A Court of Appeal ruling involving a Christian fostering charity has highlighted how the approval of one regulator does not serve as a defence to potentially discriminatory practices, lawyers have warned.
Cornerstone recruits and supports carers for children in local authority care who need to be fostered and in some cases adopted.
Part of the charity’s objects include providing a “service according to Christian principles” and its purpose is to only recruit evangelical Christian foster carers.
The Charity Commission wrote to the charity following an earlier judgment in 2010, the implications of which were that an organisation that discriminates in a way that was not justified was unlikely to be a charity.
After corresponding with the charity the commission accepted that it did not discriminate on the grounds of sexual orientation.
But a complaint was made to the education regulator Ofsted in March 2016 from a prospective foster carer who was concerned that the charity would only assess practising Christians who were a married couple, which she said discriminated against her belief system.
A clause in the charity’s code of practice also stipulates that carers should abstain from “homosexual behaviour”.
A report by Ofsted In June 2019 found that the decision to only recruit hetrosexual evangelical Christians did not comply with parts of the Equality Act 2010 or the Human Rights Act 1998.
As a result the charity began judicial review proceedings in July 2019 seeking to have the report quashed and damages.
Part of Cornerstone’s case was that the children’s education watchdog had no power to alter its recruitment policy for foster carers as outlined in its charitable instruments.
Ofsted accepted it had to take the commission’s view into account but was not required to follow it.
A judgment in July 2020 found that the charity’s policy did not discriminate on the grounds of religious belief but unlawfully discriminated against gay and lesbian people.
It also found that Ofsted’s report was not unlawful and did not discriminate against the charity’s rights under the European Convention on Human Rights.
The charity’s subsequent claims that its policies were justified were rejected in an appeal heard in September.
Lord Justice Peter Jackson concluded that it was “impossible to conclude that the ability to discriminate against homesexuals was a matter of such importance to Cornerstone that, without it, the wellbeing of current and future carers would be seriously affected”.
Jackson did not rule out however the possibility of an organisation making an “evidence-based case” for such a justification but the charity did not do that, and its claim “failed on the facts”.
The charity said it planned to appeal to the Supreme Court.
The Christian Institute, which has been providing legal support to the charity, said Cornerstone was being punished for holding the wrong beliefs.
Simon Calvert, deputy director for public affairs at The Christian Institute, said: “The law and language of discrimination is in danger of being distorted beyond recognition.
“What the court has done today, in the name of opposing discrimination, is actually to support discrimination by a powerful state regulator against a small voluntary group.
“No gay carers were ever discriminated against by Cornerstone so this ruling does not in any sense ‘right a wrong’.
“The Court of Appeal did confirm that Cornerstone suffered a significant interference with its human right to manifest its religious beliefs. We hope there will be an opportunity, in due course, for the Supreme Court to engage further with this and strike a fairer balance of competing rights.”
A spokesperson for the Charity Commission said: “We are carefully considering this judgment and any implications for charity regulation in this area.”
Harriet Broughton, a partner at the law firm Stone King, said the ruling could have a wider impact on faith charities.
“The judgment highlights the difficulty for religious charities in handling the often conflicting obligations relating to faith and sexual orientation,” she said.
“As a result of the judgment, we may see further challenges from regulators and beneficiaries where services are restricted to certain beneficiaries.
“Where charities benefit from public funding, it would be prudent to review activities to ensure they are not discriminatory.”
Broughton said the decision also served as a cautionary reminder that approval of one regulator would not insulate a charity against a claim, nor serve as a defence to potentially discriminatory practices.