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Adoption charity considers fifth appeal over same sex ruling

No 'weighty or convincing reasons' why charity should be allowed to discriminate

5 November 2012

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There are no “weighty or convincing reasons” why a Catholic adoption charity should be allowed to discriminate against homosexual couples, the Upper Tribunal has ruled.

It was Catholic Care’s fourth appeal in an attempt to amend its objects so that it can continue to restrict its adoption services to heterosexual couples.

The Charity Tribunal ruled last year that the exemption for charities under section 193 of the Equality Act 2010 did not apply in this case.

A spokesman for Catholic Care said this morning that no decision had been made on the latest ruling and the charity’s trustees would meet, probably by the end of this month, to discuss all the options.

“It is still open for appeal,” he added.

Delivering judgment in Catholic Care (Diocese of Leeds) v Charity Commission (appeal no. FTC/52/2011) Mr Justice Sales said that if the charity could show there was a “significant prospect” that more children would be placed in adoption if it was allowed to discriminate, that would be an argument for allowing it to proceed.

However, Sales J said that the First Tier Tribunal’s decision to reject the claim “cannot be faulted”.

He went on: “There is not a ‘material probability’ that the number of children placed in adoptive care would be increased by the charity’s work.

“There is a surplus of potential adoptive parents available through voluntary adoption agencies and the children who might potentially have found adoptive parents via the charity’s adoption service, with the relevant local authority paying an inter-agency fee to the charity, are likely to be placed elsewhere with the fee being paid to another voluntary adoption agency.”

Sales J said that although the charity claimed that its adoption service was of good quality, there was nothing to indicate that services provided by other voluntary adoption agencies “would be inadequate or that such agencies would be unable to find good numbers of suitable adoptive parents”.

The judge described as “vague and unspecific” a suggestion by Bishop Roche, the former bishop of Leeds, that, if permitted to discriminate against homosexuals, Catholic Care might be able to raise enough money to offer adoptive parents without charging local authorities a fee.

“The Roman Catholic Church is not a national body authorised by the democratic political process to establish public rules or laws binding the whole country,” he said.

“Unlike the national authorities, it is not ‘best placed to assess and respond to the needs of society’ as a whole. It is a private institution distinct from the state, representing only the views of its adherents and incapable of setting general standards of public policy.

“The legal context in which the charity comes before the Tribunal is one in which the national authorities, in particular parliament, have established a very clear framework of equality law which makes discrimination on grounds of sexual orientation unlawful.”

Mr Justice Sales criticised some aspects of the Charity Commission’s case.

He said it was wrong for the Commission’s counsel to suggest that “donors motivated by respect for Catholic doctrine” should be equated with “racist bigots”.

The judge also rejected as “unduly speculative” the first tier tribunal’s conclusion that there would be a risk of loss of suitable same sex couples to the adoption system as a whole by subjecting them to the “particularly demeaning experience” of discrimination on the grounds of sexual orientation.

However, Sales J said these criticisms did not affect the outcome of the appeal.

Catholic Care lost its first appeal, against a decision by the Charity Commission, in the summer of 2009. The following March, the charity won an appeal to the High Court, which ordered the Commission to reconsider its earlier ruling.

The Charity Commission confirmed that original ruling in August 2010, and Catholic Care’s appeal to the Charity Tribunal failed the following year.

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