Matthew Smith & Anor v Manchester City Council

An appellate court reviewing proportionality must choose between review and fresh determination according to context. A review approach is ordinarily appropriate for a one-off, fact-sensitive decision applying established law, especially where the first-instance judge heard the relevant evidence. A fresh assessment may be justified by special factors such as a new legal regime, a matter of general principle or an issue of major social importance.

In fostering cases, the welfare of children is paramount. Strong religious beliefs are not generally incompatible with fostering, but a local authority may consider how prospective carers would manifest those beliefs to a child whose identity or choices conflict with them. The Equality Act 2010 and Convention analysis may be co-extensive where adverse treatment responds objectively to the manner of manifestation.

The claimants, evangelical Christians wishing to foster children, challenged Manchester City Council’s refusal to progress their fostering application. The Council relied on the claimants’ busy household, home-schooling arrangements and concerns that their views on homosexuality, gender identity and abortion would make it difficult for them actively to promote diversity and support a foster child’s identity.

The Manchester County Court dismissed claims under the Human Rights Act 1998 and Equality Act 2010. On appeal, the central issues were whether the interference with the claimants’ Article 9 rights was proportionate, what appellate approach should be taken to that assessment, and whether the refusal amounted to direct discrimination because of religion or belief.

1. Appeal dismissed. The county court judge’s conclusion that the Council’s decision was justified under Article 9(2) and did not constitute direct discrimination was upheld.
2. Article 10 added nothing to the claim. The case concerned the manifestation of religious beliefs, rather than freedom of thought. The Council’s decision interfered with that manifestation because it took account of the claimants’ views and the likely impact of expressing them to foster children.
3. The proportionality inquiry under Bank Mellat v HM Treasury (No 2) required consideration of the importance of the objective, rational connection, less intrusive measures and fair balance. The focus was properly on the Council’s application of the fostering framework, although the judge’s finding that a risk-assessment alternative would not work in practice was an independent justification.
4. Following Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs, the appellate approach is context-sensitive. This was a one-off, fact-sensitive decision under established law. A review approach was therefore appropriate. The judge had directed himself correctly and reached a conclusion reasonably open to him.
5. The court stressed that evangelical Christian beliefs are not generally incompatible with fostering. The decision depended on the particular evidence, including the claimants’ stated intention to tell a foster child that homosexuality was sinful and a choice. Child welfare was paramount, and due respect was owed to social workers’ expertise. Section 33(6) of the Children Act 1989 could require continuity with a child’s existing religious upbringing, but agencies remained required to consider the effect of particular beliefs on welfare.
6. Ngole v Sheffield University was distinguishable. It concerned an unsupported assumption that expression of religious views would lead to discrimination. Here, the claimants had explained how they would respond to a foster child questioning sexual identity or abortion, creating a legitimate concern about the child’s positive self-view and identity.
7. For Equality Act purposes, adverse treatment responding to an objectively justifiable manner of manifesting a belief was not because of that manifestation. The Article 9 and direct-discrimination analyses were therefore co-extensive. Permission was granted to amend the pleaded remedy by replacing section 124 with section 119 and deleting the claim for a recommendation.

• High Court (King’s Bench Division) — appeal from the judgment of HHJ Sephton KC in the Central Manchester County Court dated 12 August 2024. Appeal dismissed.