Cornerstone (North East) Adoption And Fostering Service Ltd (t/a Cornerstone), R (On the Application Of) v The Office for Education, Children's Services And Skills

Permission to appeal should be granted where the proposed grounds raise issues of sufficient general importance or there is another compelling reason for an appeal to be heard, even though the first-instance judge is not persuaded that the judgment is arguably wrong. Permission may be refused on grounds lacking a realistic prospect of success or sufficient compelling reason. The general rule is that a stay is not granted. The applicant must show irremediable harm; temporary inconvenience is insufficient. Serious discriminatory conduct should not remain unremedied pending appeal where the position can be revised if the appeal succeeds.

The claimant sought permission to appeal against the court’s judgment dated 7 July 2020, which had found that its recruitment policy discriminated directly and indirectly against gay men and lesbians, that the discrimination was not proportionate to achieving a legitimate aim, and that the conclusion did not breach Convention rights. It also sought a stay under CPR r 52.16(a), asserting that refusal would cause irremediable consequences.

The defendant opposed both applications. The issues were whether permission should be granted on any of the proposed grounds and whether the order should be stayed pending any appeal.

1. Permission to appeal. The court granted permission under CPR r 52.6(1)(b) on the grounds concerning whether the recruitment policy discriminated directly or indirectly against gay men and lesbians, whether the treatment was proportionate to achieving a legitimate aim, and whether the conclusion breached Convention rights. These issues were sufficiently important generally to warrant consideration by the Court of Appeal. The judge was not persuaded that the judgment was necessarily arguably wrong, but there was another compelling reason for an appeal to be heard.
2. Permission was refused on all other grounds. The fact that virtually every aspect of the judgment was challenged did not establish a sufficient basis for permission in relation to those grounds.
3. Stay. The application for a stay was refused. The general rule is that a stay will not be granted, and the applicant must establish irremediable harm. Temporary inconvenience is insufficient. The claimant had been found to operate a discriminatory recruitment policy, which was a serious matter that should not remain unremedied.
4. The practical consequences did not justify a stay. The claimant could revise its Code of Practice to make clear that married same-sex couples would be accepted as foster carers. If the appeal succeeded, the current version could be reinstated.
5. No order was made as to the costs of the permission application.

The application was made against the judgment dated 7 July 2020. The High Court granted permission to appeal on specified grounds under CPR r 52.6(1)(b), refused permission on the remaining grounds, and refused a stay pending appeal.