Adoption Agency must not block gay couples, says Court

The Court of Appeal has ruled that an evangelical Christian fostering agency must allow homosexual couples to adopt.

Cornerstone (North East) Adoption and Fostering Service brought legal action against Ofsted after the agency’s rating was downgraded from “good” to “requires improvement”. Ofsted took the step after concluding that the agency was discriminating against lesbians and gay men by only placing children with heterosexual married couples. The Court of Appeal has now agreed with the education watchdog that the policy is discriminatory and not justified by religious beliefs.

However, the case could end up being put before the Supreme Court, as Cornerstone, which is a small, independent fostering and adoption support agency based in Doncaster, intends to appeal the decision.

Whilst giving a High Court ruling in July last year, Mr Justice Julian Knowles said Cornerstone, “must change its recruitment policy to allow gay men and lesbians who are evangelical Christians to apply to become prospective foster parents, and it cannot lawfully refuse to do so”. Cornerstone challenged that judgment at a hearing in June this year. The agency’s appeal was rejected by three Court of Appeal judges, who concluded that the policy was discriminatory and not justified by its religious beliefs.

Lord Justice Peter Jackson, sitting with Lady Justice Nicola Davies and Lady Justice Asplin, said there could be “no doubting” the value of the agency’s work or sincerity of its motives. However, the judge said that to justify the policy it needed to provide “credible evidence” of a seriously detrimental impact on carers and children if its policy was changed. The Lord Justice added: “The evidence it actually advanced did not go beyond the level of general assertion. In consequence, the judge understandably found it impossible to conclude that the ability to discriminate against homosexuals was a matter of such importance to Cornerstone that, without it, the wellbeing of current and future carers and children would be seriously affected. He was entitled to treat assertions of the impact on carers as being at best inconclusive, and no attempt was made to prove any impact on present or future children. In short, while I would not rule out the possibility of an organisation in this position putting up a substantial evidence-based case on justification, Cornerstone simply did not do that, and its claim failed on the facts.”

Cornerstone had previously argued that when Ofsted downgraded the agency’s rating, it had “blundered in” on a “white charger” to be a “champion of equality and human rights”, and had “abused its regulatory function”. Representing the agency, Aidan O’Neill QC told the High Court: “There are no actual victims or complainants. You cannot set up straw men and say, "if they were to do this to them then this would be unlawful. The state has to be neutral in regards of religious beliefs.” 

Representing Ofsted, Sir James Eadie QC argued that inspectors had concluded Cornerstone’s recruitment needed action, “because they were unlawful in terms of discrimination law”. He said it was “perfectly clear” Cornerstone was discriminating and added that a homosexual carer would be “required to sign up to a code which effectively denies their orientation”.