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Catholic Care wins gay adoption challenge

17 March 2010

Catholic Care, the charity providing adoption services to the Catholic community, has succeeded in a last-ditch attempt at the High Court to escape regulations which could prevent it from excluding gay couples.

The Equality Act (Sexual Orientation) Regulations 2007 made it unlawful for anyone to discriminate on the grounds of sexual orientation in the provision of goods or services, subject to important exceptions.

Last summer, Catholic Care lost its challenge in the Charity Tribunal to a Charity Commission decision that it should not be allowed to vary its objects to allow the exclusion.

Giving judgment in Catholic Care (Leeds) v The Charity Commission for England and Wales [2010] EWHC 520 (Ch), Mr Justice Briggs gave the commission directions to reconsider its decision.

"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," said The Right Reverend Arthur Roche, Bishop of Leeds, in a statement.

Briggs J said Catholic Care's trustees believed it was outside the tenets of the Roman Catholic Church to provide adoption services to gay couples. He also noted that the charity in fact only provided services to married, heterosexual couples.

Briggs J said Catholic Care attempted to take advantage of an exception in favour of charities, under regulation 18, which allowed them to limit services to those of a particular sexual orientation if it was in “pursuance of a charitable instrument”, in this case a memorandum of association.

Catholic Care wanted to modify its objects to make it clear that its services were limited to heterosexuals in accordance with Church teaching.

Briggs J said that neither the Charity Commission nor the tribunal thought it necessary to consider whether the “proposed differential treatment” could be justified under article 14 ECHR (freedom from discrimination) on the grounds of public benefit.

However, the Charity Tribunal did express obiter a view that, if such an exercise had been required, Catholic Care would “probably have failed to demonstrate a sufficient benefit”.

Mr Justice Briggs said he had been “driven to neither extreme” as to whether adoption of the proposed objects was justifiable or not justifiable.

He said the argument that that “differential treatment which is not founded on the special needs either of the proposed adoptive parents or the children, or upon any other class of justification recognised by the developing jurisprudence on article 14, must be discriminatory commands real respect.

“On the other hand, the very unusual predicament of Catholic Care, its status as an adoption agency of last resort for ‘hard to place’ children and 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.”

Briggs J ordered that the case be referred back to the Charity Commission for it to reconsider the question of justification.

The Bishop of Leeds said: “The court has confirmed that Catholic Care was correct in its reading of the Equality Act (Sexual Orientation) Regulations 2007 and has agreed with us that regulation 18 can apply to any charity subject to it being in the public interest.

“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 added that Catholic Care has been providing specialist adoption services for over 100 years.

A spokesman for the British Humanist Association expressed his “dismay” at the decision.

“We entirely support the Charity Commission in seeking to secure rights for lesbian and gay people in accordance with what our national Parliament has decided and what public opinion supports,” he said.

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Company, Consumer, and Contract Financial services & Tax Discrimination Charities