The Charity Commissioners
By e mail and by Post
Re: Catholic Care, Diocese of Leeds (“Catholic Care”)
Registered Charity number 513063
We write to you as practising Catholics who are extremely concerned at recent developments relating to the application by Catholic Care to change its charitable objects in order to take advantage of Regulation 18 of the Sexual Orientation Regulations (the “SORs”) to gain exemption from the obligation to accept same sex couples as potential adopters in relation their adoption services work.
As is well known, Catholic Care has applied to change its objects clause so as to read as follows:
“3.1 Subject to the restriction in Paragraph 3.2 below, the Charity Objects (the Objects) are:
3.1.1 The advancement of the Christian religion in accordance with the tenets of the Roman Catholic Church (the Church);
3.1.6 The advancement and promotion of the support, relief and care of:
18.104.22.168 Children and young people without families to care for them, including, but not limited to, adoption and fostering services;
3.2 The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals will only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church.
3.3 For the avoidance of doubt the restriction at Paragraph 3.2 above shall apply only to adoption services and shall not apply to any other services that the Charity may provide.”
We also understand from our reading of the judgment of the High Court (Mr Justice Briggs) ref.  EWHC 520 (Ch) (the “Briggs Judgment”) that the Charity Commissioners may be required to consider again the application by Catholic Care to change its objects.
The Briggs Judgment
In very brief terms, we seek to summarise the outcome of the Briggs Judgment as follows:
If the Bishop of Leeds insists that Catholic Care will be closed down unless it be permitted to change its charitable objects so as to become expressly an adoption agency for heterosexuals only, then in weighing the balance between permitting a pocket of sexual orientation discrimination against the loss of an otherwise valuable service provided in terms of the placement of hard to place children, then it is open to the Charity Commission to find – in that specific case - the benefits of the charity operating in its discriminatory matter outweigh the disbenefits of its not operating at all.
Consequently, we understand that the Charity Commissioners may be required to weigh up the benefits of keeping the adoption services provided by Catholic Care open against the disbenefits of the discriminatory manner in which Catholic Care wish to provide these services.
In making your decision, we respectfully request that you take into account the following representations:
Absence of other options: In the evidence put before the High Court, Catholic Care have placed emphasis on the lack of availability of other options in order to keep the “agency of last resort” service alive. We question whether an exhaustive of review of other options has really been carried out with a view to finding a solution to maintain the services of the agency whilst complying with the new legislation. In this context, we would draw your attention to the fact that out of the fourteen Catholic Adoption Agencies which were active at the time of the enactment of the SORs, eleven have found a way of continuing their adoption services whilst complying with the requirements of the SORs, with various solutions involving some formal severance from the Catholic dioceses which officially supported them but without losing their Catholic identity. These agencies continue to be supported by Catholics (including bishops) showing that intransigent opposition to adoption by same sex couples is not an essential element to a Catholic ethos.
We therefore suggest that Catholic Care should be required
to provide detailed evidence of the attempts they have made to find a lawful
solution to this problem, with solid reasons for the failure of these
We note for example, that in
the hearing of the appeal of Catholic Care before the Charity Tribunal on
The intransigence attributed to the Roman Catholic Bishop of Leeds
The Briggs Judgment makes it clear (at paragraphs 4 and 106) that, the matter which prevents Catholic Care from complying with the laws against discrimination is the views of the Bishop of Leeds and its need to remain formally affiliated to the diocese of Leeds. The tenets of the Roman Catholic Church may underlie the Bishop’s views, but the reason for seeking the amendment to the objects of the charity is the fact that the Bishop will require the charity’s adoption work to be closed down if the amendment is not made rather than that the charity wishes to protect or promote those views.
If the Roman Catholic Bishop of Leeds decided that he did not wish the charity to place children with couples of mixed race, for example, would this argument be a reason for the charity to adopt a policy of discriminating on grounds of race? If the Bishop imposed some totally capricious policy would this be a reason for changing the charity’s objects? The logical position is that the problem is not the charity’s objects, but the trustee. The obvious solution is to replace the trustee (the effective solution found by agencies such as Lancaster Caritas Care and the Cabrini Children’s Society, both of which, we understand, have retained their formal affiliations with their respective dioceses without maintaining the bishop or his representative in a key trustee role). The stark choice between discrimination or closure is created by Catholic Care’s own choice (through the views of its key trustee, the Bishop).
The position of local authorities
As was mentioned in the Briggs Judgment, the children who are actually placed for adoption are in local authority care, Catholic Care (like all adoption agencies) recruits and assesses potential adopters, but the child is actually adopted by order of the court. Consequently, Catholic Care can only function if it works with local authorities. Local authorities are public bodies who are not permitted to work with organisations which practise discriminatory policies. We therefore wonder whether Catholic Care has provided solid evidence to show that the local authorities with which it works will continue to work with it once the amendment to its charitable objects has been implemented. There can be no benefit in changing Catholic Care’s objects if its adoption work ceases because local authorities can no longer work with it.
The effect of the proposed amendments on lesbian, gay and bisexual children
The legal proceedings in relation to Catholic Care have led to publication of the proposed drafting of the revised objects. We note that the proposed new objects will state that the Catholic Care must provide adoption services “to heterosexuals”.
We noted in the legal proceedings leading up to and culminating in the Briggs Judgment that one of the issues under discussion was whether an agency such as Catholic Care in fact confers any benefit upon any person other than the child who is to be placed for adoption (following principles well established in adoption law). Although the Charity Tribunal held that an adoption agency does confer some benefits on potential adopters (at paragraph 53 of its ruling on the preliminary question), the Briggs Judgment did state at paragraph 12 that “the intended beneficiaries of Catholic Care’s adoption service, pursuant both to its existing objects and Proposed Objects, were children in need of adoption rather than prospective adoptive parents”, an object which can only make sense if it is accepted that Catholic Care is conferring benefits upon children through its adoption services.
We consider that the implications of an adoption agency attempting to ascertain the sexual orientation of a child and withdrawing its adoption services if that child proves to have a minority sexual orientation are extremely serious. Older children are a specifically identified category of child who is “hard to place” and there must therefore be a real risk that Catholic Care, with its amended objects, may deal with situations where a child to be placed for adoption has come out as lesbian, gay or bisexual (either before or after the adoption has taken place, when after care services are provided). Whether the wording was intended to have this effect is unclear the implications of it have not been discussed in the judicial proceedings so far but are clearly relevant.
Even if it is not the intention of Catholic Care to seek to ascertain the sexual orientation of the children who are assessed for adoption, there must be a serious concern as to whether an agency which practises discriminatory policies in seeking adoptive parents can adequately serve lesbian, gay and bisexual children.
“ Legitimate and proportionate” discrimination
We note from the Briggs Judgment that Catholic Care considers that its proposed discriminatory objects will be “legitimate and proportionate” on the basis that other agencies will assess lesbian, gay and bisexual adopters and that such adopters will be referred to another agency if they should approach Catholic Care. Catholic Care does not, it appears, oppose adoption by LGB adopters but simply wishes to take no part in it.
There are a number of reasons for rejecting this argument. First, it depends upon other agencies being available to do the work and not discriminating, a matter over which Catholic Care has no control. It is not impossible that other agencies in the area may come under the control of trustees who wish to adopt similar discriminatory principles, and may apply to change their objects in order to do so. If this argument were legitimate, there would be no need for any anti discrimination legislation because it is probably true in most circumstances that someone is prepared to provide the relevant service somewhere without discriminating. Anti discrimination law is there to seek to redress the injustice which results from the fact that certain groups are more likely to be excluded than others from the provision of services, the opportunities for employment or other areas in which discrimination has been perceived to occur. The fact that X probably does not discriminate does not make it legitimate for Y to discriminate.
Secondly, the implication of this argument is that Catholic Care does not adhere to a view that LGB adopters are bad adopters for children: it does not seek to prevent such adoption from happening, and is, in fact, prepared to facilitate it by referring LGB adopters to other agencies. Its reason for seeking to discriminate is apparently either a need to maintain some sort of ideological purity or an inability, as an organisation under the control of the Roman Catholic Bishop of Leeds, to engage with the fact that LGB couples and LGB single people do come forward to adopt children and may well do so successfully. Either way, Catholic Care is putting its own interests as an institution ahead of the interests of the children it exists to place. This is fundamentally unacceptable in an adoption agency, which should, as a general principle of adoption law, put the interests of the child above everything else.
We therefore respectfully urge the Commissioners to take into account the points made in this letter in considering the application by Catholic Care to amend its objects and take into account the clear public disbenefits in permitting an adoption agency to discriminate in this way.
This letter has been drafted and reviewed by a number of practising Roman Catholics and other practising Christians. The views set out in this letter are encountered amongst practising Catholics just as they are in other sections of the population.