20/08/10

By Andrew Holt

The Charity Commission has decided that it will not give consent to the charity Catholic Care to amend its charitable objects to restrict its adoption services to heterosexual prospective parents only.

The regulator of charities in England and Wales has considered the evidence and the relevant law and concluded that it would not be justified in the circumstances for the charity to discriminate in this way.

The Commission’s decision follows a High Court judgment in March 2010 to allow an appeal by the charity against a decision of the Charity Tribunal made in June 2009, which had upheld the Commission’s decision not to agree to a change of the charity’s objects.

The High Court judgment required the Commission to consider the case afresh, and set out the principles it should consider in doing so.

These principles included the need to justify the discrimination within Article 14 of the European Convention on Human Rights which deals with the general prohibition of discrimination.

Case law indicates that there needs to be ‘particularly convincing and weighty reasons’ as to why any discrimination could be justified.

The Commission recognises that Catholic Care offers a valuable, high quality adoption service by providing assessment and preparation of people to act as adoptive parents for children being placed by local authorities.

However, the Commission concluded that the evidence did not provide sufficiently convincing and weighty reasons to justify the charity’s wish to restrict its service to heterosexual prospective adoptive parents. This is because:

· The interests of children are paramount - the courts have found that it is in the interests of children waiting to be adopted that the pool from which prospective parents are drawn is as wide as possible.

· Discrimination on the ground of sexual orientation is a serious matter because it departs from the principle of treating people equally.

· Local authority evidence suggests that even if the charity were to close its adoption service, children who would have been placed through the charity are likely to be placed through other channels.

· Local authority evidence suggests that they consider gay and lesbian people as suitable prospective parents for hard to place children and that such adoptions have been successful.

· The High Court judgment had found that respect for religious views could not be a justification for discrimination on the ground of sexual orientation in this case, because of the essentially public nature of adoption services.

The charity had applied to the Commission to change its charitable objects to restrict assistance to heterosexual prospective adoptive parents.

This was intended to bring it within the exemption for charities from the statutory prohibition on discrimination on the grounds of sexual orientation in the provision of goods and facilities to the public.

The charity has argued that if it cannot discriminate as it proposed, it would have to close its adoption service in order to keep its connection with the Roman Catholic Church and the funding that this brings.

Andrew Hind, chief executive of the Charity Commission, said: “This has been a complex and sensitive decision which the Commission has reached carefully, following the principles set out by the High Court, case law and on the basis of the evidence before us. Clearly the interests of children are paramount.

“In certain circumstances, it is not against the law for charities to discriminate on the grounds of sexual orientation.

"However, because the prohibition on such discrimination is a fundamental principle of human rights law, such discrimination can only be permitted in the most compelling circumstances. We have concluded that in this case the reasons Catholic Care have set out do not justify their wish to discriminate.”

A summary of the decision and a copy of the full legal decision are available on the Charity Commission website.

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