Breaking - Christians with Traditional Moral Views can still be Foster Parents

One of the most remarkable things about the judgement (or rather, the lack of it) handed out yesterday in the Christian Foster Parents ruling is that many of the people reporting on it have obviously not read the 109 paragraphs of deliberation that the High Court presented yesterday.

While there are still one or two valid concerns about some of the direction of the judges’ ruling, on the whole the ruling is a good piece of law which, in summary, clarifies that there is nothing much to be clarified at this moment. This court deliberation was brought about not because the Johns (the couple in question) were refused as foster parents, but rather because during the application process an issue around the acceptability or otherwise of the Johns’ Christian views was raised. Instead of working the issue through with the social workers, the Johns applied for a judicial review when their application was deferred. The Johns sought that the judge would, in response to the evidence presented, declare the statement that is found in paragraph 27 of the ruling, namely

(a) Persons who adhere to a traditional code of sexual ethics, according to which any sexual union outside marriage (understood as a lifelong relationship of fidelity between a man and a woman) is morally undesirable, should not be considered unsuitable to be foster carers for this reason alone. This is a correct application of the National Minimum Standards 7 ‘Valuing Diversity’.
(b) Persons who attend Church services at a mainstream denomination are, in principle, suitable to be foster carers.
(c) It is unlawful for a Foster Service to ask potential foster carers their views on homosexuality absent the needs of a specific child.
(d) It is unlawful for a public authority to describe religious adherents who adhere to a code of moral sexual ethics namely; that any sexual union outside marriage between a man and a woman in a lifetime relationship of fidelity is morally undesirable, as ‘homophobic’.

The Council in response sought the following declaration

A fostering service provider may be acting lawfully if it decides not approve a prospective foster carer who evinces antipathy, objection to, or disapproval of, homosexuality and same-sex relationships and an inability to respect, value and demonstrate positive attitudes towards homosexuality and same-sex relationships.

The Judge declared neither and instead criticised both parties (though to be fair, the Johns much more than the Council) for bringing the case in the first place, in particular the lack of focus on what outcome was being asked for.

What the judgement does suggest is that it is perfectly reasonable for the local authority not to place children for respite care with foster parents who are explicitly opposed in all forms to homosexuality. In some sense though this is no surprise since the law of the land outlaws discrimination on the grounds of sexual orientation and children in foster care are ultimately the responsibility of the state and NOT the foster parents (as opposed to adopted children who enter the family, in most cases, irrevocably). Hence, the judgement states,

The materials relied on by Mr Weston, including in particular the various policies set out in the National Minimum Standards for Fostering, the Statutory Guidance and the defendant’s own documents, all go to emphasise the need to value diversity and promote equality and to value, encourage and support children in a non-judgemental way, regardless of their sexual orientation or preference. That duty does not apply only to the child and the individual placement, but to the wider context, including the main foster carer, a child’s parents and the wider family, any of whom may be homosexual. In these circumstances it is quite impossible to maintain that a local authority is not entitled to consider a prospective foster carer’s views on sexuality, least of all when, as here, it is apparent that the views held, and expressed, by the claimants might well affect their behaviour as foster carers. This is not a prying intervention into mere belief. Neither the local authority nor the court is seeking to open windows into people’s souls. The local authority is entitled to explore the extent to which prospective foster carers’ beliefs may affect their behaviour, their treatment of a child being fostered by them. In our judgment the local authority was entitled to have regard to these matters; indeed, if the local authority had failed to explore these matters it might very well have found itself in breach of its own guidance and of the National Minimum Standards for Fostering and the Statutory Guidance to look no further.

That said, the Judge could not make a specific judgement on the merits of otherwise of the rejection of the Johns are foster carers since the Johns had not, at this point, been either recommended or rejected for fostering. This was part of the frustration of the Judge, that he had no ability to rule since a final decision in the matter had not been made. This means, and this is crucial for understanding the outcome of this matter, that the Johns can still proceed with their application for fostering and they may yet be accepted by Derby Council.

So what are the key points that come out of the judgement (and if you want to comment on the substance of the case rather that just principles around it it is vital that you read it) and how might things move forward? A few thoughts.

The Judge was highly critical of the evidence presented on behalf of the Johns by the Christian Legal Centre (CLC). He complained (this is not too strong a word I believe) that their barrister was presenting arguments that had already been rejected in a number of previous cases (e.g.McFarlane v Relate Avon Limited, Islington London Borough Council v Ladele).

I have worked with the CLC on a number of cases and have great respect for their team and what they are trying to achieve. That said, I wonder whether this ruling might be experienced as a wake up call of some kind. If the arguments currently being presented by the CLC on some cases are consistently being rejected by courts, is it time to accept that they are not good enough and a new approach needs to be found? I understand the concept in the minds of some at the CLC that this case is part of an ongoing campaign to change the public consensus on the place of Christianity in the body politic, but if that is the case the solution will not come in the judiciary but in the legislature. At present, the judiciary are very clear that Christianity no longer has any priviliged position in English law. The only way to change that is not in the courts (who, it appears, will now consistently rule that christian moral positions have no right to trump state legislated non-discrimination positions) but in Parliament. Such a solution is as yet a long way away.

One consequence of this is that Christians need to grow up and realise (a) that they no longer live in a country which gives the Christian faith a pre-eminent position in the jurisprudence of the land (the judgement in para 30 recognises that this has been the case for at least a century) and that therefore (b) there is an obligation, as Jesus instructs us, to render unto Caesar things that belong to Caesar. At the end of the day, those who wish to represent a non-Christian state (and foster parents are representatives of the state) need to fulfil various obligations to that state which owe more to what Caesar desires rather that what God ordains. To be a foster carer is not a right and therefore a Christian’s liberty is not being constrained if the state rules that a particular couple cannot be foster carers because their views conflict with the environment that the state wishes the children in its care to be raised in.

It would be a different matter of course if the state began to turn its attention to the way that biological (and adoptive?) parents sought to instill a moral framework in their children. At that point there would be an invasion of private family life and, I suspect, the courts might rule differently.

An interesting thought to finish with. If, as the ruling suggests, the state no longer has any obligation to defer to the Christian faith in matters of jurisprudence and law, what the heck is the Archbishop of Canterbury doing crowning the monarch? When the monarch is crowned (s)he affirms the following declaration.

Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law? Will you maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England? And will you preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them?

If the state no longer views the Christian faith as having any predominant role in the judicial life of the country, why does the monarch agree the opposite? If the State has no intention of maintaining the Laws of God and the true profession of the Gospel, why does the monarch claim that it does? Increasingly the state is legislating to marginalise the Christian faith in public life (which is not the same as outlawing it), so the monarch (who defers his/her powers to Parliament and the Government) is blatantly not fulfilling the terms of the oath. Is it time for the Church of England to cease with the pretence of being integral to the fabric of the state, dis-establish and let Caesar rule as he sees fit until such a time as the State sees once again the necessity to live under a clear acknowledgement of the God of the Universe who has revealed himself in Jesus?

“Church of England cuts formal ties to State” – Perhaps that might be the real shock headline resulting from this case.

Read more at Thinking Anglicans, Gavin Drake, the Religion and Law blog and in the Guardian and Telegraph.

Update – Cranmer presents an articulate defence of the Johns.

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  • Tom

    On Question Time (BBC1) last night the case was discussed. Margaret Beckett said she regretted having to say it but was sure that the Johns's statement that they believed they should ‘turn’ a foster child who might be gay and that a child in their care who fell victim to homophobic bullying should ignore it made them unsuitable to foster. David Starkey who is gay and an atheist and who had a religious mother said the homophobic treatment he received as a youngster made him determined to make something of his life and come out all the stronger. He was strongly on the side of the Johns. But perhaps most surprising was Ian Duncan Smith who said he had studied the case in some depth and come to the conclusion that foster parents do not have the right to impose their particular views, beliefs or prejudices on a child who is not theirs so he thought the Johns, saying they couldn't hold back on their deeply-held views if asked, were not the right people to foster.

    • Danielle

      Wouldn’t foster parents expressing homosexual behaviour and/or their approval of homosexuality strongly influence a child’s thinking? I suppose because our society largely views homosexuality as positive that is an imposition they welcome.

    • Jill

      I have just watched this on You Tube, Tom.

      http://www.youtube.com/watch?v=Ctrua5c-AYU&fe

      Good to hear some common sense from David Starkey and from the guy from the Sunday Telegraph – who hits the nail on the head when he says that tolerant people can be driven to intolerance. I have seen much evidence of this in the past few days on blogs – even Guardian readers appear to be waking up to this new tyranny.

      I am baffled by IDS. I can't quite make out what he is trying to say. What I think has happened (and this is only a guess) is that he (probably all of them) have been told in no uncertain terms not to say anything that might be remotely construed as anti-gay – thereby giving weight to the smear of the 'Nasty Party' for the Conservatives – and one cannot do this without getting tied up in all sorts of knots.

      Whatever the reason, I am very disappointed. He is one of the very few people in politics that I have felt had any integrity. What a betrayal.

      A bit disappointing that David Starkey got cut off in mid-flow. I would like to have heard the rest of what he said. Do you remember, Tom?

      • Tom

        Hello Jill

        I think IDS is too much his own man for that. I couldn't stand the journalist – what a loudmouth interrupting all the time! I think David Starkey belongs to the "beating-never-hurt-me" school. Unfortunately some children can be terrorised by adults. I once heard Clive James say on the same programme "Gay men have their faults but it takes a heterosexual man to terrorise a child". Of course none of that could apply to the Johns who seem a kindly couple, but I think IDS was a voice of compassion and concern for the child – the important ingredient in all this, not the rights of the Johns in the end to have their, in season or out of it.

        Don't get carried away, Jill, it wasn't a betrayal. This ought not to be turned into a war, you know. I think that's what the judges found objectionable in Mr Diamond's submission to the court.

        • Tom

          in the end to have their say – I should have said.

      • Ryan

        The New *Tyranny*? Please. Who is being persecuted? Where are the camps? Lots of unmarried heterosexual couples – including a director of the National Secular Society! – stayed at the Johns B&B without problems. Orthodox Christians condemn heterosexual fornication. So allowing heterosexual fornicators in your B&B but not gay couples is indeed prejudice, not the heroic maintaining of our country's Christian ethic.

        Starkey revels in being provocative. When interviewed in gay magazines he points out his love for Thatcher, when interviewed by the conservative tory press he boasts of his promiscuously gay youth. And that's aside from the fact that "even a gay says x that accords with our views!" is a ludicrous methodology unsurprisingly lapped up by the 'C'.I. Is it not an 'exception-proves-the-rule' situation, aside from also being a version of argumentum ad verecundium that's hardly worth the attention being paid to it.

        The Guardian deletes offensive comments ('offensive' in an e.g. ad hom or 'unmistakably abusive' sense, not a 'contrary to the party line' one).In contrast, that 'Real Street' blog contained lots of stuff that I'm pretty sure wouldnt' be allowed on this site – which is hardly a Gay one! For example, note the fellows talking about how homosexuals deserve persecution because homosexuality is an attraction to s*** (I'm not making this up), not a member of the same sex – hence the popularity of sodomy! And then there's the author of the blog *boasting* about the amount of twitter replies he got when he posted a piece conflating homosexuality and paedophilia. Or the fellow posting a link to a homosexual.conspiracy type site, invariably citing gays-as-actual-nazis nonsense. Godwin's law is no such thing, but such websites are nothing so much as anti-gay spins on the Protocols of the Elders of Zion. Now *that's* the kind of discourse that leads to Tyranny.

        • http://www.peter-ould.net Peter Ould

          Slightly edited your comment Ryan, not because I'm a prude but rather to avoid some spam bots.

          And yes you're right – we don't do that kind of conversation here.

          • Jill

            Peter, 'we' are not having that kind of conversation – Ryan is having it all by himself. I have already said that I posted the wrong link by mistake, intending to post just the video link, but that didn't stop him going off into a huge hissy fit about it, and carrying it on further down here.

            • ryan

              so you disavowed realstreet Jill? I must have missed that. Not having a hissy fit. I can understand why someone who laps up anti gay scare stories might be tempted to abandon even the pretence of serious debate. C.f. The time you accused Peter of having a blog that's going gay, as there are too many posters who disagree with you. Perhaps a quota system is the way forward?

              • http://www.peter-ould.net Peter Ould

                Children!

                Jill is right – we are not having that kind of conversation. I think we've established where we all stand.

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  • Sean Fear

    http://www.halsburyslawexchange.co.uk/opinion/blo

    This is a good piece. The writer, James Wilson, who edits the All England Law Reports, presents the arguments from a secular point of view.

    To my mind, the key passage is the penultimate one:-

    "“There are many aspects of prospective foster parents that ought to be properly investigated; their financial probity and security, lack of criminal convictions, empathy with children, reasons for wanting to become foster parents, involvement with children in whatever capacity, and so forth. Their religious and political views, unless extremist, should not be near the top of the list.”

  • Blair

    Yet another nugget linked to this case that I'd suggest is worth reading (thanks to Thinking Anglicans):

    http://www.equalityhumanrights.com/legal-and-poli

    in friendship, Blair

  • alathia

    Peter

    Thanks very much for this analysis – I have posted the link around the net for the benefit of others – and you have saved me having to trawl througn the whole things myself, which I really don't have the time to do at present.

    Regards:

    Alalthia

  • James McDonald

    As someone who grew up in a loving Christian home, in what is today still a close family, may I add to this discussion, by telling you that it was difficult to come to terms with the fact I was made for same sex unions, not opposite ones. When I eventually told my parents, my 'traditional' father was the one, who said you are the same son to us, as you were yesterday, and that you will be tomorrow. I hope potential foster parents understand that gay people don't have any more choice on their sexuality, than the rest of you do on yours. You simply take it for granted. My brother writes with his left hand, I write with my right hand. And so it is with sexuality. God, through Jesus Christ, tells us to Love our neighbour as we love ourselves. This is more difficult when you don't identify with your neighbour, but the principle remains.

    Jesus did not speak much of gay people, but he did speak of loving your neighbour.

    If you have a teenager who, as I did, is struggling to understand why his sexuality is not what he expected it to be; he or she, needs perhaps more love than another child. Not less. Telling that child that his sexuality is wrong is like telling my straight brother that he must write with his right hand. And it is a shame that this case on fostering does not better highlight how many good Christian parents, such as mine, do love their children, regardless of their sexuality, and regardless of those in the church who believe that people like me are immoral, by birth. God made me as I am. And I would like to be loved, as a neighbour, as much as neighbours who are born straight.

    • http://www.peter-ould.net Peter Ould

      Thanks for your contribution James.

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  • nowconcerned

    I think it depends on the council/social worker.  Some Christians with traditional moral views have been able to carry on fostering, but I know of at least two Christian couples who have been refused or had children taken away from them.  After giving the wrong answer to the question ‘what would you say if there were two men kissing on TV’ the social worker told one couple bluntly that he would personally ensure that they never worked with children in care again.  I think his words were ‘you will be blacklisted’.

    I’m not saying that the councils and gay rights groups do not have genuine concerns about the welfare of children, but it seems to me that the real tragedy of this is that the basic need of children to have a moral structure is getting lost in the details of exactly what that moral structure should be.  From my observations, children in care are given food and condoms and told to get on with it.  There needs to be some kind of compromise where the children are protected from overt homophobia, but the parents not forced to give overt approval to sexual acts that they do not believe to be good.  I’m aware it’s a compromise, but it seems to me better to accept that all families have problems, than not to give children a family at all.

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