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Charity Tribunal challenges bishop’s evidence in Catholic Care adoption ruling

3 May 2011

The Charity Tribunal has challenged evidence given by a Catholic bishop over the impact on a charity of allowing children to be adopted by gay couples.

Rejecting Catholic Care’s appeal to amend its objects so that it could continue to restrict adoption services to heterosexuals, principal judge Alison McKenna said the parties agreed that “religious conviction alone could not in law provide a justification”.

The latest defeat for the charity follows two rulings against it by the Charity Commission, in 2009 and 2010. The commission ruled that the proposed discrimination was not a proportionate means of achieving a legitimate aim within the meaning of article 14 of the ECHR.

Delivering the decision of the Charity Tribunal in Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales, McKenna said the tribunal agreed with the commission’s approach.

She said the commission’s decision took into account, “appropriately in the tribunal’s view”, the European authorities on the disadvantage to society arising from sexual orientation discrimination and the requirement for “particularly weighty reasons” to permit it.

McKenna said that since the commission’s decision the law had changed, so that section 193 of the Equality Act 2010 applied, instead of the Equality Act (Sexual Orientation) Regulations 2007.

She said the tribunal heard evidence from the Right Reverend Arthur Roche, Catholic bishop of Leeds and ex-officio chairman of Catholic Care, that the church’s teaching was that a full sexual union without marriage was unacceptable “so that adoption services could not be offered by the charity to unmarried heterosexual couples or to same-sex couples”.

McKenna said Bishop Roche did not think it “generally acceptable for a single person to adopt, although he was aware that the charity had in the past placed a child for adoption with a single adopter.

“He said he could not explain why the charity’s website apparently suggested that single adopters were able to use the charity’s services and said that while he was involved in setting the charity’s policies, he did not necessarily know what went onto its website.”

McKenna exposed a similar apparent contradiction in the area of fostering.

“The charity’s proposed objects (as currently drafted) did not seek to discriminate against same-sex foster carers,” she said.

“The commission had been informed by the charity during the internal review process that the charity did not object to placing children with same-sex foster carers because this did not involve the creation of a family.”

McKenna said Bishop Roche told the tribunal he thought the receipt of donations and the “promotion of a Nazarene family structure” went hand in hand.

However, McKenna referred to a letter sent to the Charity Commission by the Roman Catholic Caucus of the Lesbian and Gay Christian Movement which stated that other Catholic adoption agencies, which had changed their way of working to comply with equalities legislation, had continued to attract support from Catholics, including bishops.

“The tribunal does not of course have to decide whether Catholics are required by their faith to support the charity’s stance or not,” McKenna said.

“The tribunal does, however, conclude from the evidence before it that there is a wide range of opinion among donating Catholics and that it is in consequence impossible for the tribunal to conclude, as it was being asked to do, that the charity’s voluntary income would inevitably be lost were it to operate an open adoption service.”

McKenna said the tribunal was not satisfied that permanent closure of the charity’s adoption service on financial grounds was an “inevitable consequence” of its inability to discriminate.

The principal judge, with tribunal members Helen Carter and Margaret Hyde, dismissed the charity’s appeal and concluded that changes to its objects would not be permitted.

Benjamin James, partner at Bircham Dyson Bell, acted for Catholic Care.

He said the charity was considering whether to appeal on a point of law to the Upper Tribunal.

Responding to comments in the decision about evidence given by Bishop Roche, he said Catholic Care did not undertake fostering and had not done since 1995.

James agreed that the charity said it would consider adoption by single parents, but only one child had been placed in that way over a long period.

“We went all the way back to 1947 and could not find another one,” he said.

He blamed equalities laws for the closure of two Catholic adoption agencies, including Westminster Children’s Society.

“Inability to discriminate will result in the closure of Catholic Care’s adoption service through lack of funding,” he added.

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Discrimination Charities Wills, Trusts & Probate