Charity Commission v Catholic Care (Diocese of Leeds)

Analysis

The charity is an organisation working on behalf of the Catholic diocese of Leeds. It provides a number of services to the community at large to promote the relief of poverty and distress. One such service, previously offered, was a voluntary adoption agency that sought to place children with families resembling the Holy Family of Nazareth, ie heterosexual spouses.

A temporary exemption for faith-based adoption agencies from the prohibition on discrimination on the grounds of sexual orientation ceased on 31 December 2008. The charity’s adoption service therefore suspended from 1 January 2009. The charity contended that it could not continue to operate an adoption agency if it was unable to discriminate in favour of prospective heterosexual adopters, because the Roman Catholic Church and other Catholic supporters would not, in those circumstances, provide the financial contribution necessary for its existence. The charity stated that it could not and would not operate the service outside the Church or ‘hive’ it off from the same without hindering their income stream and other charitable works.

Accordingly, the charity applied for an alteration of its objects clause, making various changes, including a prohibition on providing assistance to non-heterosexuals seeking to act as adoptive parents. The Charity Commission refused to grant written consent to this change, and the Charity Tribunal upheld this decision on 1 June 2009. However, on 17 March 2010 the High Court allowed the charity’s appeal and remitted the matter to the Commission for consideration in accordance with the principles set out in an approved judgment of Mr Justice Briggs.

The charity renewed its application on 27 April 2010. It accepted that it needed to provide clear and weighty reasons why the proposed discrimination would not constitute an impermissible contravention of Art 14 of the European Convention on Human Rights. The requisite justification was advanced, substantially, on the grounds:

1. (i) many children waiting to be adopted are in the ‘hard to place’ category;
2. (ii) almost half the hard to place placements organised by local authorities fail in contrast to only 5% of their placements;
3. (iii) that the charity’s service is only used after all other alternatives are exhausted;
4. (iv) that their closure may lead to delays or children not being adopted at all and a reduction in the available pool of adopters; and
5. (v) that same-sex couples would still be able to adopt through other agencies.

Held

The Commission refusing to provide prior written consent to the proposed alteration of objects:

1. 1. When considering whether a purpose is charitable, a public benefit will only be established if, taking into account any disbenefit arising from its modus operandi, its activities nonetheless yield a net public benefit. If proposed, discrimination is not, therefore, permissible under Art 14, the proposed objects would not be charitable because of the large disbenefit likely to flow from unjustified, and therefore discriminatory, differential treatment.
2. 2. Justification under Art 14, and application of the exception provided by regulation 18 of the Sexual Orientation Regulations, requires convincing and weighty reasons sufficient to rationalise the discrimination as a proportionate means of achieving a legitimate aim.
3. 3. While the adoption agency’s closure may have an unquantifiable negative impact, the charity failed to provide sufficiently weighty justification for the proposed discrimination; the Commission finding that:
4. a) Voluntary adoption agencies are underused by local authorities and that the extra capacity of other agencies outweighs the potential loss, such as it may be, from the charity’s adoption service coming to an end.
5. b) There is no evidence that the charity produced a significantly better result than other adoption agencies.
6. c) It is in the interests of children awaiting adoption that applications from same-sex couples are considered as well as those of heterosexual couples.
7. d) The availability of alternative routes to adopt for same-sex couples is not in itself an appropriate justification for discrimination.
8. e) The charity will continue to provide advice and support to Catholic families wishing to adopt, and so the consequence of the adoption agency’s closure will be limited.
9. 4. respect for the religious beliefs motivating faith-based adoption is unlikely to constitute a justification for discrimination against same-sex couples because voluntary adoption agencies perform an essentially public function, carried out on behalf of and funded to an extent by local authorities. In any case, in this instance, the contended justification was not based directly on Catholic beliefs but on the effect of non-discrimination (ie closure of the adoption service).

Judgment Issues before the Commission [1] The Charity Commission (the Commission) considered an application by a charitable company, Catholic Care (Diocese of Leeds) (the charity) for consent to a proposed change to its objects under s64 of the Charities Act 1993 (the 1993 Act). Decision [2] The Commission has looked carefully at the legal position …

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