Ban on religious couple adopting?.. On the naughty step

26 April 2011 by

Human rights and discrimination law are often criticised in the press. Sometimes the criticisms are justified, but the level of anger which a system of universal rights can generate is sometimes surprising. Unfortunately, some of that anger is caused by inaccurate reporting of judgments.

In yesterday’s Telegraph online, Cristina Odone blogged on a recent “scandal” relating to Mr Justice Mostyn’s request to carry out his responsibilities as a duty judge in Tenerife. I will leave comment on the main story to Charon QC, save to say that Odone uses the story as a means of judge-bashing, a sport which is currently popular in the press and even with politicians. “Who”, asks Odone channeling public anger, “do these judges think they are?” Moreover,

A series of judgments have left law-abiding citizens bewildered, as when Lord Justice Munby and Mr Justice Beatson ruled that Mr and Mrs Johns, a Christian couple, should be banned from fostering because they regard homosexuality as sinful.

Odone is referring to Johns & Anor, R (on the application of) v Derby City Council & Anor [2011] EWHC 375 (Admin). She is quite wrong that the decision of the court was to ban Mr and Mrs Johns from fostering because they regarded homosexuality as sinful.

Rosalind English has already covered the case in detail, but the basic point was that the local authority in question had made no decision as to the Johns’ suitability to foster, but rather had deferred it. So, Lord Justice Munby had no option to say whether the Johns could foster or not. Instead, he was presented with an “abstract” application supported by no evidence on either side. He reluctantly proceeded on the basis that he had been asked to give general guidance on how the local authority should exercise its judgment when deciding a fostering case.

On whether the attitudes of potential foster carers to sexuality were relevant when considering an application for approval, he ruled that it was

quite impossible to maintain that a local authority is not entitled to consider a prospective foster carer’s views on sexuality, least of all when, as here, it is apparent that the views held, and expressed, by the claimants might well affect their behaviour as foster carers.

This is “not a prying intervention into mere belief” and “Neither the local authority nor the court is seeking to open windows into people’s souls.” Rather,

The local authority is entitled to explore the extent to which prospective foster carers’ beliefs may affect their behaviour, their treatment of a child being fostered by them. In our judgment the local authority was entitled to have regard to these matters; indeed, if the local authority had failed to explore these matters it might very well have found itself in breach of its own guidance and of the National Minimum Standards for Fostering and the Statutory Guidance…

The crucial point is that despite saying that a local authority is entitled to examine how a prospective fosterer’s beliefs on sexuality may affect their treatment of a child – and it seems difficult to see how this could be wrong – he made no order in respect of the Johns. The local authority had made 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“.

Misrepresenting the law in a throwaway comment may seem innocuous but a quick read of the angry comments below Odone’s blog reveals the damage that  her misrepresentation has already done. Judges are unpopular enough without being accused of and criticised for making decisions they didn’t make. As one of the most senior judges Lord Neuberger said in a recent speech on open justice:

Persuasion should be based on truth rather than propaganda. It is one thing to disagree with a judgment, to disagree with a law and to campaign to change the law, but it is another thing to misstate what was said in a judgment, or to misstate the law.

He is right, and for that reason Cristina Odone should be on the legal naughty step. Legal commentator Joshua Rozenberg recently told Legal Week that “the newspapers don’t provide the service they did [in the past]” due to the lack of designated legal correspondents. Presumably, it would be those correspondents who would check over articles which purport to comment on the law.

If the presentation of law in newspaper articles concerns you, the online Press Complaints Commission form is here.

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  1. John Dowdle says:

    Religious fundamentalists like Christian Odone know full well that they are issuing misleading statements on law.
    I am afraid this is a very regrettable import from the USA – like so-called creationism and so-called intelligent design.
    These people are absolutely not committed to the truth.
    If they can use any form of misleading statement to further their cause, they will issue it, regardless of the truth.
    These people feed the gutter press’s agenda, who then indulge in a spot of judge-bashing and human rights bashing, as they believe this helps them to sell papers.
    The street of shame knows no shame when it comes to selling papers and making money. No surprise there !!
    It is a pity that fundamentalist religionists are so committed to lying. You cannot but wonder how they manage to square this with their claims of “religious” morality.
    The only conclusion I can come to is that they are prepared to sacrifice the truth to achieve an intended effect.

  2. Law Think says:

    Absolutely spot on. Odone also got it totally wrong when she had a go at Lady Hale over that domestic violence case and said that she should be able to argue with her husband as much as she wanted! Shameful reporting.

  3. Tara Davison says:

    Judges are often placed in difficult positions and have to juggle different rights. The ‘people’ of the UK are suffering under a burden of 13000+ new criminal offenses in the last 10 years with greater police powers to enter and search their homes and remove their property.

    Council and other local and state organisations also have oppressive powers against ordinary people. If you wander around face book you will find countless cases of people who have had their beloved children removed from them and sold into forced adoption. They rail against the Secret Family Courts who allow their children to be stolen by the State.

    The Proceeds of Crime Act is not restricted to drugs barons it is being used against ordinary business people who’s client may or may not have committed a crime or who themselves may or may not have committed a crime (any of the so called money laundering or fraud crimes) but who before charge can loose their home, their valuables and their business.

    It is now not necessary to have harmed anyone or caused anyone financial loss for ordinary people to loose everything they own and have their lives and reputations decimated.

    Conversely these same ordinary working people are burdened with excessive taxation and suffer burglaries without the police ever catching the suspect. Vandalism to their cars and homes without police stopping the gangs of youths roaming the streets. Parking fines for parking outside of their own homes.

    The people no-longer trust parliament to help them and expect the courts to at least deal with them fairly. Now this trust is braking down because it seems to the people that the Courts are supporting their oppressors, the police, the state and the burglars.

    What is happening is a misunderstanding of the power that judges have. Judges can only interpret the law not make it. Although they do have discretion in some matters. When this discretion is used unwisely then the power a judge has to destroy lives is devastating.

    In these unsettled times the burden is upon judges to use their power wisely and perhaps to explain to the public that they have limited options and can only interpret what parliament intended.

    The people need to consider that Judges are just people, like themselves, who are hampered by their own limited experience of life.

    In my view the people are looking to the Courts and learned Judges for direction and the Judges may need to consider this new responsibility.

  4. Tim says:

    Legal commentator Joshua Rozenberg recently told Legal Week that “the newspapers don’t provide the service they did [in the past]” due to the lack of designated legal correspondents.

    That’s true but I think it goes a bit deeper than that. Some of these papers have a right-wing political agenda and will use propaganda to bring it about. Truth is a casualty of such a process.

  5. Dean says:

    Well this is a first!i have to addmit when i was a child i was taught it was asin bit as i got older i had my own opinuion and therefore it came in as freedom of speech weather or not the judge agrees or not he should still respect freedom of religioun and at the end of the day if they do foster that child which would move to adulthood they would have there own opinuion!!!so i feel that yes people can have ther own views on there belives but dont deprive the couple from having a child on the grounds of there personal belives if so then does this not open an attack on religous freedom,which does come under human rights convention!!!

    1. Pavlos says:

      Owen Johns reportedly said he would try to “turn” a child straight if he/she came to him and said they thought they might be gay.
      Attempting to turn gay people/children straight is not only misguided but it is considered dangerous by all legitimate medical and psychiatric bodies, there is evidence that the process of attempting to change a persons sexual orientation is damaging while there is absolutely no evidence that changing a person or childs sexual orientation is even possible let alone desirable.
      Extreme anti-gay pseudo-religious attitudes imposed on a child who is to all intents and purposes a captive audience would not be in the best interest of any child.

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