Independent fostering agency loses appeal over lawfulness of only accepting heterosexual evangelical Christians as potential carers

The Court of Appeal has dismissed an appeal by an independent fostering agency over whether it is lawful for it only to accept heterosexual evangelical Christians as potential carers.

Cornerstone (North East) Adoption and Fostering Services ("Cornerstone") recruits and supports carers for children in local authority care who need to be fostered and in some cases adopted.

Ofsted considered that it was unlawful for Cornerstone only to accept heterosexual evangelical Christians as potential carers. In a report issued in draft on 12 June 2019, it assessed the effectiveness of Cornerstone's leaders and managers as 'Inadequate'.

This was in large measure because Ofsted considered that, by only recruiting foster carers who were practising Christian carers in opposite sex marriages, Cornerstone's recruitment and selection process for foster carers did not comply with the requirements of the Equality Act 2010 and the Human Rights Act 1998.

It asserted that the policy contravened both enactments as being discriminatory on the grounds of sexual orientation and that it contravened the HRA 1998 on the grounds of religion or belief. It required Cornerstone, by 31 July 2019, not to discriminate in its recruitment of foster carers in either respect.

On 19 June 2019, Cornerstone issued judicial review proceedings, seeking a declaration that Ofsted's finding that its recruitment policy contravened the EA 2010 or the HRA 1998 was unfounded, an order quashing the requirement in the draft report, and damages.

In a judgment dated 7 July 2020, reported as R (on the application of Cornerstone (North East) Adoption and Fostering Service Ltd v Office for Standards in Education, Children's Services and Skills [2020] EWHC 1679 (Admin), Mr Justice Julian Knowles made these findings:

(1) Cornerstone's recruitment policy was not unlawfully discriminatory under either the EA 2010 or the HRA 1998 on the grounds of religious belief because the exception in paragraph 2 of Schedule 23 EA 2010 applied.

(2) Cornerstone's policy of requiring applicants to refrain from homosexual behaviour unlawfully discriminated against gay men and lesbians under the EA 2010, and in requiring applicants to be heterosexual it unlawfully discriminated against gay men and lesbians under the HRA 1998.

(3) Ofsted's report did not violate Cornerstone's rights under Articles 9-11 and 14 of the European Convention on Human Rights,

(4) Ofsted's report was not unlawful as being in breach of its guidance on the inspection of IFAs, entitled 'Social Care Common Inspection Framework: Independent Fostering Agencies' (February 2017).

Mr Justice Julian Knowles therefore dismissed Cornerstone's claim and he ordered it to pay 75% of Ofsted's costs.

On 11 August 2020, Ofsted published a version of the June 2019 report that had been amended to reflect the aspects of Cornerstone's claim that had been upheld. Ofsted did not appeal from the Judge's finding in relation to religious discrimination.

Cornerstone appealed on 12 grounds. The five grounds for which permission was in due course granted were:

• Ground 1: the judge erred in concluding that Ofsted properly had – and in all the circumstances properly exercised its – power and jurisdiction to require Cornerstone to disapply or modify its recruitment policy for foster carers as contained in its charitable instrument, notwithstanding the finding by the Charity Commission – exercising the specific mandate afforded to it by Parliament under Section 193 EA 2010 – that when acting in pursuance of this charitable instrument, Cornerstone did not contravene the EA 2010.
• Ground 3: the judge erred in concluding that Cornerstone's recruitment, selection and appointment of Cornerstone foster carers in accordance with its policy constituted direct discrimination because of sexual orientation, within the meaning of s. 13(1) EA 2010.
• Ground 4: the judge erred in concluding that Cornerstone's recruitment, selection and appointment of Cornerstone foster carers in accordance with its policy is not a proportionate means of achieving a legitimate aim and is therefore unlawful indirect discrimination, within the meaning of s. 19(2)(d) EA 2010, on grounds of sexual orientation.
• Ground 9: the judge erred in holding that when it recruits, selects and appoints Cornerstone foster carers in accordance with its policy, Cornerstone acts incompatibly with the Convention right under Art. 14 (read with Art. 8) of hypothetical gay or lesbian evangelical Christians who might wish to become Cornerstone foster carers; and
• Ground 10: the judge erred in holding that Ofsted's requirement that Cornerstone disapply or modify its recruitment policy for foster carers as contained in its charitable instrument was compatible with respect for the Convention rights under Arts. 9-11 and/or 14 which Cornerstone could pray in aid as a religious organisation.

Permission was refused in relation to a further seven grounds of appeal.

In Cornerstone (North East) Adoption and Fostering Services Ltd, R. (On The Application Of) v HM Chief Inspector of Education, Children's Services and Skills (OFSTED) [2021] EWHC 2544 the Court of Appeal dismissed Cornerstone’s appeal.

Lord Justice Peter Jackson said he accepted that some of Cornerstone's arguments deserved to be placed in the balance in its favour on the question of justification.

“In consequence, I would hold that the real issue arose at stage four of Bank Mellat: whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, the former outweighs the latter.”

“As to that, I have reached the clear conclusion that the Judge was right to find that the different treatment arising under Cornerstone's recruitment policy was not justified, either through the lens of the EA 2010 or of the HRA 1998.”

The Court of Appeal judge said his reasons could be shortly stated: “The detrimental impact on society and on individuals of discrimination on the ground of sexual orientation has led the law to set a demanding standard of justification. As Baroness Hale said in Preddy at [53], we should not underestimate the continuing legacy of centuries of discrimination against homosexuals and, adapting her words to this case, we should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.

“Further, and critically, the ordinary requirement that such discrimination requires weighty reasons is heavily underscored by statute in the case of a religious organisation that provides services to the public. The Judge was right to accord very considerable significance to this…., and to require nothing less than clear evidence to prove that the discriminatory policy was justified.”

Lord Justice Peter Jackson said that, in the end, although there were matters that the judge should, he thought, have placed on its side of the scales, “the simple fact is that this was Cornerstone's claim and its evidence, taken at its highest, fell short of discharging the burden upon it”.

Statements from Cornerstone’s co-founder and CEO had set out the organisation's perspective, and there could be no doubting the value of its work or the sincerity of its motives, he acknowledged.

“However, in order to justify a policy of this nature, it needed to provide credible evidence that there would otherwise be a seriously detrimental impact on carers and children. The evidence it actually advanced did not go beyond the level of general assertion. In consequence, the Judge understandably found it impossible to conclude that the ability to discriminate against homosexuals was a matter of such importance to Cornerstone that, without it, the wellbeing of current and future carers and children would be seriously affected.”

Mr Justice Julian Knowles had been entitled to treat assertions of the impact on carers as being at best inconclusive, and no attempt was made to prove any impact on present or future children.

Lord Justice Peter Jackson said: “In short, while I would not rule out the possibility of an organisation in this position putting up a substantial evidence-based case on justification, Cornerstone simply did not do that, and its claim failed on the facts. In that respect, the outcome mirrors Catholic Care, but the challenge facing Cornerstone was all the greater because of the implications of Schedule 23 EA 2010 for the proportionality assessment.

"Finally, I accept that this it is a distinctive feature of this case, unlike the other decided cases, that the policy in question has been explicitly held not to be unlawful as discrimination on the basis of religious belief.

“As noted....above, that cannot be an answer to the sexual orientation claim, but it was a relevant factor for the court to hold in mind, and I am satisfied from reading the Judgment as a whole that the Judge did so.”

Lord Justice Peter Jackson said: “Accordingly, for reasons that are similar but not identical to those given by the Judge, I conclude that Cornerstone's claim of justification was rightly rejected. Alongside Ground 1, Grounds 3, 4, 9 and 10 must also fail, and I would therefore dismiss the appeal.”

Lady Justice Asplin and Lady Justice Nicola Davies agreed.