Religious fostering service given permission on one ground to appeal rejection of judicial review challenge over Ofsted report

A High Court judge has given a Christian fostering service permission to appeal on one ground following his dismissal earlier this month of its judicial review challenge to a report by Ofsted.

The report had found that Cornerstone (North East) Adoption And Fostering Service’s (Cornerstone’s) policy of accepting only heterosexual evangelical Christians as the potential carers of fostered children breached the Equality Act 2010 and the Human Rights Act 1998, and required that Cornerstone alter the policy.

In his ruling of 7 July, Cornerstone (North East) Adoption And Fostering Service Ltd, R (On the Application Of) v The Office for Standards In Education, Children's Services And Skills [2020] EWHC 1679, Julian Knowles J’s principal conclusions were:

“a. Ofsted did not dispute that Cornerstone's recruitment policy is not unlawfully discriminatory under the EA 2010 on the grounds of religious belief. Cornerstone is permitted to exclusively recruit evangelical Christian carers because of the exemption in [2] to Sch 23 to the EA 2010 for religious organisations.

b. Cornerstone's recruitment policy is unlawfully discriminatory in breach of s 29(1) of the EA 2010, alternatively, s 29(6), in both cases read with s 13 and/or s 19, insofar as it requires applicants to refrain from 'homosexual behaviour'. The policy unlawfully discriminates, directly or indirectly, against gay men and lesbians. The disapplication of the general exemption in [2(3)] of Sch 23 provided by [2(10)] applies because Cornerstone performs functions on behalf of public authorities pursuant to contract.

c. Cornerstone's recruitment policy does not violate Article 14 of the Convention read with Article 8, as given effect by s 6 of the HRA 1998, insofar as it requires carer applicants to be evangelical Christians.

d. Cornerstone's recruitment policy does violate Article 14 of the Convention read with Article 8, as given effect by s 6 of the HRA 1998, insofar as it requires carer applicants to be heterosexual. Its policy unlawfully discriminates against gay men and lesbians.

e. Ofsted's Report does not violate Cornerstone's Convention rights under Articles 9 – 11 and Article 14 of the Convention.

f. Ofsted's Report is not unlawful as being in breach of SCCIF [Social Care Common Inspection Framework (SCCIF): Independent Fostering Agencies].”

In its application for permission to appeal, Cornerstone claimed the judge's ruling of 7 July was vitiated by errors of law. The fostering service listed 11 suggested grounds of appeal, leaving Julian Knowles J to comment that “it is no exaggeration to say that virtually every aspect of my judgment is challenged”.

Cornerstone also argued that the judge was wrong not to quash the Ofsted report in toto, as opposed to applying a 'blue pencil' to the part of the report which he found to be unlawful.

Further, Cornerstone applied for a stay of the order pursuant to CPR r 52.16(a) pending the determination of the application. It argued that there would be irremediable consequences in the absence of a stay.

In response Ofsted argued that permission should be refused and a stay should be refused. It argued that none of the twelve grounds of appeal advanced by Cornerstone had a realistic prospect of success. It said that the judge dealt correctly with the matters the fostering service now raised.

In Cornerstone (North East) Adoption And Fostering Service Ltd (t/a Cornerstone), R (On the Application Of) v The Office for Education, Children's Services And Skills [2020] EWHC 2031 (Admin)

Mr Justice Julian Knowles said: “I have taken time to carefully consider the competing arguments advanced by the parties. It seems to me that my conclusions that Cornerstone's recruitment policy discriminates directly and/or indirectly against gay men and lesbians, and that such treatment is not justifiable as being a proportionate way of achieving a legitimate aim, and that this conclusion does not breach Cornerstone's Convention rights (ie, sub-paragraphs (3), (4), (9) and (10) of [1.6] of Cornerstone's application) raise issues that are of sufficiently general importance to warrant consideration by the Court of Appeal.

“I am not persuaded that I am necessarily arguably wrong, but it seems to me there is good reason for these significant issues to be considered by the Court of Appeal. I therefore grant permission in relation to these grounds of appeal under CPR r 52.6(1)(b) (some other compelling reason for an appeal to be heard).”

The judge refused permission on all the other grounds of appeal.

He also refused the application for a stay. “The case law (summarised in the White Book) makes clear that the general rule is that a stay will not be granted, and that it is for the applicant to show irremediable harm. Temporary inconvenience will not suffice.”

The judge said he agreed with Ofsted's submission that Cornerstone had been found to be operating a discriminatory recruitment policy. “That is a serious matter and should not be left unremedied. It is open to Cornerstone to revise the Code of Practice to make clear that married same-sex couples will be accepted as foster carers. If the appeal is successful, the current version can be reinstated.”

See also: Religion and fostering – Aileen McColgan QC of 11KBW analyses the original ruling.