Wednesday, 17 March 2010

Catholic Care 'Wins' High Court Battle

Fantastic news as The Telegraph reports...

A Catholic adoption society has unexpectedly won a High Court battle against legislation forcing it to consider homosexual couples as parents.

Catholic Care had said it would have to give up its work finding homes for children if it was made to comply with the new anti-discrimination legislation.

The Charity Commission had rejected its plea to an exemption under the Sexual Orientation Regulations but a High Court judge this morning allowed the adoption charity's appeal.

Mr Justice Briggs, sitting in London, ordered the commission to reconsider the case in the light of the principles set out in his judgment.

Catholic Care, which serves the dioceses of Leeds, Middlesbrough, and Hallam in South Yorkshire, was the last Catholic adoption charity to continue its fight against the equality legislation.

The Roman Catholic Church lost a battle against the regulations when they were introduced in 2006.

Rt Rev Arthur Roche, Bishop of Leeds, welcomed the judge's decision, saying it would "help in our determination to continue to provide this invaluable service to benefit children, families and communities".

He said the judgment confirmed that Catholic Care was correct in its reading of the Equality Act (Sexual Orientation) Regulations 2007 and that the exemption could apply "to any charity subject to it being in the public interest".

The bishop said: "We look forward to producing evidence to the Charity Commission to support the position that we have consistently taken through this process: that without being able to use this exemption, children without families would be seriously disadvantaged.

"Catholic Care has been providing specialist adoption services for over 100 years.

"We have helped hundreds of children through the recruitment, assessment, training and support for prospective adoptive parents as well as offering ongoing and post-adoption support to families that give such security and love for some of the most vulnerable children in our society.

"The judgment today will help in our determination to continue to provide this invaluable service to benefit children, families and communities."

So, maybe it is worth standing firm and not doing deals in order to maintain the Catholic ethos of our schools, sorry, I mean, adoption agencies. Well done Catholic Care and thanks be to God!

UPDATE: I have just had a comment suggesting that the Telegraph's report of this being a 'victory' is not the whole story. To see the full decision of the judge, click here. Somebody get me a lawyer!


Anonymous said...

Absolutely GREAT news Laurence!

full judgement here.. said...

The Judge refused to rule and has sent the matter back to the Charity Commission. Not a total defeat but quite close for Catholic Care.

The Bones said...

Sorry, I don't understand...Why is the Telegraph presenting it as a victory then?

Ludolphus said...

109: On the one hand, Miss Mountfield's submission [she was Counsel for the Intervenor Equalities Commission]that differential treatment which is not founded on the special needs either of the proposed adoptive parents or the children, or upon any other class of justification recognised by the developing jurisprudence on Article 14, must be discriminatory commands real respect. [In other words religious belief about the sanctity of family life like the Catholic Church hold are discriminatory and they have no legal justification]

On the other hand, the very unusual predicament of Catholic Care, its status as an adoption agency of last resort for "hard to place" children and the arguably pre-eminent needs of those children who will otherwise be left unadopted may constitute a very special and unusual case for recognition under Article 14, quite unlike any other to be found in the existing jurisprudence, but none the worse for that. [But Thank God (the Judge did not say that) Catholic Care did not employ a religious belief argument, since they knew it would not wash, instead they came up with an "agency of last resort" argument ]

Mr Pearce's submission [Counsel for the Charity Commission]that, if the analysis gets this far, the question of justification should be referred back to the Charity Commission is one which I find to be compelling. [In other words I don;t want to make a decision so let's just send i tback to the Charity Commission with my confused Judgement on the meaning of Section 18]

On my interpretation of Regulation 18, the Commission is the body charged by Parliament with the task of carrying out that analysis. Provided that it directs itself (or is directed) correctly in law, it is better resourced and in my judgment better placed than the court to perform that difficult function, at least first time round.

My fisk is in [square brackets]

Ludolphus said...

I should make clear my previous comment is a fisk on today's Catholic Care High Court judgement

B e f o r e :



- and -



- and -



Mr Christopher McCall QC & Mr Matthew Smith (instructed by Bircham Dyson Bell LLP, 50 Broadway, London SW1H 0BL) for the Appellant
Mr Robert Pearce QC (instructed by Stephen Roberts (In House Solicitor), Charity Commission Direct, Liverpool L69 3UG) for the Respondent
Miss Helen Mountfield (instructed by Glynis Craig, Senior Lawyer-Solicitor, Equality & Human Rights Commission, Arndale House, Manchester M4 3AQ) for the Intervener
Hearing dates: 3rd – 4th March 2010


Crown Copyright ©

Mr Justice Briggs :


The Bones said...

So who won, Ludolphus?

Ludolphus said...


I will try to answer why I do not regard this Judgement as a victory.

Catholic Care did well to get the High Court to return the matter to the Charity Commission but now they have a real fight on their hands.

The Catholic Care argument is set out at Para [107] of the judgement:

[107] Mr McCall for Catholic Care steadfastly and in my judgment wisely abjured any such basis for justification under Article 14. While he accepted that the tenets of the Roman Catholic Church were the cause of the charity's wish to apply differential treatment, the justification upon which he relied ran as follows:
i) For many years ending in 2008, Catholic Care provided adoptive parents chosen by local authorities for approximately ten children per annum.

ii) For those children, usually of the "hard to place" category, Catholic Care was the adoption agency of last resort for the local authorities concerned, whose practice was to have recourse to Catholic Care only when all other avenues for the identification of willing and suitable adoptive parents had failed. But for Catholic Care's work in that field, those children would therefore not have been adopted that year or, probably, at all.

iii) Catholic Care was one of a small number of publicly funded faith-based adoption agencies for which, during the transitional period afforded by Regulation 15, it had proved impossible to identify any avenue (other than via Regulation 18) for continuing its adoption agency services. It was therefore faced with the stark choice of complying with Regulation 18 by adopting the Proposed Objects, or closure of its adoption service. Since more than 90% of its work consisted of other charitable activity, supported and funded to a substantial extent by contributions from within the Roman Catholic Church, the severing of its ties with that Church was wholly impracticable.

iv) Accordingly, the continuation of its service involving the inevitable denial of its adoption agency services to same-sex couples was justified within Article 14. It served the legitimate aim of providing suitable adoptive parents for a significant number of children who would otherwise go un-provided for. The consequential differential treatment by reference to the sexual orientation of prospective adoptive parents was a proportionate means of achieving that legitimate aim, since there were other agencies willing to provide similar services to same-sex couples, and since the choice of appropriate parents for any particular child was made not by Catholic Care, but by the relevant local authority, in conjunction with the court. Same-sex couples would therefore neither be deprived of any significant benefit (not least since the only alternative of closure would make that benefit unavailable anyway), nor would they be disadvantaged in any competition with heterosexual couples for choice as the adoptive parents for any particular child.

v) Since any competition between the interests of the children and the interests (including the human rights) of prospective adoptive parents could only be properly resolved in favour of the children, the Article 14 justification was plain and obvious."

The Judge says in [108] that they have provided a prima facie case but now they will have to come up with real evidence to back up their claim that they are the adoption agency of "last resort", which is going to be hard to do.

How do they prove that no other agency, ie. one that would not discriminate against gay couples, could not step into their shoes as the agency of last resort? Tough and that's why I am very reluctant to see this judgement as a victory.

Catholic Care have been driven into a corner, they have abandoned the argument based on Catholic teachings or principles and have adopted a utilitarian argument, and after all of that, it is highly likely the Charity Commission will still refuse to allow them to change their Charity Objects.

Hope this makes sense?

The Judgement is confusing and I need to re-re-read it.

Ludolphus said...

I have just added this comment to Holy Smoke but it is bound to be gobbled up in a few seconds by off-topic bitterness about the Church so maybe better sheltering here in this more kindly harbour...

Turning the whole thing on its head if Catholic Care do persuade the Charity Commission what will the effect of their litgiation tactic (ie abjuration of Catholic teaching on marriage and the family) mean.

A line in "Murder in the Cathedral" comes to mind - something like winning but for the wrong reason". Any ideas?

Is there a connection between this Judgement and the 1789 Revolution? Is Catholic Care the new Sieyes – J’ai vecu? The wise abjurors of Leeds?

[107]Mr McCall for Catholic Care steadfastly and in my judgment wisely ABJURED [my emphasis]
any such basis for justification under Article 14 [ie the Catholic teaching on the family and marriage]

The Judge seems to think so:
[105] Miss Mountfield submitted that, regardless of the outcome of the issues as to the interpretation of Regulation 18, the adoption of the Proposed Objects by Catholic Care could not possibly be justified under Article 14, so that the Tribunal was nonetheless still correct to answer the preliminary issue in the negative. The gist of her argument was that religious belief (in the form of the tenets of the Roman Catholic Church) could not possibly justify the denial of Catholic Care’s adoption agency services to same-sex couples, since it was a manifestation of non-core beliefs in an essentially public sphere, being both funded in part by, and carried out in part on behalf of, a public authority.
[106] If the justification put forward by Catholic Care was indeed the need to respect the beliefs of the Roman Catholic Church, I would agree with that submission, save only that I would regard it as unnecessary to have to decide whether the beliefs in question did or did not form part of the core tenets of Roman Catholic faith and doctrine. There was evidence before the Tribunal from the Roman Catholic Bishop of Leeds that they did, from which I would be slow to depart without compelling grounds.
[107] Mr McCall for Catholic Care steadfastly and in my judgment wisely abjured any such basis for justification under Article 14.”

Neutral Citation Number: [2010] EWHC 520 (Ch)
Case No: CH2009/APP/0409

Ludolphus said...

Aye here it is:

Finally, a fourth tempter urges him to seek the glory of martyrdom.
You hold the keys of heaven and hell.
Power to bind and loose : bind, Thomas, bind,
King and bishop under your heel.
King, emperor, bishop, baron, king:
Becket responds to all of the tempters and specifically addresses the immoral suggestions of the fourth tempter at the end of the first act:
Now is my way clear, now is the meaning plain:
Temptation shall not come in this kind again.
The last temptation is the greatest treason:
To do the right deed for the wrong reason."

Thanks Wiki...

Anonymous said...

Searching for this for some time now - i guess luck is more advanced than search engines

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