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Ruling on Catholic adoption agency "will not open the floodgates"

23 March 2010

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

The National Secular Society said the ruling could lead to a “tidal wave” of similar challenges.

Benjamin James, partner at Bircham Dyson Bell, acted for Catholic Care. “I don’t think it opens the floodgates,” he said. “The judgment is very tightly drafted. What it says is that there have to been weighty reasons when you’re balancing the benefits to children against the disadvantages to gay couples.”

James said it would be almost impossible for the agency to find funding if it had to make services available to gay couples.

He said that Catholic Care would provide further evidence to the Charity Commission in a few weeks, and the earliest the commission would make a decision was at its meeting in May.

“We are asking for a very narrow exemption,” James said. “Catholic Care does not restrict any of its other services, even fostering, because fostering does not create a family unit.”

The Charity Tribunal rejected a challenge by Catholic Care last summer to a Charity Commission decision that the charity 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 said the trustees of Catholic Care believed it was outside the tenets of the Roman Catholic Church to provide adoption services to gay couples.

Briggs J said the charity in fact only provided services to married, heterosexual 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.

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 “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 “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.

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