The Glasgow-based Catholic adoption service, St Margaret’s, can keep its charitable status while continuing to operate a policy that prioritizes married heterosexual couples following a landmark decision by the Scottish Charity Appeals Panel. At the heart of the ruling is a recognition of the charity as a Catholic organization with the right to manifest its religious belief.

The panel has overturned a ruling by the Office of the Scottish Charity Regulator (OSCR) which reviewed the practices of the charity in January last year following a complaint from the National Secular Society.  The OSCR ruled that St Margaret’s constitution—which states that the agency is established “to assess the suitability of applicants as adoptive parents in accordance with the teachings of the Catholic Church” — discriminated against same-sex couples in violation of the Equality Act 2010 and should therefore lose its charitable status.

The overruling of that decision is the first of its kind after endless defeats in the courts in England and Wales which have led to the closure of many agencies, or their severance from the Church.

Background

St Margaret’s is a charity founded in 1955 as an agency of the Church, whose trustees include the Archbishop of Glasgow and other bishops. There are 36 adoption agencies in Scotland, 32 of which are run by local authorities; until recently St Margaret’s was the only voluntary adoption agency operating in the West of Scotland. In 2011 it achieved 16 completed adoption placements out of a total of 218 in Scotland as a whole; in 2011-2012 the figure was 22. The charity has an excellent record of placing children with complex needs. At its most recent awards ceremony, the British Association for Adoption & Fostering named St Margaret’s among the top three in its category in the UK.

The charity has never received an enquiry from or on behalf of a same-sex couple and no gay person or couple has ever complained about being discriminated against by St Margaret’s. In principle the charity would consider an application to be considered as adoptive parents from a couple in a civil partnership. But its policy is governed by key passages in its Articles of Association, adopted in 2008:

The Society is established to promote (irrespective of creed) the  welfare of children, whose interests are paramount, to foster the stability of family relationships and to assess the suitability of applicants as adoptive parents all in accordance with the teachings of the Catholic  Church … 

… to offer an adoption service which has a concern for the spiritual care of the service users, rooted in the Catholic tradition … 

… to prepare and assess prospective adoptive parents and to make decisions on their suitability as prospective adopters, with an emphasis on providing Catholics and others adoption and family support services within the framework of the Catholic faith … 

Its policy is to give preference to couples within a stable loving relationship who have been married for at least two years, or to others who wish to adopt within the framework of the Roman Catholic faith. Lower priority is accorded to: (i) enquirers who have been married for less than two years;  (ii) couples in civil partnerships; (iii) single people; (iv) married couples who do not wish to adopt within the Roman Catholic faith. 

The decision

As always in these cases, the two European Convention on Human Rights (ECHR) rights in tension are Article 9 protecting freedom of religion and freedom to manifest religion, and Article 14, which prohibits discrimination against particular groups of people.

The Panel found that the OSCR “had not in its discussions with [St Margaret’s] taken due and proper consideration of the fact that [St Margaret’s] had as one of its objects the advancement of religion” and that the OSCR “has consistently taken the view that it is only Article 14 which applies” on the grounds that St Margaret’s is not a church or religious community but an adoption service, and therefore Article 9 does not apply. 

But the Panel disagreed, finding that the words “all in accordance with the teachings of the Catholic Church” in St Margaret’s Memorandum of Association,

taking into account the activities of the Charity one of whose main objectives in fact is the placing of children of the Catholic Faith who are to be adopted into homes where the Catholic Faith is taught and upheld, are sufficient to indicate that part of the establishment of the Charity is the advancement of religion. 

The OSCR also sought to claim that because the service was available not just to Catholics, this demonstrated that it was not a religious body. But the Panel found St Margaret’s reply — that it is key to Catholic charity to serve the whole of humanity — more persuasive. The Panel found that “what the Charity was seeking to achieve was part of the
manifestation of its religion.” Equally,

The Panel does not agree with [the Regulator] that [St Margaret’s] is merely an Adoption Agency or a non-religious charity simply because its main purpose appears not to be to conduct worship services. There are other religious charities for example who do not worship a deity but are entitled to be charities and The Act does not define religion and belief as exclusively for worship, hymn singing, services and sacraments. Differing religions and differing charities whose principal purpose is the advancement of religion carry out these activities to a greater or lesser extent.

Having agreed with St Margaret’s that Article 9 (freedom of religion) rights were engaged, the Panel then sought to balance those with the Article 14 (freedom from discrimination) rights of same-sex couples, bearing in mind also the rights of the child.

St Margaret’s argued that it discriminated not on grounds of sexual orientation but of marriage, privileging couples already married for two years. Because being married is not a “protected characteristic” in Article 14 (where discrimination is outlawed against people with “protected characteristics” such as race, gender, sexual orientation etc.), there is therefore no discrimination. Because same-sex couples are unable to have been married for two years they would not meet one of the criteria. 

Aidan O’Neill QC

Aidan O’Neill QC for St Margaret’s argued that “direct discrimination is where you have taken into account in the unlawful act the fact that you might not serve someone because he is a homosexual. On the other hand indirect discrimination would be where a general rule applies to everyone which then affects those who have a protected characteristic  — e.g. a height restriction in the police may be discriminatory against women.”

O’Neill argued that in the cases lost by the Father Hudson’s Society and Catholic Care — two of the English Catholic adoption agencies — “the charity had applied to The Charity Commission to have a complete ban on homosexuals using their services. That was Direct Discrimination and that is not what is applicable here.”

Having concluded that the discrimination against same-sex couples was “indirect” rather than “direct”, it then considered whether St Margaret’s had shown that “the discrimination is a proportionate means of achieving a legitimate aim” in the terms of the exemptions from the UK’s Equality Act (2010), concluding:

[St Margaret]’s aim is to be a faith based organisation and to manifest that faith inter alia in an adoption service and to ensure that Catholic Adoption is available to Catholic Children all of which were accepted by The Panel. Consequently the aim is legitimate; it is also proportionate in that if The Appellant was not carrying out the adoption service then there would be no Catholic Adoption Agency providing an adoption service for Catholic Children who in terms of The Adoption Act are entitled to be brought up in the Catholic faith. The Panel is of the view that the charity exemption applies.

The ruling and its implications

The Panel was critical of the OSCR for seeking to discount or ignore the religious character and motivation of St Margaret’s, which are so clear from its published founding principles. The OSCR viewed it as an adoption agency and a public body, when it was clear that it was more than an adoption agency per se “and that the whole purpose of what it is about is the manifestation of its religion and the religion of its members and supporters.”

Having concluded that Article 9 applies, the Panel went on to determine that any discrimination was indirect rather than direct and and that “indirect discrimination is allowed in terms of The Equality Act because it is a proportionate means of achieving a legitimate aim.” 

Neil Addison QC on his blog considers why the legal route pursued by St Margaret’s has been successful where that followed by the English Catholic adoption agencies failed. In the latter case, he argues, they sought to exclude gay couples, amending their charitable objects to restrict adoption services to heterosexuals; whereas in the case of St Margaret’s, the charitable objects were amended to say that all of its services were in accordance with the Church. In the balancing-act between Articles 9 and 14 of the ECHR, in other words, the English agencies tipped the scales in favour of the first, while St Margaret’s tipped them in favour of the second.

[Austen Ivereigh]