Fostering, Faith & Fear

According to the BBC, last Monday, the High Court upheld Derby City Council's right to refuse to allow a couple, Mr & Mrs Johns, to foster children "because of their traditional religious views":-

A Christian couple opposed to homosexuality have lost a battle over their right to become foster carers. Eunice and Owen Johns, 62 and 65, from Derby, said the city council did not want them to look after children because of their traditional views. The pair, who are Pentecostal Christians, say they were "doomed not to be approved". The High Court ruled that laws protecting people from sexual discrimination should take precedence.

Irritatingly, the BBC reports did not contain a link to the text of the High Court judgement itself; in my view sloppy reporting.

On his blog, Gavin Drake - who says of himself "I’m not a lawyer, but I have sat through many court cases in the Magistrates, Crown, County and High Courts" - says the media take on this is nonsense:-

A Christian couple have lost their High Court bid to overturn Derby City Council’s ban on them fostering children because of their orthodox Judaeo-Christian views on homosexuality.

It’s a story you’ll be hearing a lot about.  But it didn’t happen.  That is not what happened in the High Court today.

For a start, the couple had not been banned from adopting or fostering – the City Council’s social services and children’s panel hadn’t made a decision about whether or not Eunice and Owen Johns would make suitable foster parents.  But, after social workers asked questions about how their Christian views would affect their response to a child who said they were gay; the couple and the council decided to make a joint application to the High Court for guidance.

 He continues:-

So, what did the court decide?  Well, it decided not to make any declaration and there is no order ... It isn’t a landmark judgement.  It will have a serious impact for nobody – not least for Owen or Eunice Johns who could still be allowed to foster by Derby City Council if they proceed with their application ... That’s the decision of the High Court today – to not make a decision on what appears to be a badly thought out, badly argued, badly presented case.

 Meanwhile, the Christian Legal Centre had this to say, in a press release:-

In a landmark judgment, which will have a serious impact on the future of fostering and adoption in the UK, the High Court has suggested that Christians with traditional views on sexual ethics are unsuitable as foster carers, and that homosexual ‘rights’ trump freedom of conscience in the UK. The Judges stated that Christian beliefs on sexual ethics may be ‘inimical’ to children, and they implicitly upheld an Equalities and Human Rights Commission (EHRC) submission that children risk being ‘infected’ by Christian moral beliefs.

The Christian Legal Centre is a pressure group, who have brought several of these "Christians persecuted for their beliefs" cases. Their report does have a link which allows you to download the text of the High Court judgement, for some reason in Microsoft Word format. Gavin Drake's blog entry gives an easier to use link direct to the case summary on the BAILII (British And Irish Legal Information Institute) website, http://www.bailii.org/ew/cases/EWHC/Admin/2011/375.html.

I'm not a lawyer either, but this case summary seems to me to be clear and well-written: whilst Gavin Drake overstates his case somewhat, it is obvious that he is essentially correct. This is not a landmark judgement, the judges declined to make any order at all:-

1. We have stated our misgivings about the exercise of the jurisdiction to consider whether to grant any (and if so what) declaratory relief. The defendant has taken no decision and there is likely to be a broad range of factual contexts for reaching a particular decision, the legality of which will be highly fact-sensitive. Moreover, the parties have: (a) been unable to agree on an appropriately focused question for the court to address, (b) each identified questions that do not raise a question of law that can be answered with anything approaching a simple 'yes' or 'no', and (c) furnished the court with no evidence.

1. ... 

1. For the reasons given in [107] we have concluded that we should make no order.

Essentially Mr Paul Diamond, from the Christian Legal Centre, on behalf of the Johns, was criticised by the judges for not bringing a clear statement of issue for resolution, for trying to use legal arguments that had already been rejected in previous judgements, and for "extravagent rhetoric":-

Mr Diamond lays much emphasis upon various arguments, many of them couched in extravagant rhetoric, which, to speak plainly, are for the greater part, in our judgment, simply wrong as to the factual premises on which they are based and at best tendentious in their analysis of the issues.

Which, as legal language goes, is about as damning as you can get.

Much was made in the BBC report of the claim that in general rights over sexual orientation took precedence over rights of religion. Presumably the BBC reporter only skimmed the text of the judgement itself:-

While as between the protected rights concerning religion and sexual orientation there is no hierarchy of rights, there may, as this case shows, be a tension between equality provisions concerning religious discrimination and those concerning sexual orientation. Where this is so, Standard 7 of the National Minimum Standards for Fostering and the Statutory Guidance indicate that it must be taken into account and in this limited sense the equality provisions concerning sexual orientation should take precedence.

In other words, no one right is more important than another, only the legal context (various required standards, etc) determines which takes precedence in law in a particular case.

My reading of the judgement is that the key point in law is about what a person does, and whether that is lawful, not why they do it. Thus, if a couple show evidence that they would not follow the legal framework required for foster carers, then it makes no difference whether the reason for that was simple prejudice or was religious belief. So long as the couple's behaviour can be shown to be unsuitable for fosterers then the reason for that behaviour isn't the point. There is no religious discrimination in law because an atheist or agnostic who behaved the same would be treated the same.

If members of a religious group don't like a particular law then, in the British system of democracy, they are at liberty to campaign for a change in that law. But in the meantime, they cannot expect to be exempted from it.

In their evaluation of the suitability of the Johns, Derby City Council asked about their response to a number of hypothetical (but realistic) situations. For example, would they be able to support a young person who was confused about their sexuality; would they feel able to take a young person from a Muslim background to a mosque; how would they support a young person who was being bullied over their sexuality; how would they deal with one who was bullying others regarding the above; and how they would support someone in their care whose parents were gay (or whose future adoptive parents were gay).

Law or no law, statutory guidelines or no, it seems to me that these are situations where there is a response which is about caring for and supporting people, or there is a response which is about being judgemental. Jesus famously pulled up the Pharisees again and again because they set their rules above the people for whose benefit they had been given.

If a teenager is confused about their own sexuality then hammering them with your views about homosexuality's 'sinfulness' is not going to help anybody. They need to know that they are valued and cared for, and they need the time and space and support to work things through for themselves. They matter, and other people matter, for themselves, not because of their possible sexual orientation. You don't bully other people, and if others bully you then you are entitled to action to have it stopped - that is simple justice.

This is not to say that I don't think Christians, or anyone else for that matter, aren't entitled to opinions on such matters. But the rule in fostering (and, I believe, in raising our own kids) is that the needs of the young person come first. That's what they/we sign up to.

My beliefs about marriage are fairly orthodox, and based around Genesis 2:20-24 (modified by 1 Corinthians 7:25-28). I am all too aware that I fall short myself, so I see no justification for pointing fingers at those who fall short in a different way. My kids are teenagers and I have not, and will not, knowingly compromise their right to make their own choices (and to mess things up in their own ways, not mine). My job, I think, is to help them to know that their parents love them, and that God loves them, for themselves, and to have the sense of worth (and hopefully the closeness to God) which allows them to make thoughtful decisions in their own way and their own time.

Fosterers usually have a lot less time to make a difference than parents, natural or adoptive, so that is all the more reason for them to focus on what is really important: building the young person up to cope with the stress and change of their lives, not running them down.