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

A fostering authority may consider prospective carers’ views on sexuality where those views may affect their treatment of children, parents or other persons involved in fostering. The inquiry concerns the behavioural consequences of beliefs, not the validity of the beliefs themselves. Religious belief is protected, but its manifestation is subject to proportionate restrictions, particularly where a person voluntarily seeks a role involving children and equality duties. The authority must safeguard and promote children’s welfare, rather than treat welfare as the paramount consideration applicable to a court. Requirements to respect diversity and promote equality may justify action which incidentally disadvantages persons holding particular religious beliefs. The legality of any eventual decision remains fact-sensitive.

The claimants, practising Pentecostal Christians, sought approval from Derby City Council as short-term respite foster carers. They held traditional religious views about sexual relationships and expressed opposition to homosexuality. The fostering assessment raised concerns about whether those views would affect their ability to support children, including children questioning their sexuality, children with gay parents, and children exposed to homophobic bullying.

The fostering panel deferred consideration of the application and no substantive approval decision was made. The claimants sought declarations concerning religious discrimination, the relevance of views on sexuality, and the application of the fostering standards. The court considered whether declaratory relief and permission for judicial review should be granted.

1. Jurisdiction and outcome. The court declined to grant declaratory relief and refused permission to apply for judicial review. The proposed questions were insufficiently focused, the facts were incomplete, no substantive decision had been made, and the legality of any decision would be highly fact-sensitive. The court made no order.
2. Relevance of attitudes to sexuality. A fostering authority may examine prospective carers’ views on sexuality where those views may affect their behaviour and treatment of a foster child. This is not an inquiry into the truth or validity of religious belief. It concerns whether the applicant can value diversity, promote equality, and support children without judgment. The authority was entitled to consider the possible effect of the claimants’ expressed views on children, parents and the wider fostering context.
3. Welfare and fostering standards. The local authority’s duty under section 22(3)(a) of the Children Act 1989 is to safeguard and promote the welfare of looked-after children. The statutory “paramount consideration” formulation in section 1 applies when a court determines a question concerning a child, not to the local authority’s general fostering functions. The National Minimum Standards and statutory guidance required attention to diversity, equality, sexuality and non-judgmental support.
4. Religious and sexual-orientation discrimination. If the treatment of an application is because of expressed antipathy or disapproval of homosexuality, rather than because of religious belief, it is not direct discrimination on grounds of religion. Any requirement to comply with equality standards might amount to indirect discrimination, but compliance with sexual-orientation equality duties, the provision of a non-discriminatory service, and protection of children’s welfare would constitute a legitimate aim and could justify the requirement.
5. Article 9 and Wednesbury review. Article 9 protects religious belief and manifestation, but manifestation is qualified and may be restricted where necessary to protect the rights and freedoms of others. There is no right to foster, and applicants voluntarily subject themselves to the applicable fostering standards. In light of the standards and material indicating possible risks to children cared for by antipathetic carers, consideration of attitudes to homosexuality was not Wednesbury unreasonable.
6. The decisions in Islington London Borough Council v Ladele and McFarlane v Relate Avon Ltd were binding and correctly stated the applicable principles concerning religious manifestation, discrimination and proportionality.

First-instance judicial review claim. No substantive fostering decision had been made. The court refused permission and made no order.