Johns v Derby City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby |
| Judgment Date | 28 February 2011 |
| Neutral Citation | [2011] EWHC 375 (Admin) |
| Date | 28 February 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4594/2010 |
[2011] EWHC 375 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Lord Justice Munby
Mr Justice Beatson
Case No: CO/4594/2010
Mr Paul Diamond (instructed by Camerons Solicitors LLP) for the Claimants
Mr Jeremy Weston (instructed by Derby City Council, Legal Services) for the Defendant
Ms Karon Monaghan QC (instructed by the Equality and Human Rights Commission) for the Intervener
Hearing date: 1 November 2010
Lord Justice Munby :
This is the judgment of the court to which we have each made a significant contribution.
This is a rolled-up hearing of the claimants' challenge to the approach of the defendant local authority, Derby City Council, to their application to be approved as short-term, respite, foster carers. Proceedings for judicial review were instituted after a meeting of the defendant's Fostering Panel on 10 March 2009 considered the claimants' application but deferred a decision while the legal issues were considered. At that meeting the claimants' legal representative canvassed the idea of a joint approach to the court for a declaration. This was accepted by the defendant, which has, with the claimants, formulated a question on which the parties seek declaratory relief.
The issue that has given rise to this case concerns the approach of the defendant to the claimants' views about homosexuality.
The facts
The claimants are members of the Pentecostalist Church and believe that sexual relations other than those within marriage between one man and one woman are morally wrong. Between August 1992 and January 1995 they were approved as foster carers by Derbyshire County Council. They last fostered a child in September 1993 when they did so for one month. They applied for approval by the defendant in September 2004 but, because of professional and other personal commitments, withdrew that application. In June 2006 they again expressed interest in fostering. In January 2007 they applied to the defendant to be short-term foster carers. It is the treatment of that application which has given rise to these proceedings.
Following their application in January 2007 the claimants were assessed by Jenny Shaw, an independent social worker. She prepared a report (a 'discussion document') dated 27 August 2007, setting out a summary of the discussions she had had with the claimants including on 23 July 2007 and 7 August 2007. Since what the claimants are recorded as having said on those two occasions go to the heart of the case, we should set out the relevant parts of Ms Shaw's report.
Referring to the discussion on 23 July 2007, Ms Shaw said:
"both Eunice and Owen expressed strong views on homosexuality, stating that it is "against God's laws and morals". They explained that these views stemmed from their religious convictions and beliefs. Eunice explained at a later interview, that she had always been brought up to believe that having a different sexual orientation was unnatural and wrong, and that these convictions had not come about as a result of being "saved".
In our initial discussion on this issue, when asked if, given their views, they would be able to support a young person who, for example was confused about their sexuality, the answer was in the negative. Eunice at this time also mentioned a visit she had made to San Francisco, in relation to it being a city with many gay inhabitants. She commented that she did not like it and felt uncomfortable while she was there."
They are also recorded as telling Ms Shaw that they would not feel able to take a child to a mosque.
Referring to a subsequent discussion with Mrs Johns on 7 August 2007 (Mr Johns was not there) Ms Shaw said:
"I expressed my concerns regarding their views on homosexuality and said that I felt that these did not equate with the Fostering Standards where they related to the need to value diversity, address a child's needs in relation to their sexuality, enhance the child's feeling of self-worth and help the child to deal with all forms of discrimination. I emphasised the need for carers to value people regardless of their sexual orientation. Eunice responded by saying that she could not compromise her beliefs, but that she did value people as individuals and would be able to support a young person on that basis. Eunice informed me that her nephew, who lived in the U.S., is gay, and that she has been to stay with him and his partner, and had not treated them any differently from anyone else.
I discussed with Eunice, four possible scenarios, and asked how she might support the young person:
1 Someone who is confused about their sexuality and thinks they may be gay.
2 A young person who is being bullied in school regarding their sexual orientation.
3 A young person who bullies others regarding the above.
4 Someone in their care whose parents are gay.
Eunice's response to the first situation was that she would support any child. She did not offer any explanation as to how she would go about this. On a previous occasion when the question had been put to Owen, he responded by saying that he would "gently turn them round". In the second situation, Eunice said she would give reassurance and tell the child to ignore it.
In response to the third situation, Eunice said she didn't know what she would do. In the case of someone whose parents are gay, Eunice said that it wouldn't matter, and that she would work with any one."
She recorded her judgement as being that "Eunice's response to these hypothetical situations was somewhat superficial, and ignored the impact that her strong beliefs on the issue, could have on her work with young people." However, at a much earlier stage in the process Mrs Johns had assured a social worker that she would never seek to impose her belief system on a child or to denigrate the parents for their lifestyle or sexual orientation.
Mr Johns's response to the first postulated scenario is, it might be thought, particularly revealing. There can be no doubting the meaning and significance of his reference to "turning" such a child round.
All in all, between June and August 2007, Ms Shaw had six assessment sessions with the claimants. The issue of how church activities would fit in with offering respite care, which often happens at weekends, was discussed. Mrs Johns stated she felt she could not give up going to church which she attends twice on Sundays and was doubtful about alternating with her husband if she could not take a child with her. Her husband agreed and it was made clear to them that this might limit them in terms of which children could be placed with them. A copy of the National Minimum Standards for Fostering Services (see further below) was given to the claimants on 6 August 2007. During the meeting on 7 August 2007 with Mrs Johns, Ms Shaw told her that they would have difficulty in being approved by the Fostering Panel in the light of their views on sexuality and one option would be for them to withdraw their application. The following day (8 August 2007) Mrs Johns telephoned Ms Shaw to say that they wished to go to Panel.
Ms Shaw's report to the Fostering Panel was dated 27 August 2007. On 13 September 2007 Ms Shaw went to see the claimants again, accompanied on this occasion by the Service Manager – Fostering, Sally Penrose. Ms Shaw and Ms Penrose's subsequent note dated 24 September 2007 records what happened:
"In relation to their expressed views on same sex relationships, Sally stressed that these views did not equate with the Fostering Standards which require carers to value individuals equally and to promote diversity. Eunice and Owen were not able to acknowledge that their very strong beliefs in this area would be likely to impact on their ability to support and reassure a young person who may be confused re their sexual identity. Having read the report, Eunice disputed that she had said that she could not support anyone who was having such difficulties. She felt that her beliefs would not affect how she was able to care for a young person, and stated that we were really saying that they could not be foster-carers because they are Christians."
The same note records a telephone conversation between Ms Penrose and Mrs Johns on 17 September 2007 when Mrs Johns "enquired whether a change in the type of fostering they were offering to undertake would be considered if it helped with the issue of their availability." The note continues:
"By this Eunice was indicating that maybe time limited placements would better suite their family lifestyle and routines. Whilst this may address the issue of needing to be available to a child and his/her family it does not deal with the fundamental difficulty of the applicants views and beliefs regarding Lesbian and Gay relationships and how this conflicts with meeting the National Minimum Standard 7, Valuing diversity."
The Panel met on 13 November 2007 and considered Ms Shaw's report. The Panel considered the following "main issues":
"The department needs to be careful not to appear to discriminate against them on religious grounds. The issue has not arisen just because of their religion as there are homophobic people that are non-Christian.
The ability to promote diversity is the main issue."
The claimants then addressed the Panel. Mrs Johns spoke first:
"I told Jenny, 'I will not compromise my religious beliefs'. Mrs Johns referred to an event in the press regarding a pastor who had a foster...
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