Family Law Newsletter #5327.10.21
Issue #53 of Spire Barristers' Family Law Newsletter: edited by Chloe Lee and Philippa Pudney; news and Case Reviews by Francesca Massarella. Francesca began pupillage at Spire Barristers in September 2021.
Articles from around the web, Legislation updates and Case Updates from Care Proceedings and Financial Remedy matters. Subscribe to receive Family Law Newsletter notifications or email us to give us any feedback.
‘Totally inadequate’ post-placement support for special guardian identified in review of child’s murderRead More
Guidance / Updates
President’s Memorandum: Experts in the Family Court
Statutory guidance underpinning the new duties on local authorities relating to the provision of accommodation-based support to domestic abuse victims and their children.
R (On the application of Cornerstone (North East) Adoption and Fostering Services Ltd v Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (Ofsted)  EWCA Civ 1390
In the Court of Appeal: Mr Justice Julian Knowles, Lady Justice Asplin and Lady Justice Nicola Davies
The Appellant (Cornerstone) is an independent fostering agency (IFA). It recruits and supports carers for children in local authority care who need to be fostered or adopted. The Respondent (Ofsted) is the statutory body whose functions include, but are not limited to, registration, regulation and inspection of IFAs.
The issue in the case is whether it is lawful for Cornerstone to only accept heterosexual evangelical Christians as potential carers. Ofsted considered that it was not lawful, asserting that it did not comply with the requirements Equality Act 2010 and Human Rights Act 1998. Ofsted required Cornerstone not to discriminate in its recruitment of foster carers in either.
Cornerstone issued judicial review proceedings in July 2019 seeking;
- a declaration that Ofsted’s findings were unfounded;
- an order quashing the requirement in the draft report; and
Cornerstone were given permission to appeal on five of their twelve grounds.
The five grounds which were appealed were the following:
Ground 1: Ofsted properly had – and in all the circumstances properly exercised its – power and jurisdiction to require Cornerstone to disapply or modify its recruitment policy for foster carers as contained in its charitable instrument, notwithstanding the finding by the Charity Commission – exercising the specific mandate afforded to it by Parliament under Section 193 EA 2010 – that when acting in pursuance of this charitable instrument, Cornerstone did not contravene the EA 2010.
Ground 3: Cornerstone’s recruitment, selection and appointment of Cornerstone foster carers in accordance with its policy constituted direct discrimination because of sexual orientation, within the meaning of s. 13(1) EA 2010.
Ground 4: Cornerstone’s recruitment, selection and appointment of Cornerstone foster carers in accordance with its policy is not a proportionate means of achieving a legitimate aim and is therefore unlawful indirect discrimination, within the meaning of s. 19(2)(d) EA 2010, on grounds of sexual orientation.
Ground 9: When it recruits, selects and appoints Cornerstone foster carers in accordance with its policy, Cornerstone acts incompatibly with the Convention right under Art. 14 (read with Art. 8) of hypothetical gay or lesbian evangelical Christians who might wish to become Cornerstone foster carer
Ground 10: Ofsted’s requirement that Cornerstone disapply or modify its recruitment policy for foster carers as contained in its charitable instrument was compatible with respect for the Convention rights under Arts. 9-11 and/or 14 which Cornerstone could pray in aid as a religious organisation
In relation to Ground 1, it was rejected, upholding the Judge’s conclusion that Ofsted was entitled to have regard to the EA 2010 and HRA 1998 when carrying out its inspection .
Ground 3 was also rejected. The judge at first instance was correct to reject the false distinction between sexual behaviour (banned) and sexual orientation (omitted to be mentioned). There is no potential for a religious organisation under schedule 23, paragraph 2 EA 2010 because of the public nature of Cornerstone’s provision of services.
Whilst Cornerstone did not specifically appeal the Judge’s proportionality finding under section 193 (2)(a) EA 2010. The section 193 exception allows charities to restrict the provision of benefits to persons who share a protected characteristic where that is a proportionate means of achieving a legitimate aim. However, this challenges the Judge’s proportionality finding in relation to section 19 and indirect discrimination. As such, the issue of section 139 remains open .
It was held that the Judge was right to find that this is a case of direct discrimination, disposes Ground 3 unless Cornerstone succeeded on the proportionality exception under s193 EA 2010 .
Similarly, Ground 4, which concerned Cornerstone seeking to show that their policy is a proportionate means of achieving a legitimate aimarguing that its requirement that carers do not engage in homosexual behaviour does not discriminate on grounds of sexual orientation, was rejected. Otherwise, it does not dispute that the first three conditions in s. 19(2) are satisfied, but it seeks to show that its policy is a proportionate means of achieving a legitimate aim under s. 19(2)(d) .
Ground 9 was also rejected, in agreement with the trial judge it was held that the process of regulation is different from the bringing of a claim of discrimination. A regulator is entitled to identify a breach in the law where it finds it .
Following this, Ground 10 was also rejected. The Judge gave the following reasons for his rejection:
- Under section 6 HRA 1998 because Ofsted is a “hybrid” public authority, it is unlawful for it to act in a way which is incompatible with a Convention right 
- The trial judge was wrong to conclude that Cornerstone’s policy did not amount to a manifestation of religion as Cornerstone’s foster carer recruitment policy does fall within the protection of Article 9 of the Convention .
- Ofsted’s requirements materially interfered with Cornerstone’s right to manifest its beliefs .
The Court considered proportionality to be the decisive question in the case. The Judge starting point was that particularly weighty reasons are required to justify differential treatment on the grounds of sexual orientation and that the burden of showing this lay on Cornerstone . Cornerstone pleaded its legitimate aims as being a right to religious freedom (Article 9), right to freedom of association (Article 11) and the “principles of subsidiarity, pluralism and diversity” stating:
‘And increasing the pool of evangelical Christian foster carers; affording critical support to carers; allowing those with the evangelical Christian community to serve by promoting stable and durable placements; and manifesting the beliefs of evangelical Christianity in practice of Christian charity and the support of Christian family life, to the benefit of the carers, the children cared for, Cornerstone and society as a whole’ .
The trial judge approached the question of proportionality under the EA 2010 by means of a four stage test set out in Bank Mellat v HM Treasury (No 2)  AC 700:
a) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
b) whether the measure is rationally connected to the objective;
c) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
d) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, the former outweighs the latter .
The appellate judge noted that this was an appeal which saw a collision between two protected characteristics, championed by two parties whose arguments passed each other by. On the one hand, Ofsted is a national regulatory authority that seeks to uphold equality law by reference to general principles. On the other, Cornerstone is a small religious charity that seeks to justify difference in treatment by reference to its own experience. The judge noted the difficulty of the court’s task in balancing the two interests. Despite that, the judge considered that the principles underpinning the assessment of proportionality are clear enough . It is of significance that Parliament has, in relation to religious organisations that offer a service to the public, given a clear indication that discrimination on the basis of sexual orientation is impermissible .
The court held that the real issue arose at stage four of the Bank Mellat proportionality test. The court concluded that in order to justify its policy, Cornerstone needed to provide credible evidence that there would be a seriously detrimental impact on carers and children. It did not do this, and its case failed on the facts .
A distinctive factor of the case was as such: that the policy in question has been explicitly held not to be unlawful as discrimination based on religious belief. However, the same was not said for sexual orientation .
The appeal was dismissed [147-149].
SW v United Kingdom ECHR (Application no. 87/18)
The European Court of Human Rights, sitting as a Chamber composed of: Yonko Grozev, President, Tim Eicke, Faris Vehabović, Iulia Antoanella Motoc, Armen Harutyunyan, Gabriele Kucsko-Stadlmayer and Ana Maria Guerra Martins
This application involved complaints that accusations of professional misconduct made by a Family Court judge involved in a fact-finding hearing breached a social worker’s right under Articles 6 and 8 of the ECHR. Furthermore, the applicant social worker complained that pursuant to section 9(3) of the Human Rights Act 1998 she was unable to claim damages for a judicial act done in good faith
By way of background, the Applicant was a social worker and between 2007 and 2014 her services were engaged through personnel agencies. In 2012 she began working with a local authority. The same year, she was called as a professional witness in childcare proceedings concerning the alleged sexual abuse of a number of siblings (“the childcare proceedings”). Before the proceedings ended, her personnel agency assigned her to a different local authority.
The finding of fact hearing commenced on 9 September 2014 and the Social Worker was called as a professional witness. In a judgment of 17 October 2014 Family Court judge rejected allegations of sexual abuse, criticising local authority and professional involved in the case . The judge found that the Applicant was the principal instigator in a joint enterprise to obtain evidence to prove the sexual abuse allegations, irrespective of underlying truth and professional guidelines; that she had lied to the court about important aspects of the investigation whilst subjected one of the children involved to a high level of emotional abuse . The Applicant was first made aware of these adverse findings two days prior to the final judgment and her decision to not grant her anonymity was maintained [9-10]. The judge directed that these findings should be shared with the local authority the applicant had been working for, and the relevant professional bodies . As a result the Applicant’s local authority assignment was terminated without notice [12-13].
The Applicant successfully appealed that the judgment and dissemination to the local authority/professional regulator had violated her Article 8 rights.
The Court of Appeal accepted these serious allegations and held that the process followed was ‘manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Article 8 and/or common law’ . The same was held for Article 6 . As a result, the Court of Appeal set aside the judgment, holding that adverse findings no longer stood, nor had any validity for any purposes .
Following this, while the Applicant’s fitness to practice was unimpaired, she was unable to return to work due to illness because of a “great deal of stress” . Coupled with this, a psychiatrist noted that the Family Court judge’s findings had been a “highly traumatic experience” for her which triggered post-traumatic stress disorder, anxiety and depression . Notwithstanding the loss of employment and adverse effects both on her physical and mental health , the Applicant was unable to obtain compensation owing to section 9 (3) of the Human Rights Act, which acts as a statutory bar to the award of damages in respect of a judicial act.
The Applicant raised the case before the European Court of Human Rights, seeking compensation under Article 13, in breach of her Article 8 rights.
There were two questions for the court:
(1) Whether dissemination of adverse findings interfered with the Applicant’s Article 8 rights?
(2) Whether the Applicant’s Article 13 rights were interfered with?
Addressing the first, The European Court of Human Rights in Strasbourg upheld the decision of the Court of Appeal that dissemination of the adverse findings breached the Applicant’s Article 8 rights. It outlined that: ‘A person’s right to protection of his or her reputation is encompassed by Article 8 as part of the right to respect for private life, since a person’s reputation is part of his or her personal identity and psychological integrity .’ For Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life . The attack which obstructs his or her ability to pursue a chosen professional activity may therefore have consequential effects on the enjoyment of the right to respect for his or her “private life” within the meaning of Article 8 . The Court concluded that the interference with the applicant’s right to respect for her private life reached a sufficient level of seriousness and caused sufficient prejudice to her enjoyment of that right for Article 8 to come into play.
Moving onto the second question, the Applicant argued that she was, and remained, a victim of the breach of her rights under Article 8, as the findings being set aside did not compensate for the loss/damage following disclosure to the local authority and professional regulator. The Court accepted this, noting that it falls to the national authorities to redress any violation of the Convention and the Applicant maintained the victim status at all stages of the proceedings under Article 34 .
Strasbourg went on to acknowledge that the Applicant did not have access to an effective remedy at the domestic level capable of addressing her Article 8 complaint – namely compensation, owing to the effect of section 9 (3) of the Human Rights Act, there was no right to claim to claim damages in respect of a judicial act done in good faith .
Strasbourg awarded damages to the applicant whose Article 8 and 13 rights were held to be breached by the family court judge’s directions to disseminate his adverse findings as to her professional conduct to her employer and professional regulator. The Applicant was awarded EUR 24,000 for non-pecuniary damages, which was substantially less than the sum claimed (GBP 40,000) . The reason for this is that as Strasbourg held that it was for the domestic courts to establish a causative link between the pecuniary losses claimed and violations found . She was also awarded EUR 60,000 for costs and expenses.
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