Pothecary Witham Weld Solicitors

The Charity Commission has concluded that Catholic Care (Diocese of Leeds) (“the Charity”) may not amend its governing document to allow only heterosexuals to adopt children via the Charity. 

The full reasons for the Charity Commission’s refusal of the Charity’s application may be found in its decision here. 

The Charity provides services to vulnerable adults and children, including an adoption service. The Charity applied to the Charity Commission under Section 64 of the Charities Act 1993 for consent to amend its objects with the effect of limiting its adoption services to heterosexual potential adoptive parents. 

On 17th March 2010 the High Court allowed an appeal from the Charity against a decision of the Charity Tribunal dated 1st June 2009 that had refused consent to the proposed change in objects. The High Court remitted the case back to the Charity Commission to consider the application in light of the High Court judgment of Mr Justice Briggs of 17th March 2010.       

As the Charity Commission is a public authority it is required to act in a way that is compatible with the rights set out in the European Convention on Human Rights (“ECHR”). In coming to its decision the Charity Commission considered Article 8 (the right to respect for private and family life) and Article 14 (the right to the enjoyment of Convention rights without discrimination on any ground) of the ECHR. It also considered the Equality Act (Sexual Orientation) Regulations 2007 which deal specifically with sexual orientation discrimination in relation to the provision of services (soon to be replaced by the Equality Act 2010).   

In support of its application the Charity stated that unless it was able lawfully to discriminate, its adoption service would have to close. This was because it would no longer be able to rely on essential funding from the Catholic Church.     

The Charity was under a duty to show “particularly convincing and weighty reasons” that the proposed discrimination was a “proportionate means of achieving a legitimate aim”.  The reasons put forward were that it had success in providing a last resort (it did not claim to be the last resort) for local authorities in housing “hard to place” children; it had a better rate of successful placements than local authorities; and other adoption agencies existed that would provide adoption services to homosexual prospective parents. 

The Charity Commission, upon a consideration of the evidence provided by local authorities, voluntary adoption agencies and an examination of European case law concerning sexual orientation and the provision of services, concluded that the Charity had not satisfied the requirement to provide “convincing and weighty reasons” for the proposed discrimination.  Particularly, the Commission considered that the attitudes of those providing part of the funding were not sufficient to justify the discrimination and noted the evidence from local authorities that, despite what the Charity had argued, the closure of the Charity’s adoption service would not result in children not being adopted. 

Catholic Care (Diocese of Leeds) was, as of 19th August 2010, considering “whether there is any other way in which the Charity can continue to support families seeking to adopt children in need”. 

For further information on this case and on how the decision might affect your organisation, please contact Jerry Hawthorne by email or Gerald Kidd by email or  telephone  020 7821 8211.

24th August 2010 

Pothecary Witham Weld
70 St George’s Square
Pimlico
London
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