There was an interesting case in the news a couple of weeks ago which concerned a couple’s rights to be allowed to foster children. The case of R (Johns and another) v Derby City Council (Equality and Human Rights Commission intervening) was reported amid much publicity and raises some interesting issues about balancing very sensitive matters, in particular in relation to religious beliefs and values.
The circumstances giving rise to the application were that the claimants are members of the Pentacostal Church. As such, they believe that sexual relations other than between a man and woman within a marriage are morally wrong. This element of their religious beliefs is what appears to have caused difficulties with their fostering application.
Although the couple had previously fostered children between 1992 and 1995, their application to Derby City Council in January 2007 to become short term foster carers is what has caused the controversy. As part of the application process, the couple were assessed by an independent social worker. The independent social worker put a number of hypothetical situations to the couple and their responses, as driven by their religious beliefs, raised concerns about whether they could value diversity – particularly in relation to sexual orientation in line with the National Minimum Standards for Fostering Services. Although the social worker reflected that they were kind and hospitable people who were well meaning and caring, she retained reservations about their potential to meet the expectations of the Local Authority. The Fostering Panel met to consider the application but deferred their decision.
The claimants brought an application to the administrative court for leave to apply for judicial review. The Human Rights Commission intervened in the proceedings. The question for the Court was how the Local Authority as a fostering agency could balance the obligations owed under the Equality Act 2006,the Human Rights Act 1998 and the National Minimum Standards of Fostering Services when deciding whether to approve foster carers. The Local Authority also asked whether they were to treat the welfare of the looked after children as their paramount concern within the balancing exercise.
The Court ruled that the Local Authority were entitled to explore the extent to which a prospective foster carers’ beliefs might affect their behaviour, their treatment of a child being fostered by them. The Court further concluded that if the Local Authority did not have regard to such matters it may have found itself in breach of both its own guidance and the National Minimum Standards. The importance of the duty of the Local Authority to safeguard and promote the welfare of children was stressed by the Court. The claimants were therefore not granted permission to apply for a judicial review.
In essence the case appears to turn not on the religious beliefs of the claimants but on the impact those religious beliefs would have on their behaviour. The Local Authority were at pains to point out that it was not the case that religious beliefs would exclude a prospective foster carer, the issue is whether they are able to value diversity.
This has been a case with complex and sensitive issues and at a time when there is a need for more foster carers, it is perhaps inevitable that the reports have polarised opinion and doubtless the debate will continue. If you need legal advice on foster care or any family matter, please do not hesitate to contact us.