Johns & Anor, R (on the application of) v Derby City Council & Anor  EWHC 375 (Admin) (28 February 2011) Summary
The England and Wales High Court recently found that the right to religious expression could be limited where attitudes towards sexuality might impact upon the rights of the child. The applicants, who were prospective foster carers, were found to have exhibited antipathy or disapproval of same-sex relationships or of people who identified as homosexual.
In the UK administrators are bound by legislation to consider whether a prospective foster carer would promote equality and diversity and encourage and support a child in a non-judgmental way irrespective of sexual orientation.
The defendant council advised the applicants that they would have difficulty approving their application on the grounds of their views on sexuality. The applicants initiated legal proceedings asserting discrimination on the grounds of religious belief. The Court rejected the application, concluding that the attitude of the applicants might affect their ability to care for a child that they might foster.
The dispute arose out of an inconsistency between the Christian beliefs held by the applicants and UK child protection and anti-discrimination laws. The applicants initiated legal proceedings to contest the approach of the local authority towards their application for approval as foster carers. As members of the Pentecostal Church, the applicants believed that sexual relations were only acceptable where they were within marriage and between one man and one woman.
During the application process the defendants expressed doubts as to how the applicants would reconcile their religious beliefs with the requirement that foster carers value people regardless of sexual orientation. When asked how they would respond to someone who is confused about their sexuality one of the two applicants said they would “gently turn them around”. The other said that they would “tell the child to ignore it”.
The defendant advised the applicant that they would have difficulties approving their foster care application because their beliefs were inconsistent with the requirement to value the sexuality of a child. The applicants responded by arguing that their application for foster care approval was rejected on the grounds of their beliefs, which were derived from their Christian faith.
The applicant contested the defendant’s suggestion that they withdraw their application to become foster parents on several bases. In particular, the applicants argued that:
- sexuality was not an important consideration when reviewing a foster carer application; and
- that the defendants acted in a manner that amounted to religious discrimination.
The Court found that the defendant was obliged to consider the National Minimum Standards for Fostering Services, the Statutory Guidance on Promoting the Health and Well Being of Looked-After Children and the Equality Act 2010. These instruments protect children from, amongst other things, discrimination on the grounds of religious belief and sexual orientation. In response to the conflict between the right to religious belief and the right to sexual orientation the Court reasoned that it was not possible to expect the defendant to overlook the applicant’s views on sexuality when reviewing their application.
The applicants argued that the Defendants, in suggesting that their application would be rejected, would set a precedent where the laws of the State could be used to de legitimise religious beliefs. In particular, the applicants asserted that this would lead to a blanket ban on Christians becoming foster parents. The Court considered Article 9 of the European Convention on Human Rights (“ECHR”). This Article provides that, “Everyone has the right to freedom of thought, conscience and religion…”
The Court relied on the meaning of Article 9 of the ECHR established in Islington London Borough Council v Ladele (Liberty intervening)  EWCA Civ 1357,  1 WLR 955 (“Ladele”). The Presiding Judge, Munby LJ quoted the following excerpt from Ladele,
The common law and ECHR Article 9 offer vigorous protection to the Christian’s right and every other person’s right to hold and express his or her beliefs and so they should. By contrast, they do not offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts…We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other.
The Court concluded that Article 9 does not protect every act motivated by a religious act or belief. Where the freedom to manifest religion is being asserted, the specific situation should be taken into account. In response, the Court was convinced by the defendant’s arguments that their attitude towards sexuality might well affect their behaviour as foster carers.
Relevance to the Victorian Charter
Johns is an example of the way in which a court may balance and resolve a conflict between the rights to manifestation of religious belief and non-discrimination, neither of which are absolute. In the present case, the court was also tasked to balance the rights of the child and gave paramountcy to that consideration.
The finding in Johns could have implications for conflicts that arise in Victoria involving the right to religious expression (section 14) and non-discrimination (section 8), particularly where that involves children. Section 14(1) of the Victorian Charter provides for the protection of the right to religion. Subsection (2) limits the right where there is coercion in the course of an individual’s adoption of a religion or belief. The right to religion could be further limited in circumstances similar to Johns where a child or minor is involved. Section 17 provides that children have a right to be apart of a family unit (section 17 (1)). Such a right is conditional upon the child’s best interests being satisfied.
The decision is at www.bailii.org/ew/cases/EWHC/Admin/2011/375.html.
Heath Paynter is a lawyer from Russell Kennedy on secondment with the Human Rights Law Centre