Analysis: the place of religion in foster care decisions

2 March 2011 by Rosalind English

Johns v Derby City Council and Equality and Human Rights Commission (intervening) [2011] EWHC 375 (Admin)- Read judgment

Religious views opposing homosexuality are a legitimate fostering concern and the local authority’s approach to this question did not constitute religious discrimination.

The claimant husband and wife applied to the defendant local authority to be approved as short-term, respite, foster carers.  They were members of the Pentecostalist Church and believed that sexual relations other than those within marriage between one man and one woman were morally wrong. The local authority considered that the claimants’ views on same sex relationships did not equate with the National Minimum Standards for Fostering Services which required carers to value individuals equally and to promote diversity. The local authority’s Fostering Panel therefore deferred a decision.

The claimants sought permission to apply for judicial review to challenge the defendant’s approach on the grounds  that persons who held their views should not be considered unsuitable to be foster carers for that reason alone. The local authority’s case was that it could lawfully decide not to approve a prospective foster carer who objected to homosexuality and same-sex relationships and was unable to respect, value and demonstrate positive attitudes towards homosexuality and same-sex relationships. The claimants contended that the local authority’s decision was unlawful in that they had taken irrelevant considerations into account, i.e. the consideration of their Christian beliefs; that the  local authority’s position constituted religious discrimination contrary to Article 9  ECHR; and that it was Wednesbury unreasonable for the majority of the population to be excluded from possible fostering because of its Christian beliefs.

This was a somewhat abstract application because there had been no actual decision on which to bite – the local authority had only deferred their decision, and the question framed by the parties to which they sought an answer from the court could, in Munby J’s words, “hardly be more open” –

How is the Local Authority as a Fostering Agency required to balance the obligations owed under the Equality Act 2006 …  the Human Rights Act 1998, the National Minimum Standards for Fostering Services and Derby City Council’s Fostering Policy when deciding whether to approve prospective foster carers as carers for its looked-after children…?

Despite his misgivings about adjudicating on so incomplete a matter Munby J provides a very welcome and illuminating analysis of the fraught issue of religious belief and discrimination. Seeking to disentangle sexual ethics from religious orthodoxy he notes how the common law has evolved to absorb the norms of a society that has become “both increasingly secular but also increasingly diverse in religious affiliation”. With that in mind, a secular judge

must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect. And the civil courts are not concerned to adjudicate on purely religious issues, whether religious controversies within a religious community or between different religious communities.

Referring to Laws LJ’s (now famous) riposte to Lord Carey and his exegesis of the function of the law in relation to religious belief in the McFarlane case, Munby J firmly reasserts the role of the judge in a free society as guaranteeing the legal protection for the right to hold or express beliefs, but not protecting that belief’s substance or content.

The local authority is under a duty to consider a prospective foster carer’s view on sexuality, and this was not a “prying intervention into mere belief. Neither the local authority nor the court is seeking to open windows into people’s souls.” The local authority was entitled to explore the extent to which prospective foster carers’ beliefs may affect their behaviour and their treatment of the child; this was not an irrelevant consideration.  Indeed if it had failed to explore those matters it might very well have found itself in breach of its own guidance and of the National Minimum Standards and the Statutory Guidance.

As for Article 9, the authorities indicate that this provision only provides a qualified right to manifest religious belief and that interferences in the sphere of employment and analogous spheres are readily found to be justified (Sahin v Turkey (2005) 44EHRR 99 ). If the local authority’s treatment of the claimants was the result of their expressed antipathy to homosexuality, it would not be because of their religious beliefs  (Ladele v Islington LBC (2009) EWCA Civ 1357). Moreover, the local authority’s treatment of the claimants would not be less favourable than that afforded to other persons who, for reasons other than their religious views, expressed objection to, or disapproval of, homosexuality and same-sex relationships contrary to the National Minimum Standards and the authority’s various policies. Compliance with anti-discrimination legislation prohibiting sexual orientation discrimination and with the local authority’s equal opportunities policies to the same effect would justify any indirect discrimination.

Munby J found the Wednesbury unreasonableness claim “utterly unarguable”:  even though he did not go so far as to accept the literature produced by the intervening Equality Commission as evidence of the disadvantages suffered by children who are doubtful of their sexual orientation in antipathetic surroundings , he found that in the light of such literature,

together with the steer given by the National Minimum Standards, it cannot be said that an examination of the attitudes to homosexuality and same-sex relationships of a person who has applied to be a foster carer is Wednesbury unreasonable.The attitudes of potential foster carers to sexuality were relevant when considering an application for local authority approval.

The Court refused to issue a declaration on the grounds that it could not exercise its jurisdiction on so “abstract” a question:

The defendant has taken no decision and there is likely to be a broad range of factual contexts for reaching a particular decision, the legality of which will be highly fact-sensitive. Moreover, the parties have: (a) been unable to agree on an appropriately focused question for the court to address, (b) each identified questions that do not raise a question of law that can be answered with anything approaching a simple ‘yes’ or ‘no’, and (c) furnished the court with no evidence.

Permission to apply for judicial review refused.

Comment

Although there was no evidence to support it, the court was prepared to accept the defendant’s claim that it had approved foster carers who are very committed Christians who hold to “orthodox beliefs” and devout Muslim carers who are similarly committed to their religion, but who in both instances are able to value diversity notwithstanding their strongly held religious beliefs. Maybe the claimants in this case were too honest about their views, and the way they spoke out was fatal to their application to be considered for fostering. Because the truth is that broadmindedness – as to sexual orientation, marriage, the status of women, blasphemy, anything – is the opposite of what religious conviction enacts and requires. Religious conviction requires narrowmindedness in that it entails of following the straight and narrow way.  On the other hand a liberal society requires broadmindedness, and secular laws to uphold it . The law must be neutral as to the competing claims of religious orthodoxy and equality, but it is misleading and illusory to insist that there is no tension here. The submissions by claimants’ Counsel may have been written off by the court as a “travesty of the reality” (paragraph 34) but there is more than a kernel of truth in his arguments. Take for example his submission that the defendant’s policy on suitable foster carers amounts to an

irrebuttable presumption that no Christian (or faith adherent) can provide a suitable home to a child in need of a temporary placement

It is hard to see how committed adherents to those religions which frown on homosexuality will ever be eligible, unless applicants lie about their beliefs. In other words once it is accepted that antipathy to homosexuality renders a couple unfit for fostering, this is an a priori judgment that local authorities may make – indeed are bound by law to make – in every case. There is no such thing as neutrality in such circumstances. What the relevant law and policy guidance requires, in other words, is that issues of civic concern (such as adoption and fostering) can only be discussed by persons who have left their religious convictions at home or have checked them at the door.

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