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.
Update – Cranmer presents an articulate defence of the Johns.