Summary

A Roman Catholic charity failed to show that there were weighty and convincing reasons which justified a change to its memorandum of association to enable it to lawfully continue a discriminatory practice under the exemption in the Equality Act 2010 s.193 so that it could restrict its adoption services to heterosexual couples.

Facts

The appellant Roman Catholic charity (R) appealed against a dismissal of its appeal against the respondent Charity Commission's refusal to consent to an amendment of its memorandum of association.

R had a practice of only providing adoption services to heterosexual couples. It received an inter-agency fee from local authorities for a successful placement and was supported in its work by funds raised through the church. The amendment to R's memorandum was necessitated by the enactment of the Equality Act 2010, which provided a limited exemption for charities under s.193 under which a person would not contravene the Act if benefits were restricted if that person acted in pursuance of a charitable instrument, and the restriction was a proportionate means of achieving a legitimate aim. The proposed amendment would explicitly state that R would only provide its adoption services to heterosexuals. The First-tier Tribunal concluded that although R had a legitimate aim, for the purposes of s.193, of seeking to place more children with adoptive families, the evidence did not support that that aim would be achieved by its proposed discrimination and that it was not objectively justified under s.193.

R submitted that the discrimination was objectively justified because (1) it achieved the legitimate aim of placing more children with adoptive families; (2) if the amendment was permitted, R could potentially raise money through the church to enable it to offer its services without taking an inter-agency fee.

Held

(1) The tribunal was right to conclude that R had not shown that there were weighty and convincing reasons why it should be permitted to change its memorandum of association in order to enable it to discriminate against homosexuals as proposed, EB v France (43546/02) [2008] 1 F.L.R. 850, Karner v Austria (40016/98) [2003] 2 F.L.R. 623 and Kozak v Poland (13102/02) (2010) 51 E.H.R.R. 16 applied. Although the extent of the benefits to children and the likelihood that such benefits might be achieved if R were allowed to discriminate were relevant considerations, the tribunal had been entitled to conclude that, for reasons associated with the inter-agency fee arrangements, the aim identified by R would not be achieved through its proposed discrimination, P (A Child) (Adoption: Unmarried Couples), Re [2008] UKHL 38, [2009] 1 A.C. 173 and Smith and Grady v United Kingdom (1999) 27 E.H.R.R. CD42 considered. There was not a material probability that the number of children placed in adoptive care would be increased by R's work as children who might have potentially found adoptive parents through R's adoption service were likely to be placed elsewhere with suitable adoptive parents, by another voluntary adoption service (see paras 31, 54-55 of judgment). (2) The tribunal had considered the possibility of R potentially providing adoption services without the inter-agency fee but R's vague and speculative suggestion of offering free services could not begin to amount to weighty and convincing reasons which were sufficient to discharge the heavy onus on R to show that its proposed discrimination would be objectively justified under European Convention on Human Rights 1950 art.14 and s.193. Although some criticism could be made of the tribunal's reasoning and it had erred in some respects, its conclusion was correct in law (paras 57-58, 61-64).

Appeal dismissed