Johns & Anor, R (on the application of) v Derby City Council & Anor

This is the judgment of the court to which we have each made a significant contribution.

This is a rolled-up hearing of the claimants’ challenge to the approach of the defendant local authority, Derby City Council, to their application to be approved as short-term, respite, foster carers. Proceedings for judicial review were instituted after a meeting of the defendant’s Fostering Panel on 10 March 2009 considered the claimants’ application but deferred a decision while the legal issues were considered. At that meeting the claimants’ legal representative canvassed the idea of a joint approach to the court for a declaration. This was accepted by the defendant, which has, with the claimants, formulated a question on which the parties seek declaratory relief.

The issue that has given rise to this case concerns the approach of the defendant to the claimants’ views about homosexuality.

The claimants are members of the Pentecostalist Church and believe that sexual relations other than those within marriage between one man and one woman are morally wrong. Between August 1992 and January 1995 they were approved as foster carers by Derbyshire County Council. They last fostered a child in September 1993 when they did so for one month. They applied for approval by the defendant in September 2004 but, because of professional and other personal commitments, withdrew that application. In June 2006 they again expressed interest in fostering. In January 2007 they applied to the defendant to be short-term foster carers. It is the treatment of that application which has given rise to these proceedings.

Following their application in January 2007 the claimants were assessed by Jenny Shaw, an independent social worker. She prepared a report (a ‘discussion document’) dated 27 August 2007, setting out a summary of the discussions she had had with the claimants including on 23 July 2007 and 7 August 2007. Since what the claimants are recorded as having said on those two occasions go to the heart of the case, we should set out the relevant parts of Ms Shaw’s report.

Referring to the discussion on 23 July 2007, Ms Shaw said:

“both Eunice and Owen expressed strong views on homosexuality, stating that it is “against God’s laws and morals”. They explained that these views stemmed from their religious convictions and beliefs. Eunice explained at a later interview, that she had always been brought up to believe that having a different sexual orientation was unnatural and wrong, and that these convictions had not come about as a result of being “saved”.

In our initial discussion on this issue, when asked if, given their views, they would be able to support a young person who, for example was confused about their sexuality, the answer was in the negative. Eunice at this time also mentioned a visit she had made to San Francisco, in relation to it being a city with many gay inhabitants. She commented that she did not like it and felt uncomfortable while she was there.”

They are also recorded as telling Ms Shaw that they would not feel able to take a child to a mosque.

Referring to a subsequent discussion with Mrs Johns on 7 August 2007 (Mr Johns was not there) Ms Shaw said:

“I expressed my concerns regarding their views on homosexuality and said that I felt that these did not equate with the Fostering Standards where they related to the need to value diversity, address a child’s needs in relation to their sexuality, enhance the child’s feeling of self-worth and help the child to deal with all forms of discrimination. I emphasised the need for carers to value people regardless of their sexual orientation. Eunice responded by saying that she could not compromise her beliefs, but that she did value people as individuals and would be able to support a young person on that basis. Eunice informed me that her nephew, who lived in the U.S., is gay, and that she has been to stay with him and his partner, and had not treated them any differently from anyone else.

I discussed with Eunice, four possible scenarios, and asked how she might support the young person:

1

Someone who is confused about their sexuality and thinks they may be gay.

2

A young person who is being bullied in school regarding their sexual orientation.

3

A young person who bullies others regarding the above.

4

Someone in their care whose parents are gay.

Eunice’s response to the first situation was that she would support any child. She did not offer any explanation as to how she would go about this. On a previous occasion when the question had been put to Owen, he responded by saying that he would “gently turn them round”. In the second situation, Eunice said she would give reassurance and tell the child to ignore it.

In response to the third situation, Eunice said she didn’t know what she would do. In the case of someone whose parents are gay, Eunice said that it wouldn’t matter, and that she would work with any one.”

She recorded her judgement as being that “Eunice’s response to these hypothetical situations was somewhat superficial, and ignored the impact that her strong beliefs on the issue, could have on her work with young people.” However, at a much earlier stage in the process Mrs Johns had assured a social worker that she would never seek to impose her belief system on a child or to denigrate the parents for their lifestyle or sexual orientation.

Mr Johns’s response to the first postulated scenario is, it might be thought, particularly revealing. There can be no doubting the meaning and significance of his reference to “turning” such a child round.

All in all, between June and August 2007, Ms Shaw had six assessment sessions with the claimants. The issue of how church activities would fit in with offering respite care, which often happens at weekends, was discussed. Mrs Johns stated she felt she could not give up going to church which she attends twice on Sundays and was doubtful about alternating with her husband if she could not take a child with her. Her husband agreed and it was made clear to them that this might limit them in terms of which children could be placed with them. A copy of the National Minimum Standards for Fostering Services (see further below) was given to the claimants on 6 August 2007. During the meeting on 7 August 2007 with Mrs Johns, Ms Shaw told her that they would have difficulty in being approved by the Fostering Panel in the light of their views on sexuality and one option would be for them to withdraw their application. The following day (8 August 2007) Mrs Johns telephoned Ms Shaw to say that they wished to go to Panel.

Ms Shaw’s report to the Fostering Panel was dated 27 August 2007. On 13 September 2007 Ms Shaw went to see the claimants again, accompanied on this occasion by the Service Manager – Fostering, Sally Penrose. Ms Shaw and Ms Penrose’s subsequent note dated 24 September 2007 records what happened:

“In relation to their expressed views on same sex relationships, Sally stressed that these views did not equate with the Fostering Standards which require carers to value individuals equally and to promote diversity. Eunice and Owen were not able to acknowledge that their very strong beliefs in this area would be likely to impact on their ability to support and reassure a young person who may be confused re their sexual identity. Having read the report, Eunice disputed that she had said that she could not support anyone who was having such difficulties. She felt that her beliefs would not affect how she was able to care for a young person, and stated that we were really saying that they could not be foster-carers because they are Christians.”

The same note records a telephone conversation between Ms Penrose and Mrs Johns on 17 September 2007 when Mrs Johns “enquired whether a change in the type of fostering they were offering to undertake would be considered if it helped with the issue of their availability.” The note continues:

“By this Eunice was indicating that maybe time limited placements would better suite their family lifestyle and routines. Whilst this may address the issue of needing to be available to a child and his/her family it does not deal with the fundamental difficulty of the applicants views and beliefs regarding Lesbian and Gay relationships and how this conflicts with meeting the National Minimum Standard 7, Valuing diversity.”

The Panel met on 13 November 2007 and considered Ms Shaw’s report. The Panel considered the following “main issues”:

“The department needs to be careful not to appear to discriminate against them on religious grounds. The issue has not arisen just because of their religion as there are homophobic people that are non-Christian.

The ability to promote diversity is the main issue.”

The claimants then addressed the Panel. Mrs Johns spoke first:

“I told Jenny, ‘I will not compromise my religious beliefs’. Mrs Johns referred to an event in the press regarding a pastor who had a foster child, removed from his care because of similar issues.

Mrs Johns stated, ‘I will not lie and tell you I will say it is ok to be a homosexual. I will love and respect, no matter what sexuality. I cannot lie and I cannot hate, but I cannot tell a child that it is ok to be homosexual. Then you will not be able to trust me. There has got to be different ways of going through this without having to compromise my faith.’

Mr Johns told panel that the documents they have been shown regarding diversity are different from when they were foster carers before. ‘We cannot adjust; it is a very delicate matter to discuss with a child. We do not wish to go into this kind of debate’.

Mrs Johns said that she accepts that we are living in different times, children are different too, in a different society but there has got to be a way where I don’t have to compromise and say that it is ok to be homosexual.”

The Panel understood the claimants to be withdrawing their application and in the light of this Ms Penrose on 5 December 2007 informed the claimants that the defendant had closed their application. The understanding of the Panel and the defendant about the claimants’ position was in fact mistaken. On 5 February 2008 the claimants informed the defendant that they had not withdrawn their application and that they wished to pursue it. Their letter also stated that the reports of the social workers suggested that the defendant considered their Christian faith and biblical beliefs about sexual orientation prevented them from being suitable foster carers and expressed concern about this.

On 26 and 27 February 2008 the claimants gave a number of interviews to the local and national press. On 3 March 2008 the defendant informed the claimants that their application had been reinstated. The letter reiterated that the Panel’s recommendation “was not due to your religious beliefs.”

By this time the claimants believed that the defendant was discriminating against them on religious grounds and that the result of the defendant’s approach to their application was that it would not be prepared to approve any believing Christian as a foster carer. They wrote to the defendant on several occasions suggesting that this was its policy and asking for confirmation: see, for example, their letter dated 18 March 2008 in which they said “we require to know whether in Derby City Council’s view, ‘Christians’, holding our views on sexual ethics, as a section of the public, are suitable persons for fostering children.”

There was further communication between the claimants and the defendant including letters from the claimants dated 14 June 2008 and 3 July 2008 asking the defendant to state what its policies were. The latter included the following:

“We take these statements and others to mean that it is either your policy, or your understanding of the law, that Christians and other faith groups who hold the view that any sexual union outside a marriage between a man and a woman is morally reprehensible are persons who are unfit to foster. In short you seem to be suggesting that Christians (such as us) can only adopt if we compromise our beliefs regarding sexual ethics.

Furthermore you have declined to respond to our question regarding your attitude towards the Christian faith. We interpret your failure to respond as a sign that you are not prepared to deny that you view those of us who hold the above views on sexual ethics are “homophobic”. I believe that the descriptor “homophobic” is demeaning and degrading to our faith and our dignity.”

The defendant replied on 25 July 2008 stating that it had no policy “which states that Christians can only foster if they compromise their beliefs on sexual ethics.”

In the light of the claimants’ wish to pursue their application, an assessment report was prepared by Lynda Williams, a social worker, assessing them as potential foster carers. Ms Williams began her work on 2 June 2008 and completed her report, which ran to 48 pages, on 9 December 2008. The report concluded with the following observations:

“Eunice and Owen are kind and hospitable people, who would always do their best to make a child welcome and comfortable. They would endeavour, I am sure, to respond sensitively to a child and would take their responsibilities as carers seriously. The possible shortfalls described in this report in relation to their potential as foster carers do not detract from the fact that they are well-meaning and caring people, who are clearly well-regarded by their family and friends.

It is fair to say that I retain a number of reservations about their potential to meet the wide range of expectations we have of carers to fulfil this very demanding and complex role and would struggle to recommend them for approval as mainstream foster carers.

Panel may wish to consider, however, whether as respite carers for a child matching a specific profile, where the demands and difficulties are likely to be less intense and the role more circumscribed, approval would be appropriate. The question to be considered is whether for a somewhat less challenging role we demand the same degree of demonstrable insight and skill as for full time carers.

In addition Mr and Mrs Johns’ views on same sex relationships, which are not in line with the current requirements of the National Standards, and which are not susceptible to change, will need to be considered when panel reaches it’s conclusion.”

The claimants’ application was next considered by the defendant’s Fostering Panel on 10 March 2009. It was this meeting which deferred a decision.

Following this the proceedings were launched on 14 April 2010. This rolled-up hearing was ordered on 17 June 2010. The Secretaries of State for Health and for Communities and Local Government, the relevant UK government Ministers, were informed of these proceedings and invited to consider whether they wished to intervene, but have declined to do so. In a letter dated 15 September 2010 the Equality and Human Rights Commission gave the parties notice of its intention to apply to intervene. It did so on 29 September 2010, and was granted permission on 5 October 2010.

The hearing before us was on 1 November 2010. The claimants were represented by Mr Paul Diamond, the defendant by Mr Jeremy Weston and the intervener by Ms Karon Monaghan QC.

The proceedings are most unusual. As Mr Diamond observed at one point, this case is about a principle in abstracto.

In the first place, there has been no decision; the ‘decision’ taken on 10 March 2009 – over a year before the application was issued – was merely a decision to defer a decision.

Second, neither the claimants nor the defendant have filed any evidence. The facts relied on by the claimants are merely those set out in fairly summary form in their statement of grounds. Certain facts are asserted by the defendant in its detailed grounds for contesting the claim. Thus the defendant says that it has approved foster carers who are very committed Christians who hold to orthodox beliefs – whatever that means – and devout Muslim carers who are similarly committed to their religion, but who in both instances are able to value diversity notwithstanding their strongly held religious beliefs. But again there is no evidence in support. So far as concerns the claimants and the defendant, the court is left to determine the case on the basis of various documents included in the trial bundle, including those from which we have quoted.

In contrast, the Equality and Human Rights Commission has filed evidence, in the form of a witness statement by its interim Director of Legal Enforcement, Wendy Hewitt. She explains the Commission’s wish to adduce evidence on, inter alia, the impact of views opposed to, and disapproving of, same sex relationships and lifestyles on the development and well-being of children and young people, including gay and lesbian children and young people. Over 200 pages of literature said to bear on these issues has been produced by the Commission, the two most important documents being ‘Social exclusion of young lesbian, gay, bisexual and transgender (LGBT) people in Europe’, written by Judit Takács on behalf of ILGA-Europe (the European Region of the International Lesbian and Gay Association) and IGLYO (the International Lesbian, Gay, Bisexual, Transgender, Queer Youth and Student Organisation) and published with the support of the European Commission – The European Union against discrimination in April 2006, and ‘Young lesbian, gay and bisexual (LGB) people’, a briefing for health and social care staff written by Dr Julie Fish as part of the Department of Health’s Sexual Orientation and Gender Identity Advisory Group’s work programme and published by the Department of Health in 2007.

By way of riposte, Mr Diamond has referred us to a plethora of other research, much of it apparently emanating from North America. He characterises the materials relied on by the Commission as being highly controversial, selective and not accepted by experts in this field.

We are in no position to assess let alone evaluate any of this material. There is no need for us to do so. And even assuming we had the expertise, the exercise if it was to have any value would require a quite disproportionate amount of time. As Mr Diamond says, the court is ill-equipped over a few days to determine such issues which are, after all, properly a matter for Parliament or other policy makers. We accordingly say no more about it.

Third, although the claim form stated that the parties were seeking a declaration, the claimants and the defendant in fact merely posed a question to which it sought an answer from the court:

“How is the Local Authority as a Fostering Agency required to balance the obligations owed under the Equality Act 2006 (not to directly or indirectly discriminate on the grounds of religion or belief), the obligations under the Equality Act (Sexual Orientation) Regulations 2007 (not to discriminate directly or indirectly based on sexual orientation), the Human Rights Act 1998, the National Minimum Standards for Fostering Services and Derby City Council’s Fostering Policy when deciding whether to approve prospective foster carers as carers for its looked-after children. Within that balancing exercise does the Local Authority have a duty to treat the welfare of such looked-after children as its paramount consideration?”

Shortly before the hearing, and in order to focus the points at issue, we asked the parties to formulate the terms of the declarations that they sought. The claimants and the defendant did so. The claimants sought the following declarations (as refined following the hearing):

“(a)

Persons who adhere to a traditional code of sexual ethics, according to which any sexual union outside marriage (understood as a lifelong relationship of fidelity between a man and a woman) is morally undesirable, should not be considered unsuitable to be foster carers for this reason alone. This is a correct application of the National Minimum Standards 7 ‘Valuing Diversity’.

(b)

Persons who attend Church services at a mainstream denomination are, in principle, suitable to be foster carers.

(c)

It is unlawful for a Foster Service to ask potential foster carers their views on homosexuality absent the needs of a specific child.

(d)

It is unlawful for a public authority to describe religious adherents who adhere to a code of moral sexual ethics namely; that any sexual union outside marriage between a man and a woman in a lifetime relationship of fidelity is morally undesirable, as ‘homophobic’.”

The declaration sought by the defendant (as refined during the hearing) is:

“A fostering service provider may be acting lawfully if it decides not approve a prospective foster carer who evinces antipathy, objection to, or disapproval of, homosexuality and same-sex relationships and an inability to respect, value and demonstrate positive attitudes towards homosexuality and same-sex relationships.”

The intervener considers that declaratory relief in the circumstances of this case is problematic. Ms Monaghan submitted that both the claimants’ and the defendant’s formulations were too wide. She submitted that in a context where no decision had yet been made, and where there may be a range of factual contexts for reaching a particular decision about an application to become an approved foster carer, it is difficult to formulate a form of declaratory relief which would in fact be of assistance to the parties and to other public authorities and applicants who wished to become foster carers. We deal with this later in this judgment.

There is much learning as to the extent to which the Administrative Court should become engaged in issues such as those sought to be canvassed here. We do not think this an appropriate occasion on which to explore the question in any detail though recording that we have received much assistance from the judgment of Richards J (as he then was) in Islington London Borough Council v Camp [2004] LGR 58. Without thereby intending to lay down any principle of law, we are inclined to think that the kind of situation where it is appropriate to invite the court to decide some abstract or future question is where the relevant facts are clear and where the identified question of law can be answered with something approaching a simple yes or no. The present case, as will be apparent, is fairly far removed from that: there is little by way of evidence and the question posed for our consideration – “How is the Local Authority … required to balance the obligations owed under” various enactments and instruments – could hardly be more open.

We are prepared, albeit with misgivings, to exercise the jurisdiction which we undoubtedly have to consider whether to grant any (and if so what) relief. But we emphasise that this case is, in our judgment, at the very outer limit of what could be an appropriate exercise of our jurisdiction. In the event, and for the reasons we give below, this is not, however, a case in which we are prepared to grant the claimants permission to apply for judicial review.

In his skeleton argument and in his oral submissions, Mr Diamond lays much emphasis upon various arguments, many of them couched in extravagant rhetoric, which, to speak plainly, are for the greater part, in our judgment, simply wrong as to the factual premises on which they are based and at best tendentious in their analysis of the issues. We do not doubt the sincerity of the claimants’ views – both their views on the issues which underlie this litigation and their views as to the issues raised in the wider public debate which Mr Diamond seeks to canvass on their behalf – but as articulated by Mr Diamond they have little to do with the legal issues which are, alone, our concern.

Thus Mr Diamond’s skeleton argument opens with these words, “This case raises profound issues on the question of religious freedom and whether Christians (or Jews and Muslims) can partake in the grant of ‘benefits’ by the State, or whether they have a second class status” (emphasis in original). He continues, “The advancement of same sex rights is beginning to be seen as a threat to religious liberty”. He asserts that “something is very wrong with the legal, moral and ethical compass of our country” and that “Gay rights advocates construe religious protection down to vanishing point.” He submits that the State “should not use its coercive powers to de-legitimise Christian belief.” He asserts that what he calls the modern British State is “ill suited to serve as an ethical authority” and complains that it “is seeking to force Christian believers ‘into the closet’.” He identifies the issue before the court as being “whether a Christian couple are ‘fit and proper persons’ (Counsel’s use of phrase) to foster (and, by implication, to adopt) by reason of their faith” and “whether Christian (and Jewish and Muslim) views on sexual ethics are worthy of respect in a democratic society.” The manner in which he chooses to frame the argument is further illustrated by his submissions that what is here being contended for is “a blanket denial on all prospective Christian foster parents in the United Kingdom”, indeed “a blanket ban against all persons of faith”, an “irrebutable presumption that no Christian (or faith adherent) can provide a suitable home to a child in need of a temporary placement”, that “the denial of State benefits to those who believe homosexuality is a ‘sin’ must be premised on the basis that such beliefs are contrary to established public policy” and that what is being said amounts to this, that “the majority of world religions [are] deemed to have a belief system that could be described as bigotry or discriminatory because of a code of sexual ethics that some people disagree with.”

It is hard to know where to start with this travesty of the reality. All we can do is to state, with all the power at our command, that the views that Mr Diamond seeks to impute to others have no part in the thinking of either the defendant or the court. We are simply not here concerned with the grant or denial of State ‘benefits’ to the claimants. No one is asserting that Christians (or, for that matter, Jews or Muslims) are not ‘fit and proper’ persons to foster or adopt. No one is contending for a blanket ban. No one is seeking to de-legitimise Christianity or any other faith or belief. No one is seeking to force Christians or adherents of other faiths into the closet. No one is asserting that the claimants are bigots. No one is seeking to give Christians, Jews or Muslims or, indeed, peoples of any faith, a second class status. On the contrary, it is fundamental to our law, to our polity and to our way of life, that everyone is equal: equal before the law and equal as a human being endowed with reason and entitled to dignity and respect.

We add this. On these issues Mr Diamond seeks to equiperate the views of Christians, Jews and Muslims. Thus he says (we quote his skeleton argument) that “all of the major religions (Judaism, Christianity and Islam) teach against homosexual conduct.” He says, quoting the claimants’ grounds, that “major faith groups (including Christianity, Judaism and Islam), hold to the orthodox view that any sexual union outside marriage between one man and one woman is morally undesirable”, describing marriage for this purpose in his proposed declaration as “a lifelong relationship of fidelity between a man and a woman.” We find these propositions surprising, at least when stated in this bald form. As far as the court is concerned, the content of any religious faith or belief is a matter of fact to be proved by evidence. We are, however, entitled, we think, to take judicial notice of the fact that, whereas the Sharia is still understood in many places as making homosexuality a capital offence, the Church of England permits its clergy, so long as they remain celibate, to enter into civil partnerships. Moreover, the Christian concept of marriage, encapsulated in the famous definition of Lord Penzance in Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130, 133, that marriage is “the voluntary union for life of one man and one woman, to the exclusion of all others”, hardly accords with the Sharia, which permits a man to have up to four wives and to divorce any of them at any time by his unilateral pronouncement of a bare talaq.

In the circumstances we cannot avoid the need to re-state what ought to be, but seemingly are not, well understood principles regulating the relationship of religion and law in our society. We preface what follows with the obvious point that we live in this country in a democratic and pluralistic society, in a secular state not a theocracy.

We start with the common law.

Although historically this country is part of the Christian west, and although it has an established church which is Christian, there have been enormous changes in the social and religious life of our country over the last century. Our society is now pluralistic and largely secular. But one aspect of its pluralism is that we also now live in a multi-cultural community of many faiths. One of the paradoxes of our lives is that we live in a society which has at one and the same time become both increasingly secular but also increasingly diverse in religious affiliation.

We sit as secular judges serving a multi-cultural community of many faiths. We are sworn (we quote the judicial oath) to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.” But the laws and usages of the realm do not include Christianity, in whatever form. The aphorism that ‘Christianity is part of the common law of England’ is mere rhetoric; at least since the decision of the House of Lords in Bowman v Secular Society Limited [1917] AC 406 it has been impossible to contend that it is law.

Moreover, the days are long since past when marriage was treated, even by the Ecclesiastical Courts, as an exclusively religious matter. As long ago as 1795, Sir William Scott, sitting in the Consistory Court of London, could say in Lindo by her Guardian v Belisario (1795) 1 Hag Con 216, 230:

“It is held by some persons that marriage is a contract merely civil, by others, that it is a sacred, religious, and spiritual contract, and only so to he considered The jurisdiction of the Ecclesiastical Court was founded on ideas of this last described nature; but in a more correct view of this subject, I conceive that neither of these opinions is perfectly accurate. According to juster notions of the nature of the marriage contract, it is not merely either a civil or religious contract; and, at the present time, it is not to be considered as originally and simply one or the other. It is a contract according to the law of nature, antecedent to civil institution.”

A few years later in Turner v Meyers (falsely calling herself Turner) (1808) 1 Hag Con 414, at 416-417, Sir William referred to the view of “the mysterious nature of the contract of marriage, in which its spiritual nature almost entirely obliterated its civil character” as a notion that prevailed in the dark ages: “In more modern times it has been considered, in its proper light, as a civil contract, as well as a religious vow”.

Religion – whatever the particular believer’s faith – is no doubt something to be encouraged but it is not the business of government or of the secular courts, though the courts will, of course, pay every respect and give great weight to the individual’s religious principles. Article 9 of the European Convention, after all, demands no less. The starting point of the common law is thus respect for an individual’s religious principles coupled with an essentially neutral view of religious beliefs and benevolent tolerance of cultural and religious diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect. And the civil courts are not concerned to adjudicate on purely religious issues, whether religious controversies within a religious community or between different religious communities.

We cite in this context the recent words of Lord Hope of Craighead DPSC in R (E) v Governing Body of JFS and another (United Synagogue and others intervening) [2009] UKSC 15, [2010] 2 AC 728, para [157]:

“It has long been understood that it is not the business of the courts to intervene in matters of religion. In R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex p Wachmann [1992] 1 WLR 1036, 1042-1043, Simon Brown J observed that the court was hardly in a position to regulate what was essentially a religious function – in that case, the determination whether someone was morally and religiously fit to carry out the spiritual and pastoral duties of his office. As he put it, the court must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised divide between church and state. This too is the approach of the legislature, as Hoffmann LJ said in R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909, 932: religion is something to be encouraged but it is not the business of government.”

However, it is important to realise that reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law. And invocation of religious belief does not necessarily provide a defence to what is otherwise a valid claim.

Some cultural beliefs and practices are simply treated by the law as being beyond the pale. Some manifestations of religious practice will be regulated if contrary to a child’s welfare. One example is the belief that the infliction of corporal punishment is an integral part of the teaching and education of children and is efficacious: see section 548 of the Education Act 1996, as amended by section 131(1) of the School Standards and Framework Act 1998, which banned it in schools. (The unsuccessful challenge to the ban in R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246 was not founded on the common law but on Article 9 of the European Convention.) And some aspects of mainstream religious belief may even fall foul of public policy. A recent striking example is Westminster City Council v C and others [2008] EWCA Civ 198, [2009] Fam 11, where the Court of Appeal held on grounds of public policy that a ‘marriage’ valid under both Sharia law and the lex loci celebrationis despite the manifest incapacity of one of the parties was not entitled to recognition in English law. Another recent example of tension between religious law and secular law, in that particular instance Jewish law and secular race discrimination law as embodied in the Race Relations Act 1976, is R (E) v Governing Body of JFS, to which we have referred.

The present dispute is merely one of a number of recent cases where the tension has been between an individual’s Christian beliefs and discrimination law as enacted by Parliament. Well known examples include the recent decisions of the Court of Appeal in Islington London Borough Council v Ladele (Liberty intervening) [2009] EWCA Civ 1357, [2010] 1 WLR 955 (dismissing an appeal from the decision of the Employment Appeal Tribunal: [2009] ICR 387), and in McFarlane v Relate Avon Limited [2010] EWCA Civ 880, [2010] IRLR 872 (refusing permission to appeal from the decision of the EAT: [2010] ICR 507). We shall return to these two cases below. Here we merely note what Lord Hope went on to say in R (E) v Governing Body of JFS at para [158], immediately after the passage we have already cited:

“It is just as well understood, however, that the divide [between church and state] is crossed when the parties to the dispute have deliberately left the sphere of matters spiritual over which the religious body has exclusive jurisdiction and engaged in matters that are regulated by the civil courts. In Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 AC 28, for example, the appellant was employed by the Board of Mission under a contract personally to execute work within the meaning of section 82(1) of the Sex Discrimination Act 1975. The articles declaratory of the constitution of the Church of Scotland set forth in the Schedule to the Church of Scotland Act 1921 contain an assertion that the civil authority has no right of interference in the proceedings and judgments of the Church within the sphere of its spiritual government and jurisdiction. But it was held that by entering into a contract binding under the civil law the parties had put themselves within the jurisdiction of the civil courts and that the appellant’s claim of sex discrimination could not be regarded as a spiritual matter.”

The same approach is enshrined in Article 9 of the European Convention:

“1  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The protection of Article 9 is qualified in two ways. In the first place, the Convention protects only religions and philosophies which are “worthy of respect in a ‘democratic society’ and are not incompatible with human dignity”: see Campbell and Cosans v United Kingdom (No 2) (1982) 4 EHRR 293, at para [36]. We mention the point only for completeness; it plainly does not arise in this case, because the claimants’ Pentecostalist beliefs are clearly worthy of respect. Secondly, whilst religious belief and thought are (subject to that overriding qualification) given absolute protection by Article 9(1), the “manifestation” of one’s religion in “worship, teaching, practice and observance” is subject to the qualifications referred to in Article 9(2). We shall return to this latter point below.

But what it is vital to appreciate is that the Convention forbids the state to determine the validity of religious beliefs and in that respect imposes on the state a duty of what the Strasbourg court has called neutrality and impartiality.

In Moscow Branch of the Salvation Army v Russia (2006) 44 EHRR 912 the Strasbourg court stressed both the importance of the rights protected by Article 9 and the limits to the state’s right to interfere. At para 57 it said (citations omitted):

“The Court refers to its settled case law to the effect that, as enshrined in Art 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

The court explained its view of pluralism at para 61:

“pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion.”

Underpinning all this is the fundamental point which the court made in para 58:

“The State’s duty of neutrality and impartiality, as defined in the Court’s case-law, is incompatible with any power on the state’s part to assess the legitimacy of religious beliefs.”

It returned to the point in para 92:

“The Court points out that, according to its constant case law, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.”

We have referred to the extravagant rhetoric Mr Diamond has used before us. Similar rhetoric was deployed by Mr Diamond before Laws LJ in McFarlane v Relate Avon Limited [2010] EWCA Civ 880, [2010] IRLR 872, where he mounted what Laws LJ described (para [14]) as “vigorous assaults” against the decision of the Court of Appeal in Islington London Borough Council v Ladele (Liberty intervening) [2009] EWCA Civ 1357, [2010] 1 WLR 955.

Before addressing precisely what it is that Ladele decided, and why Laws LJ rejected the argument that it had been decided per incuriam,it is illuminating to examine his response to the wider matters canvassed before him in McFarlane by Mr Diamond.

The application in that case was supported by a witness statement from Lord Carey of Clifton, the former Archbishop of Canterbury. It suffices for present purposes to quote the following passages from that statement as set out in Laws LJ’s judgment:

“I wish to dispute that the manifestation of the Christian faith in relation to same sex unions is ‘discriminatory’ and contrary to the legitimate objectives of a public body. Further, I wish to dispute that such religious views are equivalent to a person who is, genuinely, a homophobe and disreputable. I will deal with these two issues.

The description of religious faith in relation to sexual ethics as ‘discriminatory’ is crude; and illuminates a lack of sensitivity to religious belief. The Christian message of ‘love’ does not demean or disparage any individual (regardless of sexual orientation); the desire of the Christian is to limit self destructive conduct by those of any sexual orientation and ensure the eternal future of an individual with the Lord.

The field of sexual ethics and Christian (and other religious) teaching on this subject is a field of complex theology for debate by the Church and other religious institutions. The vast majority of the more than 2 billion Christians would support the views held by Ms Ladele. The descriptive word ‘discriminatory’ is unbefitting and it is regrettable that senior members of the Judiciary feel able to make such disparaging comments.

The comparison of a Christian, in effect, with a ‘bigot’ (ie a person with an irrational dislike to homosexuals) begs further questions. It is further evidence of a disparaging attitude to the Christian faith and its values. In my view, the highest development of human spirituality is acceptance of Christ as saviour and adherence to Christian values. This cannot be seen by the Courts of this land as comparable to the base and ignorant behaviour. My heart is in anguish at the spiritual state of this country.

It is, of course, but a short step from the dismissal of a sincere Christian from employment to a ‘religious bar’ to any employment by Christians. If Christian views on sexual ethics can be described as ‘discriminatory’, such views cannot be ‘worthy of respect in a democratic society’. An employer could dismiss a Christian, refuse to employ a Christian and actively undermine Christian beliefs. I believe that further Judicial decisions are likely to end up at this point and this why I believe it is necessary to intervene now”.

The similarity to what is being said here on behalf of the claimants will be noted.

In response, Laws LJ said this (para [18]):

“Lord Carey’s observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as disreputable, nor have they likened Christians to bigots. They administer the law in accordance with the judicial oath, without fear or favour, affection or ill will. It is possible that Lord Carey’s mistaken suggestions arise from a misunderstanding on his part as to the meaning attributed by the law to the idea of discrimination. In cases of indirect discrimination … the law forbids discriminatory conduct not by reference to the actor’s motives but by reference to the outcome of his or her acts or omissions. Acts or omissions may obviously have discriminatory effects and outcomes, as between one group or class of persons and another, whether their motivation is for good or ill; and in various contexts the law allows indirect discrimination where, in a carefully controlled legislative setting, it can be shown to have justifiable effects. Accordingly, the proposition that if conduct is accepted as discriminatory it therefore falls to be condemned as disreputable or bigoted is a non sequitur; but it is the premise of Lord Carey’s position.”

Having observed that although he believed these considerations refuted the applicant’s argument as to the meaning of discrimination, they did not confront deeper concerns expressed in Lord Carey’s statement and in Mr Diamond’s argument, Laws LJ continued (para [20]):

“These concerns are formulated at such a level of generality that it is hard to know precisely what Lord Carey has in mind. Broadly, however, the argument must be that the courts ought to be more sympathetic to the substance of the Christian beliefs referred to than appears to be the case and should be readier than they are to uphold and defend them.”

Having thus identified the argument Laws LJ proceeded (paras [21]-[23]) in a passage which is of such importance that we must set it out verbatim:

“In a free constitution such as ours there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian’s right and every other person’s right to hold and express his or her beliefs, and so they should. By contrast, they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society. The first of these conditions is largely uncontentious. I should say a little more, however, about the second. The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law, the prohibition of violence and dishonesty. The Judea-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of law-makers as to the objective merits of this or that social policy, and the liturgy and practice of the established church are to some extent prescribed by law. But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled; it imposes compulsory law not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since, in the eye of everyone save the believer, religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may, of course, be true, but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer who is alone bound by it; no one else is or can be so bound, unless by his own free choice he accepts its claims.

The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified; it is irrational, as preferring the subjective over the objective, but it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself.

So it is that the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime.”

We respectfully and emphatically agree with every word of that.

These preliminary and rhetorical matters out of the way, we can now identify the legal matters in issue between the parties.

Mr Diamond submits on behalf of the claimants, first, that the defendant’s consideration of their Christian beliefs is an irrelevant consideration in the context of their application to become foster carers, because their views on sexuality are not a legitimate fostering concern. Second, he submits that the defendant’s position constitutes religious discrimination contrary to Article 9 of the Convention and that the defendant has advanced no compelling grounds to justify such discrimination. Third, he submits that it is Wednesbury unreasonable for the “majority of the population”, as he puts it, to be excluded from possible fostering because of its Christian beliefs.

Mr Weston on behalf of the defendant draws attention to and relies upon a number of legal instruments in addition to the Fostering Services Regulations 2002, SI 2002/57, and human rights law (in particular Articles 8 and 14 of the Convention):

It is important to note that, in answer to a specific question we put to him, Mr Diamond confirmed to us in terms that none of these instruments was challenged as being either not compliant with the Convention or otherwise unlawful. So there is no suggestion that the defendant’s policies as set out in the instruments Mr Weston relies upon are unlawful; Mr Diamond’s challenge is only to the way in which the defendant is (or, to put the point more accurately, may be) proposing to apply the legislation and the policies to the claimants’ application.

Initially, Mr Weston submitted that if the defendant were to decline to approve foster carers who, and we quote, “declare antipathy, objection to, or disapproval of homosexuality and same sex relationships”, it would be acting consistently with all these various instruments and lawfully. On reflection he moderated the proposition, substituting ‘may be’ for ‘would’ (cf the form of proposed declaration which we have set out above).

The submissions of Ms Monaghan, on behalf of the Commission, were almost exclusively concerned with the legal framework for addressing the issues that arise from the circumstances of this case. Her written submissions did not deal with the position of the claimants in this case, although they concluded (paragraph 59) with the statement that, as a generality “there is often scope for change where a person is willing to perform his or her professional duties in a way required by applicable standards notwithstanding personal belief” and that “attitudes too might be changed, moderated or modified through training, counselling and support”. Her oral submissions did not, except tangentially in the context of whether it is appropriate for declaratory relief to be granted, deal with the particular position of the claimants.

Although our summary of the facts and the submissions in this case focus on the issue of sexual orientation and the way it was handled, it is important to note that, as we have seen, the documents indicate that the defendant was also concerned with other matters. Thus Mr Weston referred to such matters as who would care for a child who was likely to be there at weekends when the claimants were at the two church services they attended on Sundays, the indication that they would not take a Muslim child in their care to a mosque, and their availability in a wider sense because of the pressures of their work and other commitments.

Before turning to address these issues it will be convenient to say some more about the relevant legal framework within which they have to be resolved.

The procedures for assessing and approving prospective foster parents are set out in Part IV and Schedule 3 of the Fostering Services Regulations 2002, SI 2002/57. There is no need for us to go through the Regulations in any detail. Regulation 27 deals with the process of assessment and regulation 28 with the process of approval.

Regulation 27(2) requires the agency to obtain the information specified in Schedule 3. Paragraphs 6 and 7 of Schedule 3 include as part of this information the prospective foster carer’s “religious persuasion, and … capacity to care for a child from any particular religious persuasion” and his “racial origin, … cultural and linguistic background and … capacity to care for a child from any particular origin or cultural or linguistic background.”

Regulation 28(2) provides that the agency shall not approve a person as a foster parent unless it has completed its assessment and its fostering panel has considered the application. Regulation 28(5)(a) provides that if the decision is to approve, then notice is to be given “specifying the terms of the approval, for example, whether it is in respect of a particular named child or children, or number and age range of children, or of placements of any particular kind, or in any particular circumstances.” Regulation 28(6)(a) provides that if it is considered that a person is not suitable, then notice is to be given by the agency that “it proposes not to approve the person as suitable … together with its reasons and a copy of the fostering panel’s recommendation.”

It will be appreciated that in the present case the statutory process was halted by mutual agreement before the Fostering Panel had come to any conclusions or formulated any recommendation.

The National Minimum Standards for Fostering Services are, as we have said, a statement of national minimum standards published by the Secretary of State for Health under section 23 of the Children Act 1989 and section 23 of the Care Standards Act 2000. They are enforceable against local authorities by the Secretary of State under section 47 of the 2000 Act. They are expressed as being ‘minimum’ standards, rather than ‘best possible’ practice.

Standards 7 and 8 are part of a group of standards dealing with the key topic of ‘Securing and promoting welfare’ where the outcome to be achieved by the agency is stated to be “The fostering service promotes and safeguards the child/young person’s physical, mental and emotional welfare.” So far as material, standard 7 (entitled ‘Valuing diversity’) provides as follows:

“7.1

The fostering service ensures that children and young people, and their families, are provided with foster care services which value diversity and promote equality.

7.2

Each child and her/his family have access to foster care services which recognise and address her/his needs in terms of gender, religion, ethnic origin, language, culture, disability and sexuality. If a foster placement has to be made in an emergency and no suitable placement is available in terms of above, then steps are taken to achieve the above within 6 weeks.

7.3

The fostering service ensures that foster carers and social workers work cooperatively to enhance the child’s confidence and feeling of self-worth. Foster carers’ and social workers’ training covers this issue.

7.5

The fostering service ensures that their foster carers support and encourage each child to develop skills to help her/him to deal with all forms of discrimination. Foster carers’ preparation and training covers this.”

So far as material, standard 8 (entitled ‘Matching’) provides as follows:

“8.1

Local authority fostering services, and voluntary agencies placing children in their own right, ensure that each child or young person placed in foster care is carefully matched with a carer capable of meeting her/his assessed needs. For agencies providing foster carers to local authorities, these agencies ensure that they offer carers only if they represent appropriate matches for a child for whom a local authority is seeking a carer.

8.5

Placement decisions consider the child’s assessed racial, ethnic, religious, cultural and linguistic needs and matches these as closely as possible with the ethnic origin, race, religion, culture and language of the foster family.”

The Statutory Guidance on Promoting the Health and Well-Being of Looked-After Children, issued to local authorities under section 7 of the Local Authority Social Services Act 1970 and sections 10 and 11 of the Children Act 2004 in 2009 is also binding on local authorities in accordance with section 7 of the 1970 Act. For present purposes the relevant provisions are to be found in paragraphs 6.1.2 and 6.1.5 of the Practice Guidance, under the heading ‘Promoting healthy relationships and sexual health’:

“6.1.2

It is therefore critically important that children in care and care leavers are helped to gain the self esteem and skills needed to develop loving, respectful and safe relationships … Support around teenage … sexual health should be provided to all young people in and leaving care, regardless of their sexual orientation or preference and should not be affected by individual practitioner’s personal views.

6.1.5

…

Key elements of sex and relationship work

•

Information – children and young people are entitled to clear, relevant, age appropriate information which is accurate and non-judgemental.

•

…

•

Attitudes, values and beliefs – by exploring and challenging attitudes, values and beliefs, children and young people can be helped to develop a positive attitude to sexual health and well being.”

The defendant also, understandably, relies on the ‘welfare’ principle set out in the 1989 Act. Plainly, a local authority must have regard at all stages of the process to the welfare of the children for whom it is responsible, both children generally and each individual child. Equally plainly, the welfare of children being “looked after” by a local authority – we refer to the expression used in section 22(1) of the 1989 Act – is a matter of the very greatest importance. Initially Mr Weston focused on section 1, which makes the welfare of the child the “paramount consideration.” But section 1 applies only where a court is determining some question with respect to a child. The relevant duty of the local authority is that set out in section 22(3)(a) of the 1989 Act, namely “to safeguard and promote” the child’s welfare. After all, in the typical case a judge is concerned with only one or two or at most a very few children; in contrast, the typical local authority may be “looking after” scores or hundreds of children, and if each child’s welfare was paramount the burden on the authority would be insupportable and its duty impossible of performance.

We add that, if the defendant’s aim was to protect the interests or welfare of children, that is plainly a legitimate aim for the purposes of the Convention: Palau-Martinez v France [2004] 2 FLR 810, para [40]. The claim succeeded in that case because the decision of the French court that the children should live with their father, and not with their Jehovah’s Witness mother, was based decisively on its view of the mother’s religious practices and was discriminatory; although the protection of the children was a legitimate aim, there was, in the view of the Strasbourg court, no reasonably proportionate relationship between the means employed and the legitimate aim being pursued: paras [38]-[43].

Given their preponderant significance in determining the outcome of the present case it will be convenient before proceeding further to consider in some detail precisely what was decided in Islington London Borough Council v Ladele (Liberty intervening) [2009] EWCA Civ 1357, [2010] 1 WLR 955, and in McFarlane v Relate Avon Limited [2010] EWCA Civ 880, [2010] IRLR 872. We go first to Ladele.

In Ladele a registrar objected on religious grounds to ‘gay marriage’ and was disciplined by her local authority employer for refusing to conduct civil partnership ceremonies. Her complaints of discrimination were dismissed by the EAT: [2009] ICR 387.

Explaining why the claim based on alleged direct discrimination failed, Sir Patrick Elias P said this at para [64]:

“The proper hypothetical or statutory comparator here is another registrar who refused to conduct civil partnership work because of antipathy to the concept of same sex relationships but which antipathy was not connected or based upon his or her religious belief. If the Tribunal were to be satisfied that such a person would equally have been required to carry out civil partnership duties and would have been subject to the similar disciplinary process if he or she had refused, then that necessarily prevents any finding that there has been direct discrimination on grounds of religion or religious belief.”

He went on at paras [88]-[89]:

“In truth, all the evidence supported the council’s view that if she had been willing to carry out the ceremony … then no further action would be taken against her. She would then have been doing what was required of her. She could have kept her objection to same sex relationships, and there would have been no action taken against her merely because that was her view.

This is further supported by the fact that no action was taken against another employee who shared the same religious views but who accepted a different role which did not place her in this dilemma. Had the council’s belief objection been to the belief itself, then logically she should have been disciplined anyway. We can see no real evidence which begins to justify an inference that the claimant was subjected to disciplinary action because of her beliefs rather because she insisted on giving effect to those beliefs by refusing to participate in civil partnership work.”

The EAT then turned to consider the claim based on indirect discrimination. Explaining why that claim also failed, Sir Patrick Elias P said this at paras [111]-[112]:

“In our judgment, if one applies the statutory test, the council was entitled to adopt the position it did. Once it is accepted that the aim of providing the service on a non-discriminatory basis was legitimate – and in truth it was bound to be – then in our view it must follow that the council were entitled to require all registrars to perform the full range of services. They were entitled in these circumstances to say that the claimant could not pick and choose what duties she would perform depending upon whether they were in accordance with her religious views, at least in circumstances where her personal stance involved discrimination on grounds of sexual orientation. That stance was inconsistent with the non-discriminatory objectives which the council thought it important to espouse both to their staff and the wider community. It would necessarily undermine the council’s clear commitment to that objective if it were to connive in allowing the claimant to manifest her belief by refusing to do civil partnership duties.

We do not for one moment doubt the sincerity of her belief, nor her claim that in all other ways she treats people the same regardless of their sexual orientation. However, the issue is not … a matter of giving equal respect to the religious rights of the claimant and the rights of the gay community. It is whether, given the legitimate aim, the means adopted by the council to achieve that aim were proportional.”

He added at para [114] that Liberty, which had intervened in the proceedings, said that not only was the stance adopted by the council lawful, it was the only lawful position for them to adopt. “We do not have to decide that and we think it would be wrong to do so given that it is not an issue between the parties.”

Ms Ladele’s appeal to the Court of Appeal was dismissed: [2010] 1 WLR 955. Lord Neuberger MR, with whom Dyson LJ and Smith LJ agreed, referred with approval (paras [39], [38] and [49] respectively) to what Sir Patrick Elias P had said in the passages of his judgment at paras [64], [88] and [111] which we have set out. In relation to indirect discrimination the Master of the Rolls said this at para [52]:

“[I]t appears to me that the fact that Ms Ladele’s refusal to perform civil partnerships was based on her religious view of marriage could not justify the conclusion that Islington should not be allowed to implement its aim to the full, namely that all registrars should perform civil partnerships as part of its Dignity for All policy. Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington’s Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele’s refusal was causing offence to at least two of her gay colleagues; Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.”

The Master of the Rolls proceeded to hold (para [55]) that the Strasbourg jurisprudence on Article 9 supported the view that Miss Ladele’s desire to have her religious views respected should not be allowed

“to override Islington’s concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community.”

He observed (para [54]) that it is clear that the rights protected by Article 9 are qualified and he quoted what Lord Hoffmann had said in R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, para [50]: “Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing.” He went on (para [58]) to refer to Sahin v Turkey (2007) 44 EHRR 99 where the Grand Chamber had (para [105]) endorsed the proposition that “Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account.”

In McFarlane a marital and couples counsellor employed by the well-known national provider of relationship counselling services was disciplined after objecting on religious grounds to providing psycho-sexual therapy (PST) to homosexual couples. His complaints of discrimination were dismissed by the EAT in a decision which post-dated its decision in Ladele but preceded the decision of the Court of Appeal in the latter case: [2010] ICR 507.

Sir Nicholas Underhill P explained at para [17] why the claim based on alleged direct discrimination failed:

“The express finding that the reason why the Claimant was treated as he was was not because of his Christian faith but because of his perceived unwillingness to provide PST counselling to same-sex couples, and thus – this being the other side of the same coin – that he was treated in the same way as any non-Christian who had evinced such an unwillingness, was clearly open to the Tribunal on the facts, if not indeed inevitable. On the face of it, it is conclusive of the question of direct discrimination.”

He then addressed the contention that the Tribunal’s approach involved an illegitimate distinction between the immediate conduct which led to the act complained of – the (perceived) unwillingness to counsel same-sex couples – and the religious belief of which that conduct was an outward and visible sign, noting counsel’s argument that for religious belief to be effectively protected it is necessary to prevent discrimination on the ground not only that a belief is held but that it is manifested, the two being, it was said, inseparable. Explaining why that argument could not be accepted, he continued at para [18]:

“It is of course correct that persons with a religious belief are likely to manifest that belief in their conduct. We further accept that in some cases where an employer objects to such a manifestation it may be impossible to see any basis for the objection other than an objection to the belief which it manifests; and in such a case a claim by the employer to be acting on the grounds of the former but not the latter may be regarded as a distinction without a difference. But in other cases there will be a clear and evidently genuine basis for differentiation between the two, and in such a case the fact that the employee’s motivation for the conduct in question may be found in his wish to manifest his religious belief does not mean that that belief is the ground of the employer’s action.”

He then turned to explain in para [20] why there is no inconsistency between that conclusion and the requirements of Article 9:

“Mr Diamond referred us to para 31 of the judgment of the European Court of Human Rights in Kokkinakis v Greece (1993) 17 EHRR 397, where the Court emphasised the importance of Article 9 and observed that without the right to manifest one’s religion the rights enshrined in it “would be likely to remain a dead letter”. But the subsequent case law makes clear that it does not follow that an employee has an unqualified right to manifest his religion. In Kalac v Turkey (1997) 27 EHRR 552 the Court stated plainly (see para 27, at p 564) that:

“Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an application may need to take his specific situation into account.”

The same observation was repeated in Sahin v Turkey (2005) 44 EHRR 99, at para 66. In R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 Lord Nicholls described this as representing the consistent position of the Strasbourg jurisprudence: see para 30 at p 261A. Likewise, in R (S B) v Governors of Denbigh High School [2007] 1 AC 100 Lord Bingham referred, at para 22 of his speech, to both Kalac and Sahin, together with the earlier decision in Ahmad v United Kingdom (1981) 4 EHRR 126, and continued, at para 23 (p 112 G-H):

“The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to observe his or her religion without undue hardship or inconvenience.”

Mr Diamond attached particular importance to the decision in Thlimmenos v Greece (2000) 31 EHRR 411; but we could find nothing in it which contradicted the view of the authorities expressed above.”

Turning to explain why the claim based on alleged indirect discrimination likewise failed, Sir Nicholas Underhill P referred at para [25] to the particular importance Mr Diamond had attached in his submissions to the decision of Krieger J, sitting in the United States District Court for the District of Colorado, in Buonanno v A T & T Broadband LLC (2004) 313 F Supp 2^nd 1069, applying the principle set out in American case law to the effect that employers are obliged to afford reasonable accommodation to their employee’s religious beliefs. He continued at paras [27]-28]:

“The tribunal in Ladele was referred to essentially the same authorities on Article 9 as we were. (Mr Diamond pointed out that it was not, apparently, referred to Thlimmenos, but we can see no significance in that.) But it concluded that they were of no real assistance: see paras 119-127.

In our view the reasoning at para 111 of the judgment in Ladele applies directly to the present case. The aim on the part of the Council which was held to be legitimate is substantially equivalent to that conceded in the present case … The essence of Elias P’s analysis is that in a case where a body such as the Council has such an aim it may properly insist on all employees participating in the services in question, even if to do so is in conflict with their religious beliefs, because to do otherwise would be inconsistent with the principle which it espouses. If that is the case for a local authority, we can see no material distinction in the position of a body such as Relate. It is true that any assessment of proportionality in a case such as this must be sensitive to the facts of the particular case, and in that sense the decision in Ladele is not direct authority on anything save its own facts. But clearly it is important that substantially similar situations should be treated in the same way, and we can see no real difference between the situation considered in Ladele and that in the present case.”

An application for permission to appeal to the Court of Appeal was dismissed by Laws LJ: [2010] IRLR 872.

As we have already mentioned, in the course of that application Mr Diamond mounted what Laws LJ described (para [14]) as “vigorous assaults” against the decision of the Court of Appeal in Ladele. Mr Diamond submitted to Laws LJ that Ladele had been decided by the Court of Appeal per incuriam because it had failed properly to consider its earlier decisions in R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926, [2003] QB 1300 and Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932, [2005] IRLR 811. He asserted that the court in Ladele had ignored the very principle of legality itself, and that its judgment was “unconstitutional and contrary to the rule of law.”

Laws LJ held that Ladele was binding. He explained (para [15]) why there was nothing in the reasoning in either Williamson or Copsey which conflicts with Ladele and said (para [16]) that it was impossible to contend that Ladele was decided per incuriam. He explained why he was dismissing the application for permission in para [27]:

“The applicant’s argument is closed against him by this court’s decision in Ladele, from which this case cannot sensibly be distinguished. There is no more room here than there was there for any marginal balancing exercise in the name of proportionality. To give effect to the applicant’s position would necessarily undermine Relate’s proper and legitimate policy.”

We agree with Laws LJ. Ladele is, in our judgment, plainly binding upon us. It was also in any event, we would respectfully add, correctly decided.

So far as is material for present purposes, we detect no differences in the reasoning of the EAT and the Court of Appeal in Ladele and McFarlane. The judgments of Sir Patrick Elias P, Sir Nicholas Underhill P, Lord Neuberger MR and Laws LJ, from which we have deliberately quoted at some length, are all to the same effect. They are the law. The principles we have to apply are set out very clearly in the various extracts from those judgments to which we have referred. We see no need to add to the jurisprudence or to seek to express in our own words what has been so clearly set out by others. Indeed, it is probably better that we do not.

We return to the issues in the present case.

Mr Diamond, on behalf of the claimants, submitted that their views on sexuality are not a legitimate fostering concern and that the only legitimate fostering concern is protection of the welfare of the child. This, he submitted was the protection of the welfare of individual children and not of children in the abstract. He relied on the fact that the defendant acknowledged that fostering demand exceeded the supply of foster carers and suggested that the effect of the defendant’s approach made the position worse by reducing the pool of approved foster carers. The defendant’s position is that the shortage is of full-time foster carers and not of respite carers, and that the defendant has a surplus of respite carers. It should, however, be noted that this is only made in the defendant’s detailed grounds and there is no evidence before the court to this effect.

Although the public sector equality duty is not yet in force, it is to be brought into force in April 2011 and we consider its impact. As to the draft regulations, they are not irrelevant, but we are primarily concerned with policies that are now in force and were in force while the claimants’ application was being considered. During the hearing, as we have mentioned, Mr Diamond confirmed that the claimants did not challenge any of the statutes relied on by the defendant or the legality of the policies. His challenge was to the way the defendant applied the legislation and the policies to the claimants’ application.

We accept the defendant’s submission that there is in principle no difference between long-term fostering and respite care as far as the broad principles of suitability of foster carers are concerned, although there will be particular questions that arise from, for example, the fact that much respite care occurs at weekends. In relation to respite fostering, Mr Weston submitted that, if long-term placement is with or is to be contemplated with a homosexual couple, the attitude to such couples of the carers who have undertaken the respite fostering is of relevance. A similar submission is made about the attitude of the carers to parents of a child who are homosexual.

Moreover, the Statutory Guidance on Promoting the Health and Well-Being of Looked-After Children issued under section 10 of the Children Act 2004 provides, as we have seen, that support in relation to the sexual health of looked-after children should be provided regardless of the children’s sexual orientation and should not be affected by individual practitioner’s personal views. If children, whether they are known to be homosexuals or not, are placed with carers who, in the language used by way of description in Ms Monaghan’s written submissions, evince an antipathy, objection to or disapproval of, homosexuality and same-sex relationships, there may well be a conflict with the local authority’s duty to “safeguard and promote” the “welfare” of looked-after children. There may also be a conflict with the National Minimum Standards for Fostering Services and the Statutory Guidance. Religion, belief and sexual orientation are protected characteristics under the Equality Act 2010: see sections 4, 10 and 12. While as between the protected rights concerning religion and sexual orientation there is no hierarchy of rights, there may, as this case shows, be a tension between equality provisions concerning religious discrimination and those concerning sexual orientation. Where this is so, Standard 7 of the National Minimum Standards for Fostering and the Statutory Guidance indicate that it must be taken into account and in this limited sense the equality provisions concerning sexual orientation should take precedence.

The case as pleaded and the skeleton arguments of the claimants and the defendant refer to the Equality Act 2006 and the Equality Act (Sexual Orientation) Regulations 2007. However, the relevant provision now is the Equality Act 2010, which materially replicates the provisions of the earlier legislation, although from next April public authorities will also be subject to the wider public sector equality duty to which we have referred.

The prohibition on discrimination in the provision of goods and services contained in section 29 of the 2010 Act exempts the provider of foster and other forms of home care from its operation: see Schedule 3 paragraph 15. But there is no similar exemption in favour of the public authority or from the public sector equality duty imposed on public authorities by section 149 of the 2010 Act. The exemption given by paragraph 15 of Schedule 3 to the duty in section 29 means that a provider of home care is not subject to the prohibition on discrimination and, for example, as indicated in the Statutory Guidance, a Muslim family could agree to foster only Muslim children. This, it is submitted by Ms Monaghan, allows the particular needs of a child to be met and the disadvantages of that child to be ameliorated. She also submitted that this provision permits “positive” discrimination but not negative discrimination – on which see section 13 of the Equality Act 2010. However, it does not permit less favourable treatment by the public authority. Seemingly, this gives rise to what might be seen as a difficulty. For if the carer is allowed to agree only to foster on a ground that would otherwise be discriminatory, but the public authority is not allowed to discriminate in its provision of services, it is difficult to see how the former can be permissible without the latter, unless paragraph 15 is only to bite where no public authority is involved and the fostering agency is a private body. However, we need not explore this any further, for nothing in the present case turns on it.

Another relevant factor is the distinction between what can be called the requirement of “generic appropriateness” of a person to be a foster carer and what may be called “individual appropriateness”, that is the appropriateness of an individual placement with a foster carer. The former is addressed in the requirement in Regulation 34 of the Fostering Services Regulations that the local authority approves a person as a foster parent. The latter is seen in the requirement in Regulation 35 that the local authority satisfies itself that the welfare of each child should continue to be suitably provided by the placement of that child.

The materials relied on by Mr Weston, including in particular the various policies set out in the National Minimum Standards for Fostering, the Statutory Guidance and the defendant’s own documents, all go to emphasise the need to value diversity and promote equality and to value, encourage and support children in a non-judgemental way, regardless of their sexual orientation or preference. That duty does not apply only to the child and the individual placement, but to the wider context, including the main foster carer, a child’s parents and the wider family, any of whom may be homosexual. In these circumstances it is quite impossible to maintain that a local authority is not entitled to consider a prospective foster carer’s views on sexuality, least of all when, as here, it is apparent that the views held, and expressed, by the claimants might well affect their behaviour as foster carers. This is not a prying intervention into mere belief. Neither the local authority nor the court is seeking to open windows into people’s souls. The local authority is entitled to explore the extent to which prospective foster carers’ beliefs may affect their behaviour, their treatment of a child being fostered by them. In our judgment the local authority was entitled to have regard to these matters; indeed, if the local authority had failed to explore these matters it might very well have found itself in breach of its own guidance and of the National Minimum Standards for Fostering and the Statutory Guidance to look no further.

The claimants are clearly protected against direct and indirect discrimination based on their religious beliefs. The question is whether the treatment of their application by the defendant is because of their stance on sexuality or sexual orientation or because of their religious beliefs. If it is the former then, applying the established law of the Strasbourg Court and the national courts there is no religious discrimination. As to direct discrimination, there are two relevant questions. The first is whether the treatment is because of the religion or belief. The second is whether the treatment afforded is less favourable than that afforded other people where there is no material difference between the circumstances of the individual affected and the person with whom that individual is compared.

If the defendant’s treatment is the result of the claimants’ expressed antipathy, objection to, or disapproval of homosexuality and same-sex relationships it is clear, on authorities which bind us, namely the decisions of the Court of Appeal in Ladele and McFarlane, that it would not be because of their religious belief. Moreover, the defendant’s treatment of the claimants would not be less favourable than that afforded other persons who, for reasons other than the religious views of the claimants, expressed objection to, or disapproval of, homosexuality and same-sex relationships contrary to the National Minimum Standards for Fostering and the defendant’s various policies.

As far as indirect discrimination is concerned, by section 19 of the Equality Act 2010:

“(1)

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)

For the purpose of subsection (1) a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –

(a)

A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)

It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)

It puts, or would put, B at that disadvantage, and

(d)

A cannot show it to be a proportionate means of achieving a legitimate aim.”

Section 19(3) provides that “religion or belief” and “sexual orientation” are both “protected characteristics.”

It is not conceded on behalf of the defendant and the Commission that a requirement that a foster carer comply with the National Minimum Standards for Fostering, in particular with Standard 7, and with any guidance or equal opportunities policy which requires respect and positive attitudes to be demonstrated towards homosexuality and same-sex relationships, is indirectly discriminatory against persons holding certain religious beliefs. This is because under the existing case law (see Eweida v British Airways [2010] IRLR 322) it is necessary to show “particular disadvantage” or “group” disadvantage to Christians or the particular denomination of Christianity and it is not conceded this has been shown here. However, on the assumption that such a requirement or requirements are indirectly discriminatory, it is clear on the authorities that compliance with anti-discrimination legislation prohibiting sexual orientation discrimination and the defendant’s equal opportunities policies to the same effect, together with the need to ensure the non-discriminatory service provisions which is the subject of the section 19 duty will amount to justification: see, again, Ladele and McFarlane.

How is this to be fitted into the Article 9 right to freedom of religion and to manifest that religion or belief in “practice and observance”? The answer is clear from the authorities to which we have already referred, which indicate that Article 9 only provides a “qualified” right to manifest religious belief and that interferences in the sphere of employment and analogous spheres are readily found to be justified, even where the members of a particular religious group will find it difficult in practice to comply: see Sahin v Turkey (2005) 44 EHRR 99. This will be particularly so where a person in whose care a child is placed wishes to manifest a belief that is inimical to the interests of children: see R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2AC 246.

Moreover, in the present context, it is common ground that there is no right to foster: see EB v France (2008) 47 EHRR 21. The claimants voluntarily applied for approval and, thus agreed to subject themselves to in particular the National Minimum Standards and Standard 7 of those Standards, which they do not question in these proceedings. For an example of the approach of the Strasbourg Court in such cases see Kalac v Turkey (1997) 27 EHRR 552.

Before us, Mr Diamond deployed, in much the same way as he has done on previous occasions to which we have referred above, arguments based on Thlimmenos v Greece (2000) 31 EHRR 411, Buonanno v A T & T Broadband LLC (2004) 313 F Supp 2^nd 1069, the decision of the Court of Appeal in R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926, [2003] QB 1300 (but not that of the House of Lords: [2005] 2 AC 246), and Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932, [2005] IRLR 811. Those arguments find no more favour with us than they did previously with Sir Nicholas Underhill P and Laws LJ. We are content to adopt their reasoning. Further elaboration is unnecessary.

Mr Diamond also sought to rely upon In re G (Adoption: Unmarried Couple) [2009] UKHL 38, [2009] 1 AC 173. That case, in our judgment, does not assist him, nor does it throw useful light upon anything we have to decide. In the first place, the case involved a bar which was both absolute and based on pure status, not, as here, a discretionary bar based on belief and practice. Second, the case involved no question of domestic statutory discrimination law. The issue was as to the legality of subordinate legislation incorporating a fixed rule which absolutely precluded unmarried couples from being assessed as potential adoptive parents. The House of Lords held the rule to be irrational, and therefore unlawful, as contradicting the fundamental principle of adoption law that the best interests of each child is the most important consideration to which regard has to be had on a case by case basis: see Lord Hoffmann, paras [16], [18], Baroness Hale of Richmond, para [112].

The way this ground is stated makes it utterly unarguable. First, it is not the defendant’s position that the majority of the population is to be excluded from being approved for fostering because of their Christian beliefs. Although there is no evidence to this effect, it is, as we have said, stated on behalf of the defendant, and we are for present purposes prepared to assume that this is so, that the defendant has approved foster carers who are “very committed Christians who hold to orthodox beliefs and devout Muslims who are similarly committed to their religion” where “those carers are able to value diversity notwithstanding their strongly held religious beliefs.” Second, as the literature submitted with the Commission’s case and the material referred to by Mr Diamond in riposte shows, there is no consistent opinion as the desirability or benefit of same-sex couples fostering children. The material submitted by the Commission is not strictly evidence. But it does show a body of opinion which considers that a child or young person who is homosexual or is doubtful about his or her sexual orientation may experience isolation and fear of discovery if their carer is antipathetic to or disapproves of homosexuality or same-sex relationships. The material also indicates that there is support in the literature for the view that those who hide their sexual orientation or find it difficult to “come out” may have more health problems and in particular mental health problems. Whether those views are ‘right’ or ‘wrong’, whether the claimants or the Commission have the preponderance of expert opinion on their side, is not the point – and it is not a matter on which we express any views. But in the light of such literature, together with the steer given by the National Minimum Standards, it cannot be said that an examination of the attitudes to homosexuality and same-sex relationships of a person who has applied to be a foster carer is Wednesbury unreasonable.

We have stated our misgivings about the exercise of the jurisdiction to consider whether to grant any (and if so what) declaratory relief. The defendant has taken no decision and there is likely to be a broad range of factual contexts for reaching a particular decision, the legality of which will be highly fact-sensitive. Moreover, the parties have: (a) been unable to agree on an appropriately focused question for the court to address, (b) each identified questions that do not raise a question of law that can be answered with anything approaching a simple ‘yes’ or ‘no’, and (c) furnished the court with no evidence.

On behalf of the claimants it is said that the material the Commission filed in evidence is highly controversial, but no rebutting evidence has been filed. Mr Diamond has sought to rely on material which is unsupported by any evidential evaluation. We are not in a position to assess, let alone evaluate, any of the material relied on. This, together with the difficulties we identify in [107], has meant that such conclusions as we have been able to reach in [90]-[105] must be seen as qualified in the light of the nature of the material before us and the way the case was presented.

For the reasons given in [107] we have concluded that we should make no order. Moreover, in the light of the cumulative effect of our conclusions in [90]-[106], in particular, contrary to the submissions on behalf of the claimants, our conclusions that the attitudes of potential foster carers to sexuality are relevant when considering an application for approval and as to the effect of the decisions of the Court of Appeal in Islington London Borough Council v Ladele (Liberty intervening) [2009] EWCA Civ 1357, and McFarlane v Relate Avon Limited [2010] EWCA Civ 880, we have also concluded that we should not grant permission.