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R (On the application of Cornerstone (North East) Adoption and Fostering Services Ltd v Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (Ofsted) [2021] EWCA Civ 1390

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The Appellant ('Cornerstone') is an independent fostering agency ('IFA'). It recruits and supports carers for children in local authority care who need to be fostered and in some cases adopted. The Respondent, 'Ofsted' is the statutory body whose functions include the registration, regulation and inspection of IFAs.

The issue in this case is whether it is lawful for Cornerstone only to accept heterosexual evangelical Christians as potential carers. Ofsted considered that this breached the Equality Act 2010 and the Human Rights Act 1998 and required Cornerstone not to discriminate on grounds of sexual orientation or religious belief. In June 2019, Cornerstone issued judicial review proceedings, seeking a declaration that Ofsted's findings about the recruitment policy was unfounded, an order quashing the requirement in the draft report, and damages.

This is an appeal from Mr Justice Julian Knowles in a judgment reported at 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). The judge made the following findings:

1. Cornerstone's recruitment policy is not unlawfully discriminatory on the grounds of religious belief because the exception in para 2 sch 23 EA 2010 applies.

2. The policy was unlawful and discriminatory against gay men and lesbians.

3. Ofsted's report did not violate Cornerstone's rights under Article 9-11 and 14 of the ECHR.

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' (Feb 2017 ('SCCIF').

Cornerstone was given permission to appeal on 5 of their pleaded 12 grounds meaning the remaining findings of the judge are undisturbed: That Cornerstone were providing a service to the public, recruitment of foster carers is done on behalf of a public authority and is done under the terms of a contract, and that Cornerstone is a 'hybrid' public authority for the purposed of s6 HRA 1998.

Cornerstone were allowed to produce a witness statement from Reverend Matthew Mason to counter the Judge's assertion that there are gay evangelical Christians and therefore that there were no victims of this policy. Rev Mason contends that a person who embraces a sinful lifestyle (Rev. Mason includes in this definition same-sex relationships) cannot validly claim to be an evangelical Christian. Each Cornerstone foster carer must sign up the code of practice which includes at Clause 10

'Set a high standard in personal morality which recognises that God's gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication, adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex'.

These beliefs are not imposed on the children within placements who may be of Christian faith, another faith or no faith.

The Charity Commission in January 2011 accepted that Cornerstone did not discriminate on the grounds of sexual orientation, although it gave no reasoning. It noted that Cornerstone was providing services only to evangelical Christians, which required justification but within para 2 of sch 23 EA 2010 which permits the restriction of services because of the purpose of the organisation and/or to avoid causing offence on grounds of religion or belief.

The appellate court dealt with the grounds of appeal as follows:

Ground 1: The judge erred in concluding that Ofsted has properly exercised its power and jurisdiction to require Cornerstone to modify the recruitment policy as contained in its charitable instrument, that when acting in pursuance of this charitable instrument, Cornerstone did not contravene the EA 2010.

• Rejected. Ofsted are entitled to have regard to the EA 2010 and HRA 1998 when inspecting IFAs. The Charity Commission does not have exclusive jurisdiction.

Ground 3: The judge erred in concluding that Cornerstone's recruitment, selection and appointment of foster carers was direct discrimination because of sexual orientation, within the meaning of s.13(1) EA 2010.

• Rejected. The Judge at first instance was right to reject the false distinction between sexual behaviour (banned) and sexual orientation (not mentioned).

• There is no potential for an exception for a religious organisation under sch. 23 para. 2 because of the public character of Cornerstone's provision of services.

Ground 4: The judge erred in concluding that Cornerstone's recruitment, selection and appointment of foster carers is not a proportionate means of achieving a legitimate aim, and is therefore unlawful indirect discrimination.

• Rejected. Cornerstone sought to show that their policy is a proportionate means of achieving a legitimate aim (discussed below).

Ground 9: The judge erred in holding that 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.

• Rejected. The process of regulation is different from bringing a claim of discrimination. A regulator is entitled to identify a breach in the law where it finds it.

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 of as a religious organisation.

• Because Ofsted is a public authority, it is unlawful for it to act in a way which is incompatible with a Convention right.

• The appellate court found that Cornerstone's rights under Art. 9 were engaged because its recruitment policy is a manifestation of religion.

• It also found that Ofsted's requirements materially interfered with Cornerstone's right to manifest its beliefs.

This ultimately came down to proportionality. The Judge's starting point was that particularly weighty reasons are required to justify differential treatment on the grounds of sexual orientation. Cornerstone pleaded its legitimate aims as: 'increasing the pool of evangelical Christian foster carers; affording critical support to carers; allowing those with the evangelical Christian community to serve by promoting stable and durable placements; and manifesting the beliefs of evangelical Christianity in practice of Christian charity and the support of Christian family life, to the benefit of the carers, the children cared for, Cornerstone and society as a whole'.

The court noted this was an appeal which sees a collision of two protected characteristics. However, Parliament has, in relation to religious organisations that offer a service to the public, given a clear indication that discrimination on the basis of sexual orientation is impermissible.

Looking at the final stage of the Bank Mellat test, the court concluded that in order to justify its policy, Cornerstone needed to provide credible evidence that there would be a seriously detrimental impact on carers and children. It did not do this, and its case failed on the facts.

Appeal dismissed.
 

Case summary by Harriet Dudbridge, Barrister, St John's Chambers

For full case, please see BAILII