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

The Upper Tribunal (Sales J) gave judgment on 2 November 2012 in the case of Catholic Care v Charity Commission, which concerns the decision of the Charity Commission (‘the Commission’) to refuse consent to an application by Catholic Care (‘the Charity’) to amend its objects so as to permit it to continue its previous practice of refusing to offer adoption services in accordance with the tenets of the Roman Catholic Church to same sex couples.

The Upper Tribunal dismissed the Charity’s appeal against the decision of the First-Tier Tribunal (‘FTT’) (which, in turn, had dismissed the Charity’s appeal against the Commission’s decision refusing consent).

It was common ground before the Upper Tribunal that the issue to be resolved was whether the Charity could establish justification, for the purposes of Article 14 ECHR, of the proposed less favourable treatment (on the ground of their sexual orientation) of homosexual couples.  The Charity’s case was that if it was not permitted to continue its practice of offering adoption services in accordance with the tenets of the Roman Catholic Church restricting services to heterosexual (married) couples, it would lose its funding and would not be able to carry on providing adoption services, to the detriment of children.  Sales J held that if the Charity were able to show that there was a significant prospect that more children would be placed into adoption if it was allowed to discriminate against homosexuals (and therefore able to carry on providing adoption services) than would otherwise be the case, then the interests of those children would provide an argument in favour of permitting the Charity to proceed in that way.  But he went on to hold that the FTT had been entitled to find that this had not been established on the facts.   Accordingly, Sales J held that the FTT had been right to conclude that the Charity had not shown that there were weighty and convincing reasons why it should be permitted to discriminate against homosexuals as it proposed.

Monica Carss-Frisk QC was leading counsel for the Charity, and Emma Dixon was counsel for the Commission.