R Cornerstone (North East) Adoption and Fostering Service Ltd v The Office for Standards in Education, Children's Services and Skills

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Julian Knowles
Judgment Date07 July 2020
Neutral Citation[2020] EWHC 1679 (Admin)
Date07 July 2020
Docket NumberCase No: CO/2373/2019

[2020] EWHC 1679 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

LEEDS DISTRICT REGISTRY

Leeds Administrative Court

The Courthouse, 1 Oxford Row,

Leeds, LS1 3BG

Before:

Mr Justice Julian Knowles

Case No: CO/2373/2019

Between:
The Queen on the application of Cornerstone (North East) Adoption and Fostering Service Ltd
Claimant
and
The Office for Standards in Education, Children's Services and Skills
Defendant

Aidan O'Neill QC and Ben Silverstone (instructed by Ai Law) for the Claimant

Sir James Eadie QC and Sarah Hannett (instructed by Ofsted Legal Services) for the Defendant

Hearing dates: 6 – 7 May 2020

Approved Judgment

Mr Justice Julian Knowles

The Honourable

Introduction

1

This important case involves the question whether it is lawful for an adoption and fostering agency only to accept heterosexual evangelical Christians as the potential carers of fostered children. The Claimant, Cornerstone (North East) Adoption and Fostering Service Ltd (Cornerstone), seeks to judicially review a report by the Defendant (Ofsted), which found its carer recruitment policy to be in violation of equality and human rights laws and required it to change the policy.

2

Cornerstone is a charity based in the North East of England. It operates as an independent fostering agency (IFA). It specializes in offering foster and permanent homes to children in the care of local authorities. Cornerstone is founded on, and operates according to, its perception of evangelical Christian principles. It will only recruit carers (as well as staff and volunteers) who are prepared to abide by its Statement of Beliefs and Code of Practice. Among other things, these require them to be evangelical Christians and to refrain from ‘homosexual behaviour’ as it is described in the Code of Practice. In practice, the only potential carers Cornerstone accepts are evangelical married heterosexual couples of the opposite sex. It regards any other form of sexual activity as sinful.

3

Ofsted is a statutory body corporate and a non-ministerial government department whose statutory functions include the registration, regulation and inspection of IFAs.

4

Ofsted inspected Cornerstone in 2019. It provided its draft report to Cornerstone on 12 June 2019 (the Report). Ofsted concluded that Cornerstone's recruitment policy violates various provisions of the Equality Act 2010 ( EA 2010) and the European Convention on Human Rights (the Convention) read with the Human Rights Act 1998 ( HRA 1998). It required Cornerstone to change its policy. In this claim Cornerstone challenges Ofsted's conclusions.

5

Permission was granted by Jefford J on 9 October 2019.

6

The following principal issues arise on the claim:

a. whether Ofsted erred in concluding that Cornerstone's carer recruitment policy breaches the EA 2010 in respect of sexual orientation;

b. whether Ofsted erred in concluding that the Cornerstone's practices breach the HRA 1998;

c. whether the Report (and the recommendations contained in the Report) breach Cornerstone's rights under Articles 9, 10, 11 and 14 of the Convention as given effect by s 6 of the HRA 1998;

d. whether Ofsted failed to have regard to the guidance in the Social Care Common Inspection Framework (SCCIF): Independent Fostering Agencies (22 February 2017) (the SSCIF).

7

These main issues involve a number of sub-issues.

Factual background

Cornerstone

8

Pamela Birtle is the co-founder (with her husband) of Cornerstone. She has been its CEO since 2014. She has made three witness statements setting out the factual background to Cornerstone and its work.

9

Cornerstone was founded in 1999 and is based in Sunderland, with a supporting office in Doncaster. It is constituted as a charity by a private trust deed registered with the Charity Commission. It is also a company limited by guarantee in England and Wales. It has been registered with Ofsted as an independent fostering agency (IFA) since March 2006.

10

Cornerstone offers a range of foster placements, including short term, emergency and respite placements, but primarily it focuses on providing permanent placements – sometimes known as ‘Forever Families’ — ie, families who will care for a child, or a sibling group, beyond their time in care. Ms Birtle explains that Cornerstone specialises in working with children who can be hard to place. These include large sibling groups, children from black and minority ethnic backgrounds and those with complex medical histories. Ms Birtle says that several of the children currently in the care of families recruited by Cornerstone were previously thought to be unplaceable because of the severity of their needs.

11

Ms Birtle says that the vast majority of the placements arranged by Cornerstone have been successful in their stability and longevity. She says in Cornerstone's 20 years of operation, 80% of the children placed by it have gone on to be adopted by their foster carers. None of the adoptions have broken down.

12

Cornerstone is a relatively small organisation. At the time of the inspection I am concerned with, Cornerstone had 14 Approved Fostering Households which were caring for 18 fostered children. (This is distinct from the families and children in pre and post adoption). Cornerstone's funding derives primarily from payments made by local authorities across England, which are made when an authority places a child for fostering, with the money following the placement. Cornerstone operates on a not-for-profit, charitable basis (as opposed to a commercial basis).

13

Prior to the 2019 inspection, Cornerstone's IFA services were most recently inspected by Ofsted in 2015. In the resulting report, issued on 13 July 2015, Ofsted assessed Cornerstone as ‘Good’ in all categories (overall effectiveness; experiences and progress of, and outcomes for, children and young people; quality of service; safeguarding children and young people; and leadership and management). Ofsted also judged Cornerstone's Adoption Support service as ‘Good’ in all categories following an inspection of that service in 2019.

Cornerstone's Christian ethos and practices

14

Cornerstone's foundational purpose is to recruit Christian foster carers to provide loving and stable homes for sibling groups. At the time it was founded, Ms Birtle says that there was no specifically Christian organisation supporting foster carers in the North East of England. To that end, Cornerstone follows what it perceives to be Biblical injunctions to care for children in need by encouraging those from an evangelical Christian background to offer themselves as carers, particularly in circumstances where they might otherwise choose not to do so in the absence of the pastoral and religiously based and faith-imbued support which Cornerstone provides to them.

15

An example of a Biblical injunction which Ms Birtle refers to is Isaiah 1:17:

“Learn to do right; seek justice. Defend the oppressed. Take up the cause of the fatherless; plead the case of the widow.”

16

Also, in Psalms 82:3 it is written:

“Defend the poor and fatherless: do justice to the afflicted and needy.”

17

There are a significant number of other relevant Biblical passages referenced in Ms Birtle's first witness statement and in Cornerstone's Skeleton Argument.

18

Ms Birtle says that this approach has the objective of ensuring that those within what Cornerstone regards as the evangelical Christian faith can serve the wider community in a way which conforms with and reflects their religiously informed conscience and values. Cornerstone views its placing of a child for fostering and/or adoption, and the fostering and adoption by the parents, as an expression of its Christian faith in action. Cornerstone regards the adoption of a child as a profoundly important theological motif and theme in evangelical Christianity.

19

Cornerstone believes that by encouraging fellow Christians to be foster carers (and/or potential adoptive parents) and by supporting them (practically, emotionally and spiritually) to provide a loving and supportive home for a child whether as foster carers or as adoptive parents, Cornerstone and those recruited manifest their love of God and their Christian faith.

20

Cornerstone says that its Memorandum and Articles of Association (MoA) reflects these aims and beliefs. Clause 3 provides:

“The Charity's objects… are to provide a high quality adoption and fostering child care service according to Christian principles to alleviate the needs of children and young people who are, or may be, temporarily or permanently separate from their families and to promote the relief and care of children without families or parents able to care for them by the provision of substitute families able to meet their needs with the aim of improving the conditions of life and future of such children and young people.”

21

Clause 5 provides:

“The policy of the Charity shall be to restrict employment by the Charity and acceptance of any application to foster or adopt children through the charity to evangelical Christians being those:

(a) who shall have first signed the Statement of Beliefs set out in the Schedule hereto and

(b) whose personal lifestyle conduct and practice is consistent with the practice of the Statement of Beliefs set out in the Schedule hereto and traditional Biblical Christian standards of behaviour as set out by the trustees in their Code of Practice issued from time to time and who shall have first signed the said Code of Practice at the commencement of their employment or in the case of foster carers or adoptive applicants at the time of their initial application.”

22

The Statement of Beliefs in the MoA's Schedule sets out the beliefs which Cornerstone's staff and the carers it recruits are required to subscribe to. There are eleven statements of belief. They include the following:

“We...

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