Johns & Anor, R (on the application of) v Derby City Council & Anor

The court considered a rolled-up challenge to the way Derby City Council had approached the application of the claimants to be approved as short-term (respite) foster carers. Key legal principles established or applied were: the local authority is entitled to explore and take account of prospective foster carers' attitudes to sexuality where those attitudes may affect their behaviour as carers; Article 9 ECHR protects freedom of religion but the manifestation of religious belief is qualified and may be limited where necessary and proportionate; and the Court of Appeal authorities in Islington London Borough Council v Ladele and McFarlane v Relate Avon Ltd support a public authority requiring staff or carers to meet non-discriminatory service standards even where this conflicts with the claimant's manifestation of belief.

The court declined to grant permission for judicial review or to make any declaratory relief because no final decision had been taken by the authority, the case was highly fact-sensitive, the parties had not put forward an appropriately focused legal question, and there was insufficient evidence for the court to answer the broad abstract questions posed. The court therefore made no order.

This is a first-instance Administrative Court hearing of a rolled-up claim in which the claimants (Mr and Mrs Johns), practising Pentecostalist Christians, sought declaratory relief in relation to Derby City Council's handling of their 2007 application to be approved as short-term foster carers.

The factual background was that the claimants had been assessed following interviews and reports (including by independent social workers Jenny Shaw and Lynda Williams). Their expressed views that homosexual sexual relations were contrary to their religious convictions and certain responses to hypothetical scenarios concerning gay young people and gay parents led social workers to express concerns about whether they could meet the National Minimum Standards for Fostering Services (in particular Standard 7, 'Valuing diversity'). The defendant's Fostering Panel deferred a decision on 10 March 2009, and the claimants thereafter sought judicial review challenging the defendant's approach.

The claimants sought four broad declarations, including that persons holding traditional sexual-ethical beliefs should not be considered unsuitable to foster solely for that reason, that it is unlawful to ask prospective foster carers their views on homosexuality absent a specific child need, and that it is unlawful for a public authority to describe such adherents as 'homophobic'. The defendant sought a declaration that it may lawfully decline approval of a prospective carer who evinces antipathy to homosexuality and cannot demonstrate respect and positive attitudes toward it. The Equality and Human Rights Commission intervened and filed evidence on the impact on children of carers' attitudes to sexual orientation.

The court framed the principal issues as (1) whether attitudes of prospective foster carers to sexuality are a relevant consideration in an approval decision, (2) whether the defendant's approach amounted to unlawful religious discrimination, and (3) whether the defendant's approach was irrational (Wednesbury). The court analysed the statutory and regulatory context (Fostering Services Regulations 2002, Schedule 3, National Minimum Standards, the Children Act 1989 duties to safeguard and promote welfare, the Equality Act 2010 framework and the ECHR Article 9 principles).

Applying binding authorities (notably Ladele and McFarlane), the court held that a local authority is entitled, and in some circumstances obliged, to explore prospective foster carers' views about sexuality because those views may affect the welfare of looked-after children and conflict with statutory standards requiring carers to value diversity and support children regardless of sexual orientation. The court concluded that where the authority's concern is the prospective carer's conduct or likely conduct (not their belief as such), treatment directed at that conduct is not unlawful religious discrimination; indirect discriminatory effects may be justified as proportionate to legitimate aims of safeguarding and non-discriminatory provision. The court rejected the Wednesbury attack in those circumstances.

Because the panel had not reached a decision, the factual landscape was incomplete, the parties had not agreed a sufficiently focused question of law, and there was insufficient evidence to answer the broad abstract questions posed, the court refused permission to apply for judicial review and made no order. The judgment reiterates the settled principle that Article 9 protects belief but only gives qualified protection to manifestations of belief where restrictions can be justified in a democratic society.

This was a first-instance judicial review application. The court refused permission to apply for judicial review and made no order. The court held that: (a) prospective foster carers' attitudes to sexuality are a relevant consideration because they may affect behaviour as carers and the welfare of looked-after children; (b) Article 9 protects religious belief but its manifestation is qualified and may lawfully be limited where proportionate to legitimate aims; (c) the Court of Appeal authorities in Ladele and McFarlane support a public authority requiring compliance with non-discriminatory service standards notwithstanding the claimant's manifest religious objections; and (d) the present proceedings were inappropriate for abstract declaratory relief in the absence of a final decision and adequate evidence.