravely immoral” and the regulations compelling them to assess gay couples, the other agencies have either closed their adoption services or cut from the control of their dioceses to become secular. But Leeds-based Catholic Care challenged a ruling by the Charity Commission, backed by the Charity Tribunal, that it could not use Regulation 18 of the SORs to appeal for an exemption from rules that ban discrimination against gay people in the provision of goods and services. Regulation 18 allows a charity to practise limited discrimination in the pursuance of its objectives.
Last week Mr Justice Briggs published his written ruling on the case, heard two weeks earlier, finding in favour of the adoption agency.
He said that, in practice, no gay couples lost out as a result of the charity’s policy, because the agency provided solely for children whom the state adoption system – which is open to same-sex couples – had already tried but failed to help.
He said the Charity Commission had misinterpreted Regulation 18 and criticised its thinking as “neither logical, rational, purposive nor responsive to any reasonable linguistic interpretation”.
He said Catholic Care found “suitable adoptive parents for a significant number of children who would otherwise go unprovided for”.
The judge wrote: “Samesex 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 of any particular child.” Mr Justice Briggs ruled the purpose of Regulation 18 was to allow exceptions if they could be justified under Article 14 of the European Convention on Human Rights, which prohibits discrimination.
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, quite unlike any other to be found in the existing jurisprudence, but none the worse for that”, said the judge.
He ordered the Commission to reconsider its position in light of his ruling and to pay the costs of the case, estimated to be in the region of £100,000.
Lawyers acting for the adoption society – London based solicitors Bircham Dyson Bell and barristers Christopher McCall QC and Matthew Smith – had worked pro bono for a further £55,000.
Before the SORs came into force in 2009 the Catholic adoption agencies found new homes for about 250 children a year, many of them categorised as “difficult to place”. Catholic Care dealt with about 20 children a year. It was revealed in the House of Lords that there has been just one recorded instance of a gay couple approaching a Catholic agency in the last three years and they were referred elsewhere.
Bishop Arthur Roche of Leeds welcomed the High Court judgment. “We look forward to producing evidence to the Charity Commission to support the position that we have consistently taken through this process that without being able to use this exemption children without families would be seriously disadvantaged,” he said.
“Catholic Care has been providing specialist adoption services for over 100 years. We have helped hundreds of children though the recruitment, assessment, training and support for prospective adoptive parents as well as offering on-going and post-adoption support to families that give such security and love for some of the most vulnerable children in our society. The judgment today will help in our determination to continue to provide this invaluable service to benefit children, families and communities,” he said.
A statement from Caritas Social Action Network, the umbrella network for Catholic care agencies, said: “By requiring the Charity Commission to review its decision, the court has upheld the legitimate freedom of charities to organise themselves in such a way that their activities reflect their religious ethos when justified in the public benefit, as we believe is the case in this instance. In the context of cooperation between faith-based charities and public authorities in future this is an extremely important principle to uphold within the ambit of the common good of society, and subject to the proper principle of proportionality.” Secularist and gay groups were outraged, however. The National Secular Society described the ruling as the “first major setback for the protection of gay people from discrimination by religious groups”.
Jonathan Finney of Stonewall said: “It’s unthinkable that anyone engaged in delivering any kind of public or publicly funded service should be given licence to pick and choose service users on the basis of individual prejudice. It’s clearly in the best interests of children in care to encourage as wide a pool of potential adopters as possible.
“All religious adoption agencies receive funding or subsidy in some form from the public purse. There should be no question of discriminatory behaviour by any organisation that benefits from the taxpayer,” Mr Finney said.