Matthew Smith & Anor v Manchester City Council

The claimants are a married couple with strong evangelical Christian beliefs. They want to foster children. To this end, they approached the defendant (“the Council”). However, they did not make it past the first stage of the assessment of their suitability. One of the reasons for this was, in short, that the social workers responsible for rejecting their application had concluded that the claimants would find it “quite difficult to be proactive in promoting a diverse view of the world”.

Of particular concern was that the claimants believe that homosexuality and abortion are wrong and they hold gender critical views. They were liable, if occasion were to arise, to express such views to any children entrusted to their care.

The claimants were very unhappy with this outcome and started proceedings in the Manchester County Court claiming remedies under the Human Rights Act 1998 and the Equality Act 2010.

The matter came for trial before His Honour Judge Sephton KC (“the judge”) who found against the claimants in a judgment of 12 August 2024.

This is my judgment on their appeal against that decision.

There is no dispute about the facts in this case and the legal issues have narrowed since the matter came before the court below. The background is set out with characteristic clarity in the judgment of the judge below and my summary is intended to encompass only the most salient features of the evidence to which he made detailed reference.

Witnesses gave oral evidence at trial and no issue is taken with the accuracy of the judge’s summary of their evidence or his assessment of their credibility.

As committed Evangelical Christians, the claimants had strongly held beliefs the most significant of which were expressly pleaded to comprise:

“a.

The Christian religion;

b.

Belief in the binary nature of men and women and therefore a lack of belief in ‘gender fluidity’ and a lack of belief that a person can change their biological sex/gender. Although it is recognised that a significant number of people, including children, will suffer from Gender Dysphoria and have differing sexual orientations;

c.

Belief in marriage as a divinely instituted life-long union between one man and one woman;

d.

A belief in the truth of the Bible, and in particular Genesis 1 v 27: “God created man in His own image, in the image of God He created him; male and female He created them” and the affirmation of this by the Lord Jesus Christ in Mark 10 v 6 “But from the beginning of the creation, God made them male and female.”;

e.

A belief that although the Claimants may disagree with persons from different faiths and/or sexual minority lifestyles and/or persons choosing to transition their gender, they must be loving and show love to such individuals and not be judgmental to such persons;

f.

A belief in sanctity of life from conception to natural death, and opposition to abortion;

g.

Lack of belief in ‘diversity’, understood as an ethical requirement to promote and celebrate a wide variety of faiths, sexual lifestyles, gender identities, and life choices;

h.

The Christian duty to bear witness in words and deeds.”

The claimants first applied to the Council to become foster parents in August 2017. At that stage, Mike Gennery, a social worker employed by the Council, advised the claimants not to proceed with their application because, at that time, they were about to move house and Mrs Smith was pregnant. The claimants accepted this advice and did not persist in their application. This informal procedure, which avoids the need for a formal assessment, is referred to colloquially by the Council, as “counselling out”.

However, the claimants did not remain “counselled out” for very long. In August 2019 they expressed renewed interest to the Council in acting as foster parents. By then, there were five children of the family in the Smith household: Callum (who was then aged 20 and was expected to move out in April 2020); Natasha (who was then 18); Phoebe (aged 7); Naomi (aged 3) and Liberty (aged 1).

The children were and/or had been home-schooled using a curriculum based on the Accelerated Christian Education (“ACE”) program of which more later.

On 25 June 2019, Yvonne Smith, a social worker employed by the Council, spoke to Mr Smith over the telephone. Ms Smith made a contemporaneous note of the discussion the accuracy of which is not in dispute. She, like Mr Ginnery before her, tried to counsel the claimants out. She noted that some of the children were very young and said that maybe he should wait until they were older. She also told Mr Smith that a foster child would not be permitted to home school. She invited Mr Smith to consider how a placement might affect his own children. She recorded that “Matthew had answers for everything” and that he was very keen that the Council should make a home visit. She concluded:

“My opinion overall is that Matthew is ultra keen for himself and his wife to become foster carers and” presciently “he is not going to go away without a fight? I feel that he (and his wife) might have some potential - e.g., experienced/committed; child focused/family orientated, good advocacy/negotiation skills; etc., but I just think that now might not [be] the right time; given the ages of his children; and I also feel that the "Home Schooling" could prove to be problematic/incompatible with foster children; etc???”

Ms Smith then discussed the claimants’ application with her colleague, Joy Dunbavin. Ms Dunbavin had had a long career as a social worker, most recently as Team Manager for the Council’s Recruitment and Assessment Team, Fostering Services. She gave evidence at the trial. The judge formed the view that she was a highly experienced professional who was a conscientious and careful witness but she never fully understood the claimants’ point of view and, indeed, the claimants never fully understood hers.

Ms Dunbavin told the court below that, under normal circumstances, the number and ages of the children in the Smith household at the time of their enquiry would have meant an automatic ‘no’ to proceeding to the next stage. She said that Yvonne Smith was “90% against.”

Nevertheless, it was felt that Mr Smith would not accept an outright ‘no’, so it would be worth proceeding to an initial home visit to see if the family could offer even a limited resource to the Council.

On 8 July 2019, Emma Kerr, another one of the Council’s social workers, attended the claimants’ home. She made a contemporaneous note which the judge found to be accurate. Ms Kerr explained that the Council had concerns because the Smiths already had three children under the age of 8 and that, normally, applications would not be progressed in these circumstances.

The claimants told her that their children were home-schooled under the ACE curriculum. Ms Kerr said that she was not familiar with ACE and would discuss this with her manager. Ms Kerr said that there was a “Skills to Foster” course due to start in the coming weeks and she would suggest that the claimants could be put forward to attend it although the decision about progressing to the next stage would be made by her team manager.

She told Mr Smith that she had found the visit to have been positive overall and that the Smiths had skills to offer.

Ms Kerr provided the following analysis sometime after her home visit:

“Overall I found the applicants very keen to foster, they have considered all aspects of fostering and the practicalities involved. The couple have an eight seater car to use for the fostering role. There are no concerns in regards to home conditions. Michelle shared she also completed a 100 day placement on a social work degree which gives her additional knowledge. Michelle explained this was with Manchester City Project a homeless project. Michelle did not complete the degree as she stated there was 'no pressure to be at work and her own family came first'. Matthew's job allows him the flexibility to support Michelle with transporting children to and from school. However, the age range of their birth children is a concern and the compatibility of their birth children living alongside a looked after child who attends mainstream school. Following the visit I exerted my professional curiosity before feeding back to my team manager in regards to the ACE curriculum. I found this was the Accelerated Christian Education Curriculum, I then presented all of this information to my team manager Joy Dunbavin in order for her to make an informed decision of the next stage.”

The information Ms Kerr discovered about the ACE curriculum came from two newspaper articles, one of which was shown to the judge. It stated that ACE textbooks taught children that girls must obey men and their primary role in life is to get married and have children. A wife is expected to obey, respect and submit to the leadership of her husband, serving as a helper to him and be available all times day or night. One textbook stated that “homosexual activity is another of man's corruptions of God's plan” and that “some people mistakenly believe that an individual is born a homosexual and his attraction to those of the same sex is normal.” Creationism was taught as fact.

Ms Dunbavin was concerned about these articles. She discussed the ACE curriculum with the designated Education Specialist and the Virtual Head, an expert in education for looked-after children. However, none of the people she spoke to was familiar with the ACE program and so, on 25 July 2019, Ms Dunbavin spoke to Mr Smith about it.

Her undisputed recollection of the conversation was:

“We discussed his beliefs. He stated that he was a Christian, and as such he did believe in Creationism. He didn't ‘necessarily’ agree with termination, and he didn't agree with ‘a certain way of living’, stating ‘I believe homosexuality is wrong’.”

Mr Smith suggested to Ms Dunbavin that she speak with his wife, who was more involved in undertaking and supervising the home schooling.

After this call, Mr Smith formed the impression that the Council was going to reject their application because of their faith. He contacted Christian Concern, an organisation that supports Evangelical Christians and seeks to promote their values.

The claimants thereafter decided to make covert recordings of their dealings with the Council. Mr Smith accepted that the content of their discussions was influenced by their desire to obtain evidence to support their suspicion that the Council was discriminating against them for their faith. Transcripts of the recordings were in evidence at trial.

Ms Dunbavin called Mrs Smith on 31 July 2019. The transcript of the recording revealed that:

On 8 September 2019, Ms Dunbavin called Mr Smith to tell him that the Smiths’ application had been unsuccessful. Their conversation was, again, recorded.

Ms Dunbavin gave three reasons for rejecting the application:

On 1 October 2019, the Smiths wrote a letter asking the Council to reconsider its decision. Ms Dunbavin decided to undertake another home visit. She and Ms Kerr attended the Smiths’ home on 20 November 2019. The conversation was, again, recorded covertly. In the course of the discussion:

The Council confirmed its decision in a letter (wrongly dated 25 October 2019) which was probably sent on 25 November 2019. It stated, in so far as is relevant:

“The decision not to proceed was based on you having a busy household with three children under the age of eight (one, four and seven) which would limit the number of referrals we could look at matching with you and limit our ability to place children alongside your children safely. Whilst home schooling your children wouldn't by itself preclude you from fostering children, this isn't something we would agree to for looked after children. This may cause a child in foster care to feel different from or excluded from how other children in the family are taught and supervised.

We discussed the Accelerated Christian Education curriculum you were using to home school your children and how attending worship as a family was important to you. Some children or their birth parents may not wish to attend your family's place of faith and this could also impact on a child if they needed to be cared for by someone else in your absence.

We discussed how Manchester City Council is looking for prospective foster care households that are proactive in promoting and providing a culture of acceptance to any child or their family members and positively promote a wide range of lifestyles and partnerships. We therefore require our foster carers to show evidence of their commitment to diversity and an understanding that it is an integral part of foster care. Your beliefs didn't seem compatible with what Manchester requires from our foster carers.

After a further discussion with the Head of Service the decision remains that Manchester will not be progressing your interest in fostering further at this time.”

In her witness statement, Ms Dunbavin explained that she did not believe that the Smiths, who had stated that they believed that homosexuality is wrong, could positively promote the identity of a child who identified as gay or transsexual, as she understood to be required by Standard 2 in the National Minimum Standards, to which I will return. She said that the Smiths failed to recognise the potential for conflict between their beliefs and the need positively to support a child. Ms Dunbavin believed that the Smiths would struggle to support a child who wished to consider abortion, which potentially contravened Standard 6 of the National Minimum Standards. She explained the difficulties around a looked-after child attending school (which they would be required to) when the birth family was home-schooled. She thought that the Smiths failed to recognise the issues that home-schooling could raise.

In her oral evidence, she explained that children are perceptive and recognise when foster parents have strong beliefs which are in conflict with the child’s own approach. Her own experience and learned material supported the conclusion that strong beliefs can interfere with the way in which a looked-after child communicates with his or her foster parents.

The evidence revealed that only a small proportion of those who express an interest in fostering go on to be approved. Recently, out of no fewer than 807 enquiries to the Council about becoming foster carers only thirteen applicants went on to attend the “Skills to Foster” course and eleven of those proceeded to final assessment and went on to become foster carers. None of those households already had three young children or undertook home schooling. However, five of the eleven successful applicants were identified as “being of faith”. All of the applicants were assessed in accordance with the National Minimum Standards, and on each occasion the Council inquired whether the prospective foster parents could positively promote identity and diversity. None of the successful candidates expressed any opinions about homosexuality or abortion being 'wrong', or that homosexuality was a 'lifestyle choice'.

Ms Dunbavin asserted that Mr and Mrs Smith were not assessed any differently from any other prospective foster carers.

Section 22 of the Children Act 1989 imposes a general duty on local authorities in relation to children looked after by them which includes an obligation, under section 22(3)(a), to safeguard and promote their welfare.

Section 33(6) provides that:

“While a care order is in force with respect to a child, the local authority designated by the order shall not—

(a)

cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made…”

More detail is to be found in the Fostering Services (England) Regulations 2011 (“the 2011 Regulations”) which were made in the exercise of powers conferred under Schedule 2 to the Children Act 1989.

Regulation 26 of the 2011 Regulations sets out rules about the assessment of prospective foster parents. Under Regulation 26(1B), if the Council considers that an applicant to be a foster parent is unsuitable, it must notify the applicant in writing, giving its reasons for that decision.

The Department for Education issued National Minimum Standards for fostering services pursuant to section 23 of the Care Standards Act 2000. These standards must be taken into account in the making of any decision by the Council’s regulator (see Care Standards Act 2000, section 23(4)(a)) and thus, in effect, prescribe minimum standards for the Council.

Standard 2 provides, in so far as is relevant:

“Outcome:

Children have a positive self view, emotional resilience and knowledge and understanding of their background.

2.1)

Children are provided with personalised care that meets their needs and promotes all aspects of their individual identity.

2.2)

Foster carers are supported to promote children’s social and emotional development, and to enable children to develop emotional resilience and positive self-esteem.”

The Secretary of State has issued guidance on Fostering Services under section 7 of the Local Authority Social Services Act 1970 with which the Council is obliged to comply. So far as is material, the Guidance provides as follows:

“Identity and diversity, respect and individuality

3.43.

Many looked after children have low self worth and a very poor sense of their own identity. Many come from families that are subject to multiple problems and marginalisation. The Human Rights Act 1998 and the Equalities Act 2010, as well as the 1989 Act all require that every individual child who is looked after should be cared for in a way that respects, recognises, supports and celebrates their identity and provides them all with care, support and opportunities to maximise their individual potential.

3.44.

Foster carers and fostering services should ensure that full attention is paid to the individual child’s gender, faith, ethnic origin, cultural and linguistic background, sexual orientation and any disability they might have. Children should be encouraged and supported to have positive views of themselves and to be proud of their identity and heritage (standard 2).”

Perhaps it is a statement of the obvious but, by way of proper reinforcement, paragraph 5.29 provides:

“No one has a right to be a foster carer, and fostering decisions must focus on the interests of the child.”

The claimants’ claims against the Council were brought under section 7(1) of the Human Rights Act 1998 (“HRA”) alleging a breach of Articles 9 and 10 of the European Convention on Human Rights (“ECHR”) and under section 29(6) of the Equality Act 2010 (“EqA”). The judge below dealt first with the human rights claims and then with the EqA claim. It is not only convenient but also more appropriate that I should address the issues in the same order. I will deal with the relationship between the two regimes later in this judgment when I turn to deal with the EqA claim.

Furthermore, as I have already noted, the claimants’ case has narrowed since the matter came before the judge below and I have, therefore, confined my observations to those disputes which remain.

Article 9 of the ECHR provides:

“Freedom of thought, conscience and religion

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.”

Article 10 provides:

“Freedom of expression

1.

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

I take the view that, although paragraph 2 of Article 10 is not identically worded to Article 9(2), for the purposes of this case it is not materially different in its effect. I will therefore confine my analysis to the application of Article 9. This was the approach taken by the judge below and, in my view, he was right.

Section 3(1) of the Human Rights Act 1998 provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

Section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.

Section 7(1) provides that a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may bring proceedings against the authority under this Act in the appropriate court if he is a victim of the unlawful act.

In short, the judge found that:

His reasoning under the Article 9 issue was based upon his conclusion that this was a case concerning not the freedom of the claimants to believe in the precepts of their evangelical faith but the manifestation of such beliefs. As such, their rights were qualified under paragraph 2 of Article 9.

He went in to find, in summary, that:

In my view, the judge was plainly right to find:

The central issue is therefore whether the judge was also right to conclude that the interference was justified.

The case of Eweida v United Kingdom (2013) 57 EHRR 8, was concerned with the issue of a person’s right to manifest a belief—that is, to express it publicly or otherwise demonstrate it, in their actions, their clothing or appearance or otherwise.

Para 80 of the judgment provides:

“Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in article 9(1), freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practise in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis v Greece (1994) 17 EHRR 397, para 31 and also Şahin v Turkey (2005) 44 EHRR 5, para 105). Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in article 9(2). This second paragraph provides that any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.”

The phrase “necessary in a democratic society” requires an assessment of the proportionality of the limitation in question.

The proper approach to such an assessment is set out in the decision of the Supreme Court in Bank Mellat v HM Treasury (No 2) [2014] AC 700. At para 20 of his judgment Lord Sumption observed:

“…the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them. Before us, the only issue about them concerned (iii), since it was suggested that a measure would be disproportionate if any more limited measure was capable of achieving the objective. For my part, I agree with the view expressed in this case by Maurice Kay LJ that this debate is sterile in the normal case where the effectiveness of the measure and the degree of interference are not absolute values but questions of degree, inversely related to each other. The question is whether a less intrusive measure could have been used without unacceptably compromising the objective.”

The six grounds of appeal on the EqA and Human Rights issues respectively deal with the judge’s findings in the reverse order of the headings under which he sets them out in the judgment. As I have already noted, I consider that it is both more apt and convenient to address the issues in the same order as did the judge. I therefore start with ground 4.

“The Learned Judge erred in his approach to the Bank Mellat analysis of Convention justification, in ruling in para 56(a) that “The “measures” in the present case are the legal framework for fostering, not how those measures are applied in an individual case. The question for the court is whether, given the wide margin of appreciation accorded to the authorities in devising the measures, less restrictive steps ought to have been prescribed”. This is the opposite of the correct legal position. The Claimant’s claim was no challenge to the legal framework but a s. 7(1) HRA claim against the Defendant, a public authority, whose decision in this individual claim was subject to s. 6 HRA and who was therefore required to interpret and apply the legal framework in a Convention-compatible manner.”

The Bank Mellat test of justification here referred to is that articulated by Lord Sumption in the passage at para 20, to which I have already referred, I consider that there is some merit in the contention that, in this case and on this issue, the court’s focus should be upon the measures taken by the Council acting within the structures of the legal framework and not upon the content of the framework itself. There is no pleaded challenge to the content of the regulations, minimum standards or guidance. The claimants’ case is that the application of the legal framework did not preclude the social workers involved from progressing the claimants’ application to become foster parents and that, to establish proportionality, the Council could and should have approached the claimants’ application with a greater degree of flexibility. In this regard, the claimants’ position reflects that which applied in the case of Johns v Derby City Council [2011] EWHC 375 (Admin) paras 58 and 59. The matter does not, however, end there.

The Council rightly points out that the adequacy of the legal framework is not the only ground upon which the judge decided against the claimants on the application of the third Bank Mellat criterion. Paragraph 56(b) of the judgment provides:

“Mr Phillips’s submission is also unrealistic on a factual basis. I heard that the Council may need to be able to place children at short notice because of an emergency, in which case it may well be impractical to undertake a risk assessment of the kind Mr Phillips proposes. Mr Phillips’s submission also fails to address the position of a child (who is likely to have “a very poor sense of their own identity”) who is placed with the Smiths and later develops a sense of their identity as homosexual or transgender: I am not persuaded that a risk assessment would obviate the potential clash between a homosexual child and the Smiths who believe that “homosexuality is wrong”.”

This finding is not the subject of challenge on this appeal and constitutes a free standing justification for the judge’s finding on the application of the third Bank Mellat criterion.

This gives rise to three related questions:

The Council advanced the proposition that it was not open to me to substitute my own opinion on proportionality for that of the lower court unless I could go so far as to conclude that it was wrong in the narrow sense. It was not permissible for me simply to re-decide the matter because I would have reached a different view.

The legal position has, however, since been revisited in Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] 3 W.L.R. 346 which was first reported after the hearing of this appeal and which has, therefore, been the subject of further written submissions from the parties.

In that case, the Supreme Court observed (in so far as is material and with some references to authority omitted):

“The approach of an appellate court to the assessment of proportionality

142.

A significant issue in these appeals is the proper approach to be adopted by an appellate court to the assessment of proportionality. Two different approaches are identifiable in the authorities. In some cases the appellate court treats its role as confined to a review to check whether the first instance court's assessment in relation to the proportionality of a measure was arrived at on the basis of a proper self-direction as to the test to be applied and whether the result arrived at was reasonable, in the sense of being within the legitimate parameters of judgment for the judge; if it is satisfied on these points, the appellate court will not intervene, even though it thinks that it might have reached a different view if it had been deciding the issue for itself. This approach gives particular weight to the assessment made by the judge. As explained in R (R) v Chief Constable of Greater Manchester Police [2018] 1 WLR 4079, para 64 , where this approach is followed an appellate court will only intervene if the lower court has made a significant error of principle or there is “an identifiable flaw in the judge's reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of such material factor, which undermines the cogency of [their] conclusion”. In other cases, the appellate court does not treat its role as so limited, but instead, in order to decide whether the appeal should be allowed, it makes its own fresh assessment of the proportionality of the measure in question. This approach gives priority to the authority vested in the appellate court to decide and give guidance on legal questions.

143.

Each approach is justified in the proper context. The review approach puts emphasis on the dispute-resolution effect of the first instance judgment on a determination of the facts, militates against repetition of arguments up through the legal system by the loser seeking without sufficient reason to have a second bite at the cherry, and protects appellate courts from being over-burdened by appeals. In deciding which issues should be open for debate in the higher courts it is well recognised that there is a need to ensure that the limited resources of those courts are employed in a focused and efficient way which is proportionate to what is required for them to fulfil their constitutional role to provide guidance and to resolve significant issues of principle, and which minimises the scope for delay and unnecessary duplication of effort and re-litigation of issues…

144.

The fresh determination approach is appropriate where it is important that the appellate court should give its own opinion about the proportionality of a measure and its compatibility with Convention rights, rather than defer to the assessment of the first instance judge. This is likely to be an important consideration in cases where the decision will provide guidance for other cases or where the subject matter has major social or political significance so that the public will rightly expect the senior judges in the appellate court to exercise their own judgment as to whether the measure in question is proportionate and lawful or not…

145.

Where compliance with Convention rights is in issue and turns on an assessment of proportionality, a first instance court and an appellate court each has a responsibility to assess whether there is a violation. The question whether a measure is proportionate is a question of law calling for assessment in the light of the facts of the case…

146.

… the type of measure in relation to which the question of proportionality may arise is very wide, ranging from individual action by a state official to provisions of general law enacted by the legislature. The factual contexts in which a question of proportionality may arise also vary widely; and, we would add, so can the social or political salience of the measure under consideration. Where a first instance court has made an assessment of proportionality the question for an appellate court is whether that court's assessment is wrong…

147.

It may be that what is in issue is a one-off decision which only affects persons involved in the proceedings, there is no controversy about the content and Convention compatibility of the general law which is applicable and the case turns essentially on a factual assessment of the circumstances which the lower court was particularly well placed to make. In such a case it will be appropriate for the appellate court to adopt an approach according to which it asks whether the lower court directed itself correctly, has had due regard to relevant matters and has reached a conclusion reasonably open to it, without any need to second-guess that court's proportionality assessment if it has... But, as pointed out there, in other situations—in particular where matters of general principle are in issue or the question concerns the Convention compatibility and proportionality of general rules set out in legislation—it is the proper function of the appellate court to determine the question of proportionality for itself without deferring to the assessment made by the lower court, even if that court has directed itself correctly and its decision cannot be said to be unreasonable. It may be that it is only by adopting this approach that the appellate court can fulfil its constitutional function of providing general guidance on the law…

148.

However, as is implicit in the account above, the need for an appellate court to provide guidance as to the law or to determine matters of social importance according to its own exercise of judgment varies with the circumstances of the case and with the state of the law at the time the issue of proportionality arises. The question of proportionality of a measure may have wide significance on the first occasion it arises, but then the relevant determination may be made at appellate level and the answer to be given in general terms becomes clear. On the next occasion the issue arises the circumstances will be materially different: a first instance court has to follow and apply the guidance given previously, there is no significant need or justification for an appellate court to re-assess the matter afresh and it is likely to be appropriate to leave the application of the general law in the light of that guidance to the judgment of the lower court (subject only to review that it has directed itself correctly according to that guidance and has reached a reasonable conclusion within the relevant parameters for its assessment). Similarly, in matters of wide social concern, it is only necessary that the appellate courts examine them in order to exercise their own judgment as they first arise, not on every occasion thereafter.

149.

This analysis emphasises the need for flexibility in the approach to be adopted by an appellate court, depending on the circumstances. But only up to a point. The choice has to be made on a principled basis, so that the parties and the appellate courts have a reasonable idea of the correct approach to be adopted in any given case. The choice to be made is significant in terms of the arguments properly to be addressed to the appellate court and the reasons it should give for its decision, and the choice may of course affect the conclusion to be arrived at on the merits of the appeal. Also, the approach adopted ought to be the same at each appellate stage. If it is appropriate for the Court of Appeal to make its own fresh proportionality assessment without the need to examine whether the first instance court erred in its approach, then it is appropriate for this court to do the same. Conversely, if it is appropriate for the Court of Appeal to adopt the review approach to determine an appeal, it will be appropriate for this court to adopt the same approach. Therefore, the principles governing the choice of approach have to be capable of providing reasonably clear guidance for appellate courts at each level.”

And:

“157.

What is significant about the fact that a case may involve a matter of general legal principle or a challenge to the application of a legal rule or a general policy which covers many cases is that this may be a powerful reason for an appellate court to adopt an approach requiring that court to make its own assessment of proportionality. But this will not necessarily be appropriate in all such cases.

158.

For example, a previous appellate decision may already have provided relevant guidance about the proportionality of the general rule or policy so that all that is necessary on appeal is for the appellate court to check that the lower court has directed itself correctly by reference to that guidance and has reached a conclusion reasonably open to it. Or the particular circumstances of the claimant's case may mean that their claim that the rule or policy has produced a disproportionate outcome in their specific situation is on any view limited to those circumstances, meaning that the case cannot be regarded as an appropriate vehicle for wider evaluation of the Convention compatibility of the rule or policy in other cases such as would justify anything other than a review approach on appeal. Or it may be appropriate for the appellate court to modify its approach according to the nature of different issues which are relevant to the overall assessment of proportionality, so as to adopt a review approach where a relevant factor is heavily dependent on an evaluation by the lower court of oral evidence or detailed and extensive written evidence...but making its own overall assessment at appellate level in the light of such factors as determined by the lower court (assuming it has directed itself correctly and has reached a reasonable conclusion on them). This is simply to say that in a complex proportionality assessment it may appear that some factors which feed into the overall assessment are for particular reasons best assessed by one body (be it a minister or the legislature, on grounds of their democratic authority or institutional expertise, or a lower court, if it had a superior opportunity to assess the evidence) even though the overall proportionality assessment is made by another body…

159.

The fact that the law in this area seeks to accommodate competing concerns regarding the use of appellate court resources in light of the guidance function and authority of such a court and the appropriate functions of a first instance court, means that it is difficult and potentially misleading to lay down hard and fast categories to determine which of the two appellate approaches should be adopted in any given case..

160.

Instead, the best guidance which can be provided is that…there are certain paradigm cases which are likely to require an approach involving a fresh proportionality assessment by the appellate court (but treating this as defeasible if there appear to be sufficient good reasons for a departure from this approach as a general matter or in relation to particular factors relevant to the assessment) and other paradigm cases where it is likely that a review approach on appeal is appropriate. An example of the former paradigm situation would be a case involving the first consideration at appellate level of a new legislative regime of general application, especially one with considerable significance for society. An example of the latter would be a one-off decision of a judge or an official which depends entirely on the application of well-established law and principles to the facts of the individual case.

161.

As we have explained…proportionality assessments involve elements of both fact and law. The relative significance of those elements varies from case to case. This court gave general guidance in In re B which indicates that the appropriate provisional starting point for an appellate court in deciding between the review approach or the fresh decision approach on an appeal is that the former is likely to be appropriate. Lord Clarke JSC emphasised (para 137) the statement about domestic civil procedure in In re Grayan Building Services Ltd [1995] Ch 241, 254 : “generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision”. Reflecting this general point, ordinarily the review approach in relation to an appeal in respect of a proportionality assessment will reflect a fair and appropriate division of responsibilities between the first instance court and the appellate court.

162.

The adoption of a more intensive role by the appellate court in terms of proceeding to make its own fresh assessment (even though there has been no error by the first instance court) requires to be justified by special factors as being constitutionally appropriate in the public interest and to uphold the rule of law. The main factors which are likely to be relevant to justify adoption of such an approach are (i) the relevance of the assessment of proportionality across a range of cases, whether in terms of establishing a point of general principle or approach, the proper interpretation of legislation or the proper development of the common law; (ii) the nature of the measure in question, since the constitutional responsibility of the senior courts is likely to be engaged in a more acute way in relation to challenges to primary or secondary legislation; (iii) whether the case involves a claim that legislation or proposed legislation of any of the devolved legislatures is outside competence by reason of incompatibility with Convention rights (since such an important question should again be resolved by a senior court); (iv) whether the case involves a claim that there is significant incompatibility between primary legislation and Convention rights (since such a claim invites the court to critique what Parliament has done and also because a determination of that issue may later fall to be scrutinised on an application to the European Court of Human Rights, which is likely to be assisted to the greatest degree by a domestic determination of proportionality by a senior court); (v) the need to resolve differences between divergent strands of authority which may have emerged in the lower courts; and (vi) the high importance for society of the issue to be resolved and the concomitant public interest in its being directly determined by a senior court. This is not an exhaustive list and in some situations there may be some other compelling reason for the appellate court to adopt the fresh assessment approach in order to fulfil its constitutional responsibilities.

163.

Unfortunately, the fact that simple categories do not exist in this area may mean that in circumstances where it is unclear which appellate approach is correct, and there is the prospect of an onward appeal to this court, an intermediate appeal court may find it prudent to make an assessment of proportionality according to both approaches. In fact, it is noticeable that this is frequently done by the Court of Appeal (including in these cases), in which it often explains that not only could it not be said that the judge went wrong in their assessment, but that the court agrees with the assessment they made. The Supreme Court sometimes expresses its view on proportionality in a similar way…”

Clearly, this analysis broadens the scope of the circumstances in which an appellate court may consider reaching its own conclusion on the issue of proportionality compared to that which had previously been thought to have been permissible.

The claimants thus seek to persuade me to apply my own proportionality test in their favour; even if I were to consider that the judge below could not be said to have gone wrong in the narrow sense.

I identify the following features of this case to be of particular relevance:

It may also be thought that the High Court will less frequently embark upon a broader Shvidler approach than might the higher appellate courts to the extent that a decision at this level lacks the weight of authority and force of precedence which best serves to promote the aims of establishing more general and resilient guidance. I stress, however, that I make this observation in passing and would have reached the same conclusion on the facts of this case in any event.

Having considered all the features relevant to my decision on this issue, I have concluded that this is not an appeal which calls for the more intense level of scrutiny identified in Shvidler.

During the course of the oral arguments raised by the claimants on the appeal, consideration was given to whether alternative less intrusive measures could have been taken by the Council such as permitting the claimants to adopt only children from Evangelical Christian backgrounds or those of an age at which views on homosexuality, gender and abortion were unlikely to be relevant. The parties helpfully set out their respective contentions in further written submissions. The alternative measures considered by the judge below had focussed more narrowly on the option of adopting a risk assessment approach to any given proposed fostering arrangement. There was evidence before the judge that the introduction of such a system would be labour intensive and not a viable use of public resources. The claimants’ matching criteria would be too low. In the event, the judge found that such measures would simply not work in practice.

Although I accept a degree of responsibility for ventilating during the course of oral argument the possibility of exploring certain alternative measures which had not been ventilated below, I consider upon mature reflection that it would be wrong now to consider such options. In particular, witnesses below did not have the opportunity to assist the court in identifying the practical impact which any such measures might have because they were not asked about them. It would be dangerous for this court, at appellate level, to speculate on what they may or may not have said. Accordingly, I will limit my consideration to the options advanced before the judge below. Indeed, I note in passing that the absence of evidence relating to the practicability of all alternative proportionality options which may be deployed in any future similar cases further diminishes the attractions of my attempting to provide Shvidler style guidance for the future.

Accordingly, I must now turn to the question of whether the judge was wrong in the narrow sense in his application of the proportionality test as applied to the evidence and the arguments raised before him based on such evidence.

In my view, the judge was not wrong.Paragraph 56(b) of his judgment which is set out in full earlier in this judgment sets out his reasonable concerns with particular reference to the issue of homosexuality. Similar considerations were identified in Johns at para 106 in the following terms:

“106.

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.”

In any event, even if I were to apply the more stringent analysis identified in Shvidler I would have reached the same conclusion as the judge below on the material before him.

I must, however, stress a number of important points:

For all these reasons, Ground 4 cannot provide a proper basis upon which the judge’s conclusion on this issue undermines his analysis or conclusions. This ground must fail.

“The Learned Judge has failed to carry out his own objective Bank Mellat analysis but instead placed impermissible reliance on subjective factors: the conclusion that the Defendant was “making a good faith effort” to comply with its duties (para 59(2)) and that its view was not “clearly unreasonable” (para 59(4)). Those were not proper factors for an assessment of the objective justification under the Convention Ground.”

The judge was not suggesting that a “good faith effort” on the part of the Council was, in itself, a factor sufficient to turn an unfair balance of interests into a fair one. The significance of his finding is that it equipped him to take the reasons relied upon by the Council at face value. The justification put forward for failing to proceed with the claimants’ application was, in part, a concern that the claimants would manifest their religious beliefs to a foster child in a way which was inimical to the legitimate aims to respect, recognise, support and celebrate the identity of fostered children and ensure that full attention is paid to the individual child’s sexual orientation.

The judge found that he could not say that the Council’s view was clearly unreasonable. Contrary to the criticism raised in this ground of appeal, this was an objective and not a subjective finding. It must also be read in the context that the judge had already correctly identified the content of the Bank Mellat fourth criterion of whether a fair balance had been struck. I consider that the Council is correct to categorise this observation as a recognition of the need to allow for a margin of appreciation or due deference when determining whether a fair balance has been struck.

In R(S) v Secretary of State for Justice [2013] 1 WLR 3079 Sales J (as he then was) explained that the HRA, by applying “Convention rights”, incorporates into domestic UK law the concept of the margin of appreciation when those rights fall to be applied under section 6 of the HRA. He held at para 55:

“domestic courts are required to interpret the Convention rights by applying the same margin of appreciation when assessing the lawfulness of conduct of public authorities under section 6(1) as the Court of Human Rights would apply when assessing the lawfulness of conduct of the national authorities from the perspective of an international court”.

It may also be added that the margin of appreciation is broader in cases where, as here, those responsible for taking the action under challenge have, as I have already noted, particular expertise in the relevant area. Accordingly, it was not, in this context, inappropriate for the judge to ask whether the actions of the Council were clearly unreasonable. This ground must fail.

“The Learned Judge has failed to direct himself about the principle set out by the Court of Appeal in Ngole v Sheffield University [2019] EWCA Civ. 1127: conservative Christian beliefs about homosexuality do not equal discrimination based on sexual orientation and must not be treated as such. In consequence of that misdirection and/or his failure to apply that principle to the present case, the Learned Judge reached erroneous, impermissible and/or perverse conclusions:

The claimant in Ngole had enrolled on a two-year MA Social Work course at the University of Sheffield. He posted his trenchant and critical views on homosexuality on social media. The University embarked upon disciplinary proceedings and took the decision to remove the Appellant from his course, on fitness to practise grounds. The Court of Appeal found that the University had wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds. Indeed, there was positive evidence to suggest that the Appellant had never discriminated on such grounds in the past and was not likely to do so in the future because, as he explained, the Bible prohibited him from discriminating against anybody.

The decision in Ngole was therefore directed to the University’ s fear that the claimant would discriminate against homosexuals in the event he were to qualify to work as a social worker. The evidence did not support this conclusion.

The issue in this case is different. Mr Smith quite freely and honestly said in his evidence that, in the event of a foster child in his care “coming out” as being gay, he would tell the child that it was a sin and that he would not agree with the “choices” he or she had made. It is not suggested that the claimants would discriminate against a gay or sexually conflicted foster child but by openly and unequivocally telling them that homosexuality is a choice and a sin they would not be encouraging and supporting him or her to have positive views of themselves and to be proud of their sexual identity.

The council were not, therefore, stereotyping the claimants’ views and drawing insupportable conclusions about their future likely conduct. Indeed, the claimants themselves had indicated what they were likely to say and do in the clearest of terms.

It follows that the case of Ngole is by no means on all fours with the circumstances of this case. The fact that the judge made no reference to it in his judgment is understandable and his failure so to do does not begin to undermine the soundness of the conclusions which he reached.

I have already dealt with the question of proportionality earlier in this judgment.

This ground must fail.

Section 10 of the EqA identifies religion or belief as one of the protected characteristics falling within the scheme of the Act.

Section 13 relates to direct discrimination providing thata person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

The jurisdiction of the county court to afford a remedy for a contravention of the EqA is established under section 114(2). The county court has power to grant any remedy which could be granted by the High Court in proceedings in tort and/or on a claim for judicial review.

During the course of writing this judgment, I noted and pointed out to the parties that the remedies claimed under the EqA are pleaded to be pursuant to section 124. However, section 124 relates only to claims brought in the Employment Tribunal and not the civil courts. The remedies available to the latter are set out in section 119. They are not the same. In particular, the court does not have jurisdiction to make a “recommendation” which is presently claimed under (2) of the prayer. The point was not taken in the Defence, before the judge below or before me.

The claimants now contend that the remedy under section 119 could be brought within the existing claim for “further or other relief” or, in the alternative, they seek leave to amend the pleading. The defendants contend that it is not necessary to amend.

In my view, it is important that the issues in any given case should be properly and accurately reflected and defined in the pleadings. I reject the suggestion that, in this case, it is adequate to deploy a claim for “further or other relief” as a catch-all remedy for pleading the wrong statutory remedy in the first place.

The claimants express concern that any amendment would be vulnerable to the claim that it would be statute barred but the defendants (rightly in my view) do not take the point and so I need not consider that matter further.

I therefore grant permission to the claimants under CPR rule 17.1(2)(b) to amend the prayer for relief so that under (3) of the prayer, the reference to s.124 is replaced with s.119; and (2) of the prayer (the “recommendation”) is deleted entirely.

As I have already noted, the judge dealt first with the application of the Human Rights issues before moving on to consider the EqA claims. He was right to do so.

In Page v NHS Trust Development Authority [2021] EWCA Civ. 255 Underhill LJ observed:

“67.

For those reasons I believe that the tribunal was entitled to find that the Authority did not infringe the appellant's Convention rights. It might be thought to follow that it cannot have discriminated against him on the grounds of his religion or belief, since the relevant protections under the Convention and the 2010 Act must be intended to be co-extensive. In my view that is indeed the case, but that does not absolve me from considering the issues through the lens of the 2010 Act, which must be the formal basis of the appellant's claim.”

In Higgs v Farmor's School [2025] EWCA Civ. 109 at para 68 he applied the same analysis.

It is to be noted that in Page the Court considered that it was appropriate to consider the implications of the application of the ECHR before turning to the provisions of the EqA even where the former had not been relied upon to found a claim. A fortiori, where claims under both regimes are brought, it is likely to be the better course to approach the issues in this order.

It must follow that having found, in my view correctly, that the actions of the council were not in breach of their obligations under the HRA his conclusion on the EqA must also have been in its favour. Even though it remained appropriate for him to go on to “consider the issues through the lens of the 2010 Act”, the outcome was bound to be the same.

“The Learned Judge has failed to apply the correct legal test to the direct discrimination claim, namely to:

The exercise upon which the judge had embarked involved the consideration of the question of whether the claimants had suffered discrimination “because of” a protected characteristic.

The answer to the “because of” question is the analytical destination. It can be reached by different routes the competing attractions of which will vary from case to case. The selection of comparators may sometimes be problematic in which case it is permissible to go straight to the “reason why” approach. At the risk of stating the obvious, an appeal lies against the decision, not the reasons for it.

On the facts of this case, the factor of central importance was the way in which the claimants would be liable to manifest their beliefs in conversations with foster children entrusted to their care. The focus must therefore be upon the appropriateness of this manifestation in the context of the fostering relationship.

As Underhill LJ observed in Higgs at para 74:

“In summary, Page was decided on the basis that adverse treatment in response to an employee’s manifestation of their belief was not to be treated as having occurred “because of” that manifestation if it constituted an objectively justifiable response to something “objectionable” in the way in which the belief was manifested: it thus introduced a requirement of objective justification into the causation element in section 13(1). Further, we held that the test of objective justification was not substantially different from that required under article 9(2) (and also article 10(2)) of the Convention. I should clarify two points about language:

(1)

The word “objectionable” in para 74 is evidently a (possibly rather inapt) shorthand for the phrase in para 68 “to which objection could justifiably be taken”. Both have the same effect as the word “inappropriate” which is also used.

(2)

The “way” in which the belief is manifested is a deliberately broad phrase intended to cover also the circumstances in which the manifestation occurs.

That is the ratio of Page (as regards the direct discrimination claim)…”

And at paragraph 92:

“Direct discrimination in manifestation cases is (uniquely) different from discrimination on the ground of other protected characteristics (and indeed from simple belief discrimination) because it is based, as the court in Eweida 57 EHRR 8 identifies, not on the possession of the characteristic as such but on overt conduct, which thus has the potential to impact on the interests of society and the rights and freedoms of others. That distinction may be said to put it in a special category which requires a more flexible approach.”

I am satisfied in this case that the discrimination which the claimants suffered is not to be treated as having occurred “because of” the manifestation if it constituted an objectively justifiable response to something “inappropriate” in the way in which the belief was manifested.

I do not consider that this test should be confined to past conduct in cases where, as here, the claimants have very candidly accepted how they would manifest their religious convictions in the foreseeable event that a foster child in their care would struggle with issues such as, for example, coming out as gay or the prospect of an abortion.

When approached in this way, it can be seen how the EqA test of “because of” melds into the analogous test relating to the limitations on the right to manifest religious beliefs under Article 9(2) so as to be co-extensive. My conclusions are, therefore, identical.

In addition to supporting the judge’s reasoning, the Council relies upon Schedule 22 of the EqA which provides, in so far as is relevant:

“Statutory authority

1(1) A person (P) does not contravene a provision specified in the first column of the table, so far as relating to the protected characteristic specified in the second column in respect of that provision, if P does anything P must do pursuant to a requirement specified in the third column.

Specified provision: Parts 3 to 7

Protected characteristic: Religion or belief

Requirement: A requirement of an enactment: A relevant requirement or condition imposed by virtue of an enactment.”

I do not consider that it is necessary for me to embark upon an analysis of the potential application of this provision to the circumstances of this case because the issue can be resolved, as I have done, without recourse to the concept of statutory authority.

“The Learned Judge accepted a legally erroneous distinction between the Claimants’ ‘faith’ and their ‘belief system’ (para 20(2)). Neither Article 9 ECHR nor s.s. 4 and 10 EA 2010 permit for any such distinction and protect equally ‘religion’ or a specific ‘belief’, religious or philosophical. Each belief pleaded in para 24 of the Amended Particulars of Claim is a protected characteristic in its own right. The Learned Judge evidently failed to appreciate this, and in consequence:

The premise upon which this ground is founded is false. The judge merely recorded the fact that Ms Dunbavin drew a distinction between a faith and a belief system. He did not adopt the distinction as his own and it did not form any part of his analysis of the legal position. With specific reference to points (a) to (c):

“The Learned Judge (paras 91-92) applied an unrealistically high evidential bar for proof of group disadvantage in a claim for indirect discrimination based on beliefs; that approach is contrary to the Court of Appeal authority Mba v Merton LBC. Applying Mba, the evidence referenced in para 91 was amply sufficient to prove that the requirement to promote diversity was likely to disadvantage Evangelical Christians.”

In oral argument before me it was agreed that, bearing in mind the way in which the case had developed on the issue of direct discrimination, the judge’s findings on indirect discrimination were no longer relevant. As Baroness Hale of Richmond JSC made clear in R (on the application of E) v Governing Body of JFS [2010] 2 AC 728 at para 57 “direct and indirect discrimination are mutually exclusive”. In this case, the direct discrimination analysis was rightly agreed to be the correct one. I will not therefore embark upon any further consideration of this ground.

For the reasons I have given, this appeal is dismissed.