Foster carers and manifestation of religious belief

To what extent does the law afford protection to couples looking to foster children, in circumstances where that couple possesses (and vocalises) strong religious beliefs? This was the issue for consideration before Turner J, who heard the appeal in Smith v Manchester City Council [2025] EWHC 2987 (KB) in the King’s Bench Division of the High Court. Judgment was handed down on 18 November 2025.

Background

The Claimants were a married couple with strong evangelical Christian beliefs who wished to foster children. To that end, they approached Manchester City Council (“the Council”) and made an application.

Their foster application failed at the first stage of the assessment of their suitability. One reason given for the rejection was that the social workers responsible for the assessment had concluded that the couple would find it “quite difficult to be proactive in promoting a diverse view of the world” ([1]). Of particular concern was that the Claimants believed that homosexuality and abortion were wrong and they held gender-critical beliefs. It was a distinct possibility that the Claimants might express such views to any children entrusted to their care. Indeed, the Claimants had “indicated what they were likely to say and do in the clearest of terms” ([89]).

Core Claims

The Claimants challenged the Council’s decision by issuing proceedings in the Manchester County Court. They brought a claim under section 7(1) HRA 1998, alleging a breach of Articles 9 and 10 ECHR, as well as under section 29(6) of the Equality Act 2010.

As committed Evangelical Christians, the Claimants’ beliefs were expressly pleaded to include ([8]):

“a. the Christian religion;

b. Belief in the binary nature of men and women and therefore a lack of belief in ‘gender fluidity’ and a lack of belief that a person can change their biological sex/gender. Although it is recognised that a significant number of people, including children, will suffer from Gender Dysphoria and have differing sexual orientations;

c. Belief in marriage as a divinely instituted life-long union between one man and one woman;

d. A belief in the truth of the Bible, and in particular Genesis 1 v 27: “God created man in His own image, in the image of God He created him; male and female He created them” and the affirmation of this by the Lord Jesus Christ in Mark 10 v 6 “But from the beginning of the creation, God made them male and female.”;

e. A belief that although the Claimants may disagree with persons from different faiths and/or sexual minority lifestyles and/or persons choosing to transition their gender, they must be loving and show love to such individuals and not be judgmental to such persons;

f. A belief in sanctity of life from conception to natural death, and opposition to abortion;

g. Lack of belief in ‘diversity’, understood as an ethical requirement to promote and celebrate a wide variety of faiths, sexual lifestyles, gender identities, and life choices;

h. The Christian duty to bear witness in words and deeds.”

HHJ Sephton KC in the County Court found that the relevant legal framework (inter alia, section 22 of the Children Act 1989 and the Fostering Services (England) Regulations 2011) taken together with the Secretary of State’s National Minimum Standards and Guidance, must be taken into account in his proportionality assessment. In summary, he found that (at [52]):

• Paragraphs 3.43 and 3.44 of the Secretary of State’s Guidance on Fostering Services were directed to the protection of children’s health and their rights and freedoms and were consistent with the National Minimum Standards for fostering services.
• Regard must be had to the fact that it is recognised that many prospective foster children will have low self-worth.
• Children may be allocated to foster carers at short notice which might preclude any prior discussion of that child’s identity.
• A child fostered at a young age may only later identify as being homosexual or transgender.
• The objective of the fostering regime was to promote the welfare of foster children, with an emphasis on diversity.
• Less restrictive measures could not have been taken.
• A fair balance had been struck between the rights of the individual and the interests of the community

It was held that although the Claimants’ Article 9 rights were engaged and they had been interfered with, that interference was justified. Article 10 was not engaged; this was a case about the manifestation of the Claimants’ beliefs and not about freedom of thought. The Claimants’ claim for direct discrimination also failed, and the claim was dismissed [50].

Judgment 

The case was dismissed on appeal to the High Court. It was observed that the central issue was whether HHJ Sephton KC was right to conclude that the Article 9 interference was justified.

Turner J reviewed the Strasbourg case law relating to Article 9 and proportionality, as well as to sections 10 and 13 of the Equality Act 2010. He first sought to address the question as to the proper approach of an appellate court in the assessment of proportionality ([64(i)-(iii)]). The Claimants’ ground 4 challenge (which took up the majority of the judgment) was that the judge had erred in his approach to the Bank Mellat analysis (more specifically, the third criterion) by ruling that the “measures” in the instant case were the “legal framework for fostering, not how those measures are applied in an individual case”. The court agreed that there was “some merit” in the Claimants’ contention that the court’s focus should have been on the measures taken by the Council acting within the scope of the legal framework: and not on the content of that framework.

Turner J found that the court below had given additional justification for its findings on the application of the third Bank Mellat criterion and went on to consider the appropriate standard of review. His analysis on this issue stemmed from the recent Supreme Court case of Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30 (“Shvidler”), for which judgment was handed down subsequent to the hearing of the present appeal. The parties were invited to draft further written submissions in light of that decision. Therein, the Supreme Court analysed the standard of review at considerable length, observing that a "fresh determination" or "assessment" approach (as opposed to a mere review on the basis only that the judgment below was “wrong in the narrow sense”) would be more appropriate in circumstances where it is “important” that the appellate court should give its own opinion, rather than defer to the assessment of the first instance judge. The former approach is likely to apply to situations where “the decision will provide guidance for other cases or where the subject matter has major social or political significance”, and “where matters of general principle are in issue or the question concerns the Convention compatibility and proportionality of general rules set out in legislation” (Shvidler at [142]-[144], [147]).

In rejecting the “fresh determination” approach, Turner J noted that: there was no public law challenge to the content and Convention compatibility of the general law applicable; the decision below was reached after hearing evidence from witnesses detailing their individual stances which were unique to the case; no divergent strands of authority had emerged in the lower courts giving rise to any need to resolve differences between them; it might be assumed that the “broader Shvidler approach” is deployed less frequently in the High Court than by higher appellate courts; and the absence of evidence relating to the practicability of alternative proportionality options which may be deployed in future similar cases diminished the attraction of providing Shvidler style guidance ([70]-[74]). Nevertheless, Turner J proceeded to consider the position he would have reached had he applied the more stringent analysis in Shvidler in any event ([77]).

The principles underlying Turner J’s review of proportionality can be summarised as follows:  

• On the facts of the instant case, the examination of attitudes to homosexuality and same sex relationships of a person who has applied to be a foster carer was not unreasonable. This proposition was supported by reference to the case of Johns v Derby City Council [2011] EWHC 375 (Admin) ([76]).
• The court “is bound to be more circumspect” in applying Bank Mellat where the justifications are “inextricably bound up” with children’s welfare. The welfare of the child is the paramount consideration ([78(iii)]).
• Although there will be cases in which the manifestation of the religion of potential foster parents may be seen as being of positive benefit to children by way (for example, by providing consistency and continuity with the faith in which they have hitherto been brought up) local authorities and other agencies must remain vigilant to consider any ways in which the manifestation of the religious beliefs of particular prospective foster parents may affect the welfare of the child ([78(iv)]).
• The court must afford due deference to the expertise and experience of the social workers exercising their professional judgment ([78(v)]).

Finally, in evaluating the challenge relating to the direct discrimination claim under the Equality Act 2010, Turner J held that the factor “of central importance” was the way in which the Claimants would be liable to manifest their beliefs in the context of their relationship with the foster children entrusted to their care. Having regard to Higgs v Farmor’s School [2025] EWCA Civ and Page v NHS Trust Development Authority [2021] EWCA Civ 255, the Council’s response was an objectively justifiable response to something “inappropriate” in the way in which the Claimants’ belief was manifested [111]. This was the case notwithstanding the fact that the conduct was not past, but rather related to foreseeable future conduct ([112]).

Comment

This judgment provides interested readers and relevant practitioners with a useful starting point as to how to approach proportionality reviews. It may be wise that, as in this case, the High Court fortifies its judgments against future challenges by considering Shvidler style guidance in the alternative. Overall, the decision offers no huge surprises, and the judgment appears to be rooted firmly in the case’s particular facts. It is notable, in that regard, that Mr Smith had “freely and honestly” stated in his evidence that he would tell any future foster child that being gay was a sin in the event that they “came out” in his care ([88]).

Georgina Pein is a probationary tenant at 1 Crown Office Row. This article first appeared on the set’s UK Human Rights Blog.