Council directly discriminated against couple with Sikh Indian heritage in provision of adoption services, judge rules

The Royal Borough of Windsor & Maidenhead and Adopt Berkshire directly discriminated against a couple of Sikh Indian heritage in the provision of adoption services, on the grounds of race, a County Court judge has ruled.

The claimants, Sandeep and Reena Mander, had spent seven years and numerous attempts at IVF before turning to adoption. They are British citizens. Their parents were all born in India and came here as children or young adults. They identify as part of the wider Sikh community, but are not religious.

The Manders approached Adopt Berkshire, which offered adoption services in a number of Berkshire boroughs at the time, including the Royal Borough where the claimants are resident.

The claimants attended an introductory seminar run by Adopt Berkshire but after initial telephone conversations with a social worker and a home visit, they were told that Adopt Berkshire would not progress their interest in adoption further. In particular they would not be invited to fill in an application for adoption form, called a Registration of Interest form.

Mr and Mrs Mander claimed the social worker told them that this was because:

1. Adopt Berkshire only had white British pre-school children available for adoption;
2. This situation would continue for the foreseeable future;
3. Adopt Berkshire already had a surfeit of white British pre-approved prospective adopters;
4. Priority would be given to white British adopters in the placement of these children as they shared the same background; and
5. The chances of Adopt Berkshire placing a child with Mr and Mrs Mander were therefore remote.

They said the social worker told them not to be discouraged from adopting entirely, as she saw no reason why they would not be good prospective adopters. She also said they should try Adopt Berkshire again in a few years, and consider an international adoption from India.

This account of the conversation was disputed by the social worker. However, it was not disputed that in a letter to the Manders in May 2016, the service manager of Adopt Berkshire wrote to them providing her reasons which were very similar to the those which the claimants said they were given orally by the social worker.

The Manders complained to the council and the Local Government and Social Care Ombudsman. They also got a letter from the then Home Secretary, Theresa May, who was their local MP. They then launched legal proceedings.

Her Honour Judge Davies said it was important to understand that Mr and Mrs Mander’s claim was not that they applied to be approved as adopters but were wrongly or unfairly rejected or discriminated against either during the process of consideration of their application for adoption, or when considering whether to match them to a child.

Mr and Mrs Mander’s case was that the defendants discriminated against them on the basis of their race before they made formal application to adopt, inter alia by refusing to progress them to the ROI/application stage.

Mr and Mrs Mander, who were supported in the litigation by the Equality and Human Rights Commission, claimed for:

1. unlawful direct (alternatively, indirect) discrimination on the grounds of race, in particular on the basis of their national or ethnic origins and/or their colour, contrary to sections 13, 19 and 29 of the Equality Act 2010; and
2. breach of section 7(1) of the Human Rights Act 1998 for breach of section 6(1) of the HRA and Schedule 1, Articles 8 (right to respect of private and family life), 12 (right to marriage, including the right to found a family) and 14 (prohibition on discrimination) of the Convention for the Protection of Human Rights and Fundamental Freedoms.

In fact the claimants did not press the claim for indirect discrimination, or for breach of Article 8 of the Convention, at trial.

The Manders sought:

• general damages for injury to feelings,
• aggravated damages,
• damages under the HRA,
• declarations that they had been subject to unlawful race discrimination and breaches of their Convention rights, and
• special damages in relation to the costs they had incurred in going through the process of inter-country adoption after they were discouraged from applying to Adopt Berkshire.

In (1) Sandeep Mander (2) Reena Mander v (1) Royal Borough of Windsor & Maidenhead and (2) Adopt Berkshire HHJ Melissa Clarke found for the claimants, saying she was satisfied that on the evidence before her that they had made out a prima facie case of direct discrimination.

The judge also concluded that the defendants had not displaced the presumption of direct discrimination from the Manders’ prima facie case. However, HHJ Melissa Clarke did dismiss the Article 12 element of the claim.

The Manders were awarded general damages of more than £29,000 (but not aggravated damages) and special damages of more than £60,000.

Responding to the ruling, a spokesperson from the Royal Borough of Windsor & Maidenhead said: “We are very disappointed by the judgement in this case, which we will now take time to consider in full. We have reviewed our policies to ensure they are fit for purpose and are confident that we do not exclude prospective adopters on the grounds of ethnicity.

“Finally, we always put the best interests of the children at the heart of any adoption decisions and are committed to best practice in our provision of adoption services.”

Mr and Mrs Mander, who in January this year adopted a boy from the USA, said: “This decision ensures that no matter what race, religion or colour you are, you should be treated equally and assessed for adoption in the same way as any other prospective adopter.

“We believe our experience with Adopt Berkshire was not just an isolated event. When we went through the Intercountry adoption process we came across many couples who had similar experiences.

“Let us be clear, a child’s welfare is the most important thing when looking for any prospective adopter. However matching cultural values and beliefs is just one of many areas that should be assessed when looking at the suitability of adopters to ensure that child’s welfare. It should never be the overriding factor to stop you even being considered, which is what happened to us. And certainly, cultural values and beliefs should never be assumed based on an ethnic tick box as was our experience.”

Rebecca Hilsenrath, Chief Executive of the Equality and Human Rights Commission, said: “The law is very clear. Race and culture are not the only factors when local authorities and adoption agencies match prospective parents and children.

“We get this wrong at the expense of the children we are trying to help. We should not be treating people differently when they are offering loving homes, just because of where they or their parents come from."

Georgina Calvert-Lee, Senior Counsel at McAllister Olivarius, the law firm that represented the Manders, said: “Today’s judgment is a victory for all British children who need loving adoptive homes, and for all the eligible, loving adoptive British families hoping to welcome them into their lives.  

“From the start, Adopt Berkshire acknowledged that the Manders were excellent candidates to be adoptive parents. And yet Adopt Berkshire refused to even let them apply, prejudging them based on how they defined the Manders’ ‘cultural identity’.”