Upper Tribunal confirms illegality of Catholic Charity’s ban on same-sex couple adoption

Catholic Care (Diocese of Leeds) v Charity Commission (on appeal to the Upper Tribunal) CA/2010/0007  – read judgment

A private adoption agency could not justify its exclusion of same-sex prospective parents by arguing that this policy would keep open a source of funding that would otherwise dry up and reduce the number of adoption placements.

This was an appeal by the Catholic adoption services agency against the First Tribunal’s confirmation of the decision by the Charity Commission that it was not permitted to amend its constitution so as to permit it to continue its previous practice to refuse to offer its adoption services to same sex couples. Here is our post on the FTT’s ruling, which sets out the facts and arguments in the case. To recap briefly, the charity argued that the adoption of its proposed objects was justified under the general prohibition on discrimination under Article 14 ECHR (and its statutory analogy, Section 193 of the Equality Act).  The legitimate aim it pursued was that of providing suitable adoptive parents for a significant number of children who would otherwise go unprovided for. The Charity maintained that unless it were permitted to discriminate as proposed, it would no longer be able to raise the voluntary income from its supporters on which it relied to run the adoption service, and it would therefore have to close its adoption service permanently on financial grounds. The FTT rejected this submission, holding that though the charity’s aim of increasing adoption placements was a legitimate one, the evidence before it did not show that the increased funding of the agency’s adoption work under the auspices of the Roman Catholic church would “inevitably” lead to the prospect of an increased number of adoptions.

Arguments on appeal

In this appeal the Charity contended that in using the word “inevitably” the FTT had erred in law by applying an unduly stringent test of causation adverse to the Charity. It should simply have asked itself whether it was more likely than not that permitting the Charity to restrict its adoption services to heterosexuals and hence to secure a stream of funding to keep them going would create a prospect of an increased number of adoptions.

The Upper Tribunal (Sales J) did not agree with this criticism of the FTT’s decision. The FTT had found that by reason of the way in which that system operated in practice there was no realistic prospect of increasing adoption placements if the Charity were permitted to do as it wished. In the light of that evidence, the Tribunal reached the conclusion,  “that the legitimate aim identified by the Charity was not in fact one that would be achieved by its proposed method.” (para 30 of the FTT judgment). Even if the Charity’s claim about losing its funding was correct, the FTT  took the view that, following Smith and Grady v UK, the negative attitudes of third parties could not, of itself, provide justification for discrimination on grounds of sexual orientation.

The Charity also submitted that the FTT had erred in the following four ways:

On the evidence, the FTT should have reached an opposite conclusion to the one it did, namely that the pool of potential adopters would be likely to be increased if the Charity were permitted to adopt its proposed mode of operation, and therefore should have concluded that  Re G meant that the Charity’s proposal was properly justified, since it would help children in need, which is to be regarded as a particularly weighty, indeed paramount, consideration;

The availability of adoption services to same sex couples from sources other than the charity had not been offered as a justification in itself for the Charity’s proposal, but was submitted to be a material consideration when conducting the weighing exercise required under the proportionality analysis;

The FTT had misunderstood and misapplied the reasoning of the ECtHR in Smith and Grady v UK. The negative attitudes of third parties (voluntary donors acting under the guidance of the Roman Catholic Church) towards homosexuals was not said to be, in itself, the justification for the proposed discrimination. On the contrary, a desire to promote traditional families and traditional family life is recognised by the ECtHR to be a legitimate and acceptable point of view, and the FTT had failed to recognise this.

Sales J rejected all these submissions and dismissed the appeal.

The Upper Tribunal’s reasoning

The point about the prejudices of third parties and the question of the effect on the pool of adopters was really the same point. If, as a consequence of some people having negative attitudes towards homosexuals, some real detriment to the general public interest might arise unless a practice discriminating against them were adopted, then in principle it is possible under Article 14 and under section 193 of the Equality Act for such a practice to be found to be proportionate to the legitimate aim of preventing that detriment or harm and hence objectively justified.

The approach of the Strasbourg Court in other homosexual discrimination cases was to demand particularly weighty and convincing reasons to justify differential treatment discriminating against homosexuals. What is required is a practical approach, looking to see if there really would be a serious detriment to some aspect of the public interest or legitimate objective if a practice involving such differential treatment were not followed:  EB v France (2008) 47 EHRR 21, para. 91; Karner v Austria (2004) 38 EHRR 24, para. 37; Kozak 20 v Poland (2010) 51 EHRR 16, paras. 92 and 99.

The position is quite different from a situation where a “racist bigot” would withhold their support from a charity on the basis of the colour of its beneficiaries. Such a justification

would involve a gross intrusion upon the values which should be expected to be promoted in the public domain in accordance with the European Convention on Human Rights

On the other hand, where third party donors are motivated by

sincerely held religious beliefs in line with a major tradition in European society such as that represented by the doctrine of the Catholic Church (and particularly where, as here, their activities do not dominate the public sphere in relation to the activity in question – provision of adoption services – which are otherwise widely available to homosexuals and same sex couples)

Such views had “a legitimate place in a pluralist, tolerant and broadminded society”. Nevertheless, even accepting the legitimacy and acceptability of views in favour of promoting traditional family life, it was clear from the Strasbourg authorities that even where a body acts in accordance with such views, if in doing so it discriminates against homosexuals it was still necessary for it to show that there are strong reasons justifying differential treatment. It all turned on the evidence. If the Charity had been able to show that there was a significant prospect that more children would be placed into adoption if it were allowed to discriminate against homosexuals than would otherwise be the case, then the interests of the children who would be so placed would have provided an argument in favour of permitting the Charity to proceed in that way. The Charity had not discharged this evidential burden:

There was evidence before the FTT which entitled it to conclude at para. [50] that, for reasons associated with the operation of the inter-agency fee arrangements, the legitimate aim identified by the Charity would not be achieved by its proposed method.

There is a surplus of potential adoptive parents available through voluntary adoption agencies and the children who might potentially have found adoptive parents via the Charity’s adoption service are likely to be placed with another voluntary adoption agency. The FTT did not misapply Smith and Grady v UK, nor did it fail to recognise that a desire to promote traditional family life is a legitimate point of view in a pluralist democratic society. It did not discount the views of those who might choose to withhold funding for the adoption service if the Charity were not permitted to discriminate against homosexuals out of respect for Church doctrine, but rather sought to assess what might happen in practice. The FTT’s analysis, in Sale J’s view, could not be faulted.
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