Catholic Care (Diocese of Leeds) v Charity Commission for England & Wales

Factual and Procedural Background

The Appellant ("the Charity") is a Roman Catholic charity previously engaged in providing adoption services, including identifying, screening, placing children with adoptive parents, and post-adoption support. Historically, until the end of 2008, the Charity limited its adoption services exclusively to heterosexual couples forming what was described as a "Nazarene family" (mother, father, and child), excluding same sex couples, in accordance with Roman Catholic doctrine.

Following changes in equality law, notably the Equality Act 2010, the Charity sought permission from the Charity Commission to amend its Memorandum of Association to explicitly permit discrimination against homosexuals by restricting adoption services to heterosexuals. The Commission refused consent, and the Charity appealed to the First-Tier Tribunal (FTT), which dismissed the appeal. The Charity then appealed to the Upper Tribunal (Tax and Chancery Chamber) on points of law.

The legal framework includes section 193 of the Equality Act 2010, which provides a limited exemption allowing charities to restrict benefits to persons sharing a protected characteristic if done in pursuit of a charitable instrument and if the restriction is a proportionate means of achieving a legitimate aim. The Charity's application aimed to rely on this exemption to justify its discriminatory practice.

The procedural history includes an earlier High Court decision remitting the matter to the Charity Commission for reconsideration, after which the Commission again refused permission, leading to the appeal before the FTT and subsequently the Upper Tribunal.

Legal Issues Presented

1. Whether the Charity's proposed amendment to its Memorandum of Association to exclude same sex couples from adoption services is objectively justified under section 193 of the Equality Act 2010.
2. Whether the FTT erred in law or fact in its assessment of the evidence regarding the Charity's justification for discrimination.
3. Whether the analogy with Article 14 of the European Convention on Human Rights (ECHR) is appropriate in interpreting section 193 of the Equality Act 2010.
4. Whether the FTT misapplied the principles set out in In re G (Adoption: Unmarried Couple) in relation to the Charity's proposed exclusion of same sex couples.
5. Whether the FTT erred in its assessment of the availability and impact of voluntary funding linked to the Charity's ability to discriminate.
6. Whether the FTT erred in its consideration of the availability of adoption services to same sex couples from other agencies as a factor in the justification analysis.
7. Whether the FTT misapplied the reasoning in Smith and Grady v United Kingdom regarding the legitimacy of the Charity's motivation and the role of third party donor attitudes.
8. Whether the FTT applied an incorrect standard of causation in assessing the likelihood of increased adoptions resulting from the Charity's proposed practice.
9. Whether the Charity's proposal lacked necessary flexibility, such as allowing celibate, committed same sex couples to adopt, and if this affects proportionality.

Arguments of the Parties

Appellant's Arguments

• The Charity argued that its proposed amendment serves the legitimate aim of increasing the number of children placed with adoptive families, particularly "hard to place" children.
• Discrimination against homosexuals is proportionate because same sex couples excluded from the Charity's services can obtain adoption services elsewhere.
• Without permission to discriminate, the Charity would lose critical voluntary funding tied to adherence to Roman Catholic doctrine, resulting in closure of its adoption service and a consequent loss of adoption opportunities for children.
• The FTT erred by applying an overly stringent test of causation, incorrectly requiring inevitability rather than a realistic prospect or material probability of increased adoptions.
• The FTT misapplied In re G by failing to properly consider that the Charity's approach would increase the pool of potential adopters and thus serve children's interests.
• The availability of adoption services to same sex couples elsewhere was improperly disregarded as a relevant consideration in the proportionality analysis.
• The FTT misunderstood the application of Smith and Grady; the Charity’s motivation based on religious beliefs and the interests of children constitutes a legitimate justification.
• The Charity argued that the proposal’s lack of flexibility (e.g., not allowing celibate same sex couples) aligns with Church tenets and is necessary to maintain funding and service provision.
• Alternatively, if the Upper Tribunal finds errors in the FTT’s decision, it should remit the matter for reconsideration on a proper basis.

Respondent's Arguments

• The Charity Commission defended the FTT’s reasoning and ultimate conclusion that the Charity failed to show objective justification for discrimination.
• Private prejudice of donors cannot justify discrimination; restricting benefits based on unrelated criteria to charitable aims is not charitable.
• The Charity's proposed aim would not be pursued proportionately because the proposal lacks flexibility to accommodate particular cases where discrimination would be contrary to children's best interests.
• The availability of adoption services to same sex couples from other providers is relevant to the proportionality assessment, reducing the impact of discrimination.
• The FTT correctly applied the law and did not err in requiring weighty and convincing reasons to justify discrimination under Article 14 and section 193.
• If the Upper Tribunal does not dismiss the appeal, it should remit the case for reconsideration rather than substitute its own decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal began by affirming the applicability of section 193 of the Equality Act 2010 and its interpretation in line with Article 14 of the ECHR, requiring that any differential treatment based on sexual orientation must be objectively justified as a proportionate means of achieving a legitimate aim.

The Charity identified its legitimate aim as increasing the prospect of placing more children, especially "hard to place" children, with adoptive families. The Tribunal accepted this as a legitimate aim but scrutinized whether the Charity’s discriminatory method was capable of achieving it.

Evidence from the Charity and expert witnesses was considered, including the operation of the adoption system, the inter-agency fee arrangements, and the availability of potential adopters. The Tribunal found that the system already had a surplus of potential adopters and that the Charity’s presence or absence was unlikely to affect the number of children adopted. The Tribunal preferred the expert evidence that the Charity’s proposed method would not realistically increase adoption placements.

The Tribunal examined the impact of the Charity’s proposed discrimination on the pool of potential adopters and found the Charity’s argument that it would increase the pool to be speculative and unsupported by evidence. It rejected the claim that excluding same sex couples would increase the number of adoptions.

Regarding funding, the Tribunal accepted that the Charity’s voluntary income was linked to adherence to Roman Catholic doctrine and that loss of permission to discriminate could lead to loss of funding and closure of the adoption service. However, it found that even accepting this, the Charity failed to show that the discriminatory practice was proportionate and objectively justified. It applied the principle that negative attitudes of third parties alone cannot justify discrimination but acknowledged that resultant detriment might be considered if sufficiently weighty.

The Tribunal considered relevant Strasbourg jurisprudence and domestic case law, recognizing that promotion of traditional family life is a legitimate aim but emphasizing that discrimination against homosexuals requires particularly weighty reasons to be justified. The Charity failed to meet this high threshold.

The Tribunal also addressed the Charity’s criticisms of the FTT’s reasoning and found some points valid, such as the FTT’s overly stringent causation test and speculative findings about deterrence of same sex couples. Nevertheless, these did not affect the ultimate conclusion that the Charity had not established objective justification.

Finally, the Tribunal rejected arguments that the FTT misapplied Smith and Grady and that the Charity’s proposal lacked necessary flexibility, concluding that these points did not alter the outcome.

Holding and Implications

The Upper Tribunal DISMISSED the appeal.

The Tribunal held that the Charity failed to demonstrate that its proposed discriminatory practice of excluding same sex couples from adoption services was objectively justified under section 193 of the Equality Act 2010. The Charity’s aim of increasing adoption placements, while legitimate, was not capable of being achieved by the discriminatory method proposed. The evidence indicated no realistic prospect that discrimination would increase adoption numbers, and the weighty reasons required to justify discrimination were absent.

As a result, permission to amend the Charity’s Memorandum of Association to permit such discrimination was refused. The decision confirms the strict application of equality law principles and the high evidential burden on charities seeking to rely on exemptions permitting discrimination based on sexual orientation. No new precedent was set beyond affirming established principles and applying them to the facts of this case.