Equality v religious belief
Michael King and Fraser Simpson review the latest turn in the Catholic Care saga and ask charities to think of the children needing adoptive parents.
The Charity Commission has published its latest decision to refuse consent for Catholic Care, one of the Catholic adoption agencies, to amend its charitable objects so as to allow it to discriminate on the grounds of sexual orientation.1 Catholic Care’s first application for such consent was refused by the Charity Commission and subsequently the charity appealed to the Charity Tribunal and the High Court.
This article considers the legal background to the case, the Charity Commission’s reasons for its latest refusal, and alternative ‘open’ structures adopted by other agencies whilst retaining their Catholic charism. The sequence of events is summarised in figure 1.
The prohibition on discrimination
The Equality Act 2006 (the ‘Act’) came into force in 2007 with the intention of prohibiting all kinds of discrimination. The Act allowed for regulations to be made by statutory instrument so as to outlaw discrimination on the grounds of sexual orientation in the provision of goods, facilities and services in England, Wales and Scotland.
The Equality Act (Sexual Orientation) Regulations 2007 (the ‘regulations’) were subsequently brought into force in April 2007 to prohibit discrimination by any person providing services and/or facilities to the public against a person seeking to use them.
As a result, it is unlawful for any adoption agency (be it faith-based or totally secular) to refuse to provide adoption services to a person on the grounds of his/her actual or perceived sexual orientation.
A temporary exemption
The regulations provided a temporary exemption for voluntary adoption and fostering agencies that discriminate on the grounds of sexual orientation where such discrimination was necessary in order to comply with the doctrine of the organisation or so as to avoid conflicting with the convictions of a significant number of the religion’s followers. However, this temporary exemption only ran until the end of 2008 and therefore Catholic Adoption Agencies (the agencies) had to think very carefully about how to conduct their adoption activities from 1 January 2009 in accordance with the law.
2009 and beyond
Once the temporary exemption period expired, the regulations essentially left three choices for the agencies:
1. Ensure that the agency does not discriminate on the grounds of sexual orientation (i.e. pursue an ‘open policy’ with regard to prospective adopters);
2. continue discriminating, but rely on an exemption to the regulations – i.e. reg.18, which potentially allows such discrimination if to do so is a requirement of the agency's governing document; or
3. cease to provide any adoption services.Certain agencies have since ceased to provide adoption services at all and this has been greeted with some sadness. Several others have adopted an open policy as regards adoption, making clear that as Catholic organisations they do not discriminate against particular groups but that in finding an adoptive parent, they would consider primarily the child’s best interests. Others, including Catholic Care, sought to rely on the reg.18 exemption but this in turn required amendments to the charitable objects contained in their memorandum and articles of association.
Regulation 18
Regulation 18 provides an exemption from the regulations for persons who discriminate on the grounds of sexual orientation where they are “acting in pursuance of a charitable instrument”, and the discrimination is ‘imposed by reason of or on the grounds of the provisions of that charitable instrument’. Therefore, in order to rely on this exemption an agency would need to amend its charitable objects if (which would be unusual) those objects did not already explicitly restrict the provision of its services to heterosexual couples. Any such change would require the Charity Commission’s consent under s.64 Charities Act 1993.
Catholic Care’s approach
Catholic Care decided to seek to rely on the reg. 18 exemption and applied to the Charity Commission for consent to amend its charitable objects to allow it to discriminate. Catholic Care argued that they had been particularly successful in placing with adoptive parents children who through disability or background were considered “hard-to-place”. The Charity Commission refused consent, following which there were appeals by Catholic Care both to the Charity Tribunal and to the High Court. The court directed that the application for s.64 consent should be remitted to the Charity Commission in order to be reconsidered in the light of the principles set out in the judgement of Mr Justice Briggs.
Accordingly, Catholic Care reapplied for s.64 consent from the Charity Commission, but its application has again been refused. The Charity Commission, being entitled to consider the application afresh, relied on different grounds. The Commission applied the principles laid down by Briggs J and concluded that the evidence provided by Catholic Care in support of its application “did not provide sufficiently convincing and weighty reasons to justify the charity’s wish to restrict its service to heterosexual prospective adoptive parents”.
The Charity Commission set out the following reasons as the basis for this decision:
- It is in the interests of children (which are paramount) that the pool from which prospective adoptive parents are drawn is as wide as possible;
- discrimination on the grounds of sexual orientation is serious as it departs from the principle of treating people equally;
- evidence from local authorities suggests that, even if Catholic Care were to close its adoption service, the children would be likely to be placed through other channels
- local authorities consider homosexual couples to be suitable prospective parents for hard-to-place children and such adoptions have been successful; and
- respect for religious views is not a justification for discrimination on the grounds of sexual orientation in this case because of the essentially public nature of adoption services.
Alternative approaches
The solution followed by three agencies, covering seven dioceses in England & Wales has been to embrace the regulations, both in technical detail and in spirit, by pursuing an open policy with regard to potential adopters.
The result has been that non-discriminatory agencies are simply carrying on doing what they have done before, having regard for the best interests of the child.
Some commentators agree that this has been achieved without undermining or jeopardising the Catholic nature of the adoption agency involved. Although some bishops and clergy may not feel able to sit on the boards of such agencies, it is argued that this does not necessarily alter their Catholic heritage, charism and ethos. It must be remembered that, at law, faith-based adoption agencies are not usually branches of a particular religious body, but are generally autonomous charities in their own right, and so the question of the interests of those whom they are set up to serve has to be uppermost in the minds of the trustees, whatever their decision may be.
Some church leaders have suggested that, going forwards, funding of agencies might be withdrawn and leases over diocesan properties might not be renewed. Agencies that do follow the open route must be aware of these risks and try to mitigate the potential harm by positive dialogue with dioceses and their people. They might perhaps draw comfort from the fact that there are many Catholic charities in existence, dealing with education, the care of disabled or elderly people or rehabilitation of sufferers from addiction, which have no clerical trustees but are nevertheless accepted as carrying out the wider mission of the Church.
The future
All of the Catholic adoption agencies have deservedly high reputations for the work which they have pursued in the best interests of the children whom they were established to serve and one hopes that in one way or another this work will continue.
However, it is in our respectful view possible for those agencies, which after careful thought have adopted an open policy, to comply with the regulations and yet to think of themselves as pursuing the mission of the Church towards children in need of adoptive parents.
It remains to be seen whether Catholic Care will appeal the Charity Commission’s latest decision…
Note: This case has been previously covered in Caritas in the news sections of March 2010 (‘Catholic Care wins gay adoption challenge’, July 2009 ‘Head in the sand?’ and April 2009 (‘Charity Tribunal reviews proposals to restrict adoption services to heterosexsuals’).
1. www.charitycommission.gov.uk/library/ about_us/catholic_care.pdf
Author: Michael King
Michael King is senior partner of Stone King LLP and head of its charity and education team. An active member of the Charity Law Association, he was its chairman from 1997 to 2000.
He is recognised by Chambers Directory and the Legal 500 as a leader in charity law and has held several appointments as receiver and manager/interim manager of a charity by the Charity Commission.
He is co-author with Ann Phillips of Charities Act 2006 - Guide to the New Law (Law Society 2007).
He regularly speaks and writes on charity matters, lives in Bath and divides his time between Bath and London
Author: Fraser Simpson
Fraser Simpson is a solicitor in Stone King’s charity and education team. He has acted for a wide variety of charity and non profit clients. He has extensive experience of registering new charities, advising on governance issues and assisting charities wishing to incorporate. Fraser is a member of the Charity Law Association.
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