Court of Appeal judgement on Cornerstone (North East) Adoption and Fostering Service
The Court of Appeal recently delivered a judgement about Cornerstone (North East) Adoption and Fostering Service. Cornerstone describes itself as the only Christian Independent Fostering Agency (IFA) in England, and is a small independent agency based in the North East of England, established in 1999.
This is an important case of a fostering agency being challenged over whether their recruitment policy is discriminatory or not – and whether it is lawful for a fostering agency to only accept heterosexual, married, evangelical practicing Christians as foster carers.
The case first came to light following a complaint received by Ofsted from a prospective foster carer about Cornerstone’s recruitment policy. Ofsted in their draft inspection report in 2019, concluded that Cornerstone’s recruitment policy was unlawful as it contravened the Equality Act 2010 and the Human Rights Act 1998 with direct and indirect discrimination against gay men and lesbian women. The report also judged the leadership and management team of Cornerstone as inadequate because of this policy. No issues relating to the care offered to children or support for carers were identified.
Cornerstone took exception to this draft report and argued that their recruitment policy was permissible because of the organisation’s ‘right to religious freedom’. It applied for a judicial review of Ofsted’s findings. The resulting judgement determined that Cornerstone were indeed directly discriminating on the grounds of an individual’s sexual orientation and that therefore Ofsted’s report should be upheld and shared publicly.
Cornerstone lodged an appeal against this judgement to the Court of Appeal in June 2021. Following a hearing, the Court ruled that Cornerstone’s arguments for why its policies were legal, were not upheld. The judgement said:
“Cornerstone's policy, which specifically requires carers not to engage in homosexual behaviour, is as clear an instance of direct discrimination "because of" a protected characteristic as can be imagined.” It also stated that Cornerstone had not provided reliable evidence which proved that the policy of discrimination against homosexuals was necessary and “…that there would otherwise be a seriously detrimental impact on carers and children.”
Cornerstone did not offer any evidence that supported their recruitment policy to discriminate against same sex couples, due to the quality of their care differing from heterosexual counterparts. This is important to note – the right to religious freedom can be used in the recruitment of foster carers, but, the right to have same sex relations should not preclude one from applying to become a foster carer.
This case highlights numerous dilemmas connected to the faith, religious beliefs, and practices of foster carers and the children and young people whom they care for.
With a national shortage of foster carers, it is vital to make sure all faith-based fostering organisations are supported to continue to recruit foster carers within their specific faith. But this case illustrates that this cannot mean discriminating against non-heterosexual foster carers or, crucially, the children and young people they are caring for who may be thinking about many aspects of their lives, including reassessing their faith, exploring their sexuality or questioning the gender to which they were assigned at birth.
Some of these challenging dilemmas were raised in the October meeting of CoramBAAF’s Foster Care Advisory Committee, and we will continue to play our role in making sure we carry on having these important conversations.