Foster carers' views on sexuality are relevant, High Court rules

The views of prospective foster carers on sexuality are relevant and should be considered by councils to the extent that they affect the treatment of children, the High Court has ruled.

Lord Justice Munby was giving judgment in a case brought by Eunice and Owen Johns, who claimed that Derby City Council refused to let them foster children because of their christian beliefs.

The couple argued that their beliefs were not a legitimate fostering concern, that they were being discriminated against under article 9 of the ECHR and that the council's decision to exclude them was unreasonable under the Wednesbury principle.

Delivering judgment in R (on the application of Johns) v Derby City Council [2011] EWHC 375 (Admin), Munby LJ said it was 'quite impossible' to argue that a council could not consider views on sexuality when 'it might well affect their behaviour as foster carers'.

He went on: 'This is not a prying intervention into mere belief. Neither the local authority nor the court is seeking to open windows into people's souls.

'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.'

On the question of whether the Johns were the victims of religious discrimination, Munby LJ said, following the decisions of the Court of Appeal in Ladele and McFarlane, that the way their application was treated was because of their stance on sexual orientation and not because of their religious belief.

'Moreover, the defendant's treatment of the claimants would not be less favourable than that afforded other persons who, for reasons other than the religious views of the claimants, expressed objection to or disapproval of homosexuality and same-sex relationships contrary to the national minimum standards for fostering and the defendant's various policies.'

Munby LJ said article 9 of the ECHR provided only a 'qualified' right to freedom of religious belief and interferences in employment and other spheres were 'readily found to be justified', even where members of a religious group found it difficult to comply.

The lord justice said there was no right to foster and the claimants voluntarily applied for approval and agreed to subject themselves to the national minimum standards for fostering.

Munby LJ said the arguments put forward by the Johns based on the Wednesbury principle were 'utterly unarguable'.

He said literature submitted by the Equality and Human Rights Commission, which intervened in the case, showed that a child who was homosexual or doubtful about his orientation 'may experience isolation and fear of discovery if their carer is antipathetic to or disapproves of homosexuality or same-sex relationships.

'The material also indicates that there is support in the literature for the view that those who hide their sexual orientation or find it difficult to 'come out' may have more health problems and in particular mental health problems.

'Whether those views are 'right' or 'wrong', whether the claimants or the commission have the preponderance of expert opinion on their side, is not the point '“ and it is not a matter on which we express any views.

'But in the light of such literature, together with the steer given by the national minimum standards, it cannot be said that an examination of the attitudes to homosexuality and same-sex relationships of a person who has applied to be a foster carer is Wednesbury unreasonable.'

Lord Justice Munby rejected the Johns' application for judicial review and made no order. Mr Justice Beatson contributed to the judgment.

Andrea Williams, director of the Christian Legal Centre, said the Johns were a 'mild-mannered, ordinary christian couple' yet may never be able to foster children again.

'They were willing to love a child regardless of sexual orientation, but not willing to tell a young child that practising homosexuality was a positive thing'.