There has been huge media interest regarding the Johns ruling by the High Court. There has also been some confusion over the nature and implications of the ruling.
We have produced the thoughts below to add further clarity to our original article here [6] and press release here [7].
Application to Foster
The Johns applied to Derby City Council in 2007 to foster a child but the Council withdrew their application because they objected to the fact that the Johns were not willing to promote homosexuality as positive to a young child who would temporarily be in their care if approved.
The application was later reinstated after the intervention of the Christian Legal Centre. Yet it was never finally approved, and continued to stall over the question of whether the Council’s equality policy allowed for foster carers with biblical views on sexual ethics.
Their application was still on hold whilst, in November 2010, both parties jointly approached the Court to clarify the issues at stake. Since the process had stalled, the Johns decided to proceed on this basis in order to move their fostering application forward.
Both parties were seeking Declaratory Relief - specific statements from the Court that would help to clarify the law in this area. The Judges did not give the relief sought. Amongst other reasons, they claimed that as the Council had not formally terminated the Johns application at the time of the hearing, there was therefore no decision to be reviewed. However, the reason the case came to Court before the application had finished being processed was because it had stalled. Both Derby City Council and the Johns were agreed on why it had stalled, namely the conflict between sexual orientation rights and the freedom to manifest Christian beliefs.
The Judgment
Since the Judges did not give the particular relief sought, some have seen this as a non-ruling, with minimal consequence. However, the Judges produced over 30 pages of legal analysis, considering the issue in abstract, and gave reasoning that is highly significant.
Both parties had sought to persuade the High Court to back their own respective views. The Judges fully backed the Council’s position in their legal reasoning. The Judges used the opportunity presented to them to make an extremely forceful case against the right to manifest Christian beliefs in the face of equalities legislation.
Although the Judges made no formal declaration, they did make it very clear that homosexual rights trump freedom of conscience in the context of fostering (in their own words “the equality provisions concerning sexual orientation should take precedence”); that if children are placed with parents who have biblical Christian views like the Johns, then “there may well be a conflict with the local authority’s duty to safeguard and promote the welfare of looked-after children”; they implied that Christian moral views may be harmful to children; stated clearly that Councils can require the promotion of homosexuality; and made it clear that Councils can stop Christians from fostering children on this basis.
Their analysis gives very strong guidance to Councils that they may, and implicitly should, disallow the fostering applications of Christians with biblical beliefs on sexual ethics where this contravenes with ‘equality’ policies. The analysis was made by two senior Judges and will be seen as highly influential and informative.
On the basis of the clear statements made by the Judges in the ruling, it is unclear how any Christians with orthodox views on sexual ethics could meet these criteria and successfully complete a fostering application process. We believe that local authorities will increasingly look for a willingness to promote homosexuality as a required criterion for fostering.
Previous Authorities
The Judges affirmed the reasoning given by the Court of Appeal in the case of “Ladele”. In that case, the Judges suggested that there was no religious discrimination against the claimant because her sexual ethics were not connected to her Christian beliefs.
We believe that this logic is profoundly erroneous. How can one separate a Christian’s moral beliefs on sexuality from their Christian faith? Christian morality is necessarily informed by the Christian faith. For the Judges to suggest otherwise undermines confidence in their reasoning and impartiality.
It is on this dubious basis that the Judges have claimed that their ruling must not be seen as a judgment against Christians fostering children per se. This has been taken by some at face value. However, it is hard to see how this claim holds any weight at all, as the Court agreed with the Council that the couple could be excluded from fostering under equality law because of their beliefs on sexual ethics.
Christian foster parents willing to promote homosexuality to small children in their care may have no problem completing the application process. Yet how many Christians would be willing to do this? Certainly the Bible provides no warrant for doing so.
Applying the legal reasoning in “Ladele” (which concerned a Civil Registrar) to a fostering case is a serious development. There are highly sensitive issues involved in the area of fostering and adoption, including the raising of children and the passing-on of Christians values.
The Future of Christian Fostering
The ruling does not mean that there is now a total blanket ban on all Christians from fostering children. We would encourage potential Christian foster parents to still make the attempt to do so, although we believe that it will become increasingly difficult to succeed.
Our Press Release stated: “The nature of the judgment means that Christians who hold orthodox Christian views on the family, marriage and sexuality will continue to face difficulties in the fostering and adoption process and the Courts will not intervene to stop this from happening”; and included within its title “Fostering by Christians now in doubt”. We stand by this analysis.
We have evidence of several other Christian couples who have been stopped from fostering for similar reasons to the Johns. We have been contacted by two couples with similar experiences to the Johns in the last 48 hours alone. This cannot be ignored.
We have also been contacted by a Christian woman who had successfully fostered a child in the past yet had had to agree with the local authority not to raise the child as a Christian. This is unacceptable.
The Johns
We stated in our Press Release that the ruling leaves the Johns “currently unable to foster a child”. This is accurate. They are currently unable to foster a child as they have no approved application under which to do so. They were denied the Declaratory Relief that they sought and which would have put their application back on track. Their fostering application is technically “on hold”, but without a change of position by Derby City Council it appears effectively finished.
Following the ruling there is almost no scope now for the Council to approve the Johns or other orthodox Christians as foster parents, not least because the judgment strongly implied that orthodox Christian ethical beliefs are potentially harmful to children:
“Article 9 [of the European Human Rights Act] only provides a ‘qualified’ right to manifest religious belief and ... this will be particularly so where a person in whose care a child is placed wishes to manifest a belief that is inimical to the interests of children”(Para 102).
The Johns application was not directly terminated by the Court. Instead, the Court loaded the gun and passed it back to the Council.
The Equalities and Human Rights Commission
The rhetoric of the Judges and the EHRC needed to be exposed. The EHRC’s use of the word “infect” when describing the passing of Christian moral views onto children is highly revealing. The EHRC is now backtracking and, incredibly, trying to claim that it was a drafting error in their submission to the Court. This is impossible to conceive given the context and clarity with which it was expressed in their submission. Yet the hostility of their agenda against Christians has been exposed for all to see.
Next Steps
We are taking the outcome of this case extremely seriously and encourage others to do the same. We think it highly unlikely that, in future cases, the High Court would ever rule in favour of Christians who may be turned down as foster parents on the basis of their sexual ethics, without a change in the law.
This scenario cannot remain unchallenged. Thankfully, the debate has now been brought onto the front pages of our newspapers. Others who have not been able to foster due to their Christian beliefs have remained hidden. It must be extremely hard for them to read responses from some quarters which suggest that this is a non-judgment that has been overblown. On the contrary, it is a very real, live issue. What is happening behind the scenes has been exposed.
We would now like to see Parliament intervene, and we will be considering the next steps.