“My opinion overall is that Matthew is ultra keen for himself and his wife to become foster carers and” presciently “he is not going to go away without a fight? I feel that he (and his wife) might have some potential - e.g., experienced/committed; child focused/family orientated, good advocacy/negotiation skills; etc., but I just think that now might not [be] the right time; given the ages of his children; and I also feel that the "Home Schooling" could prove to be problematic/incompatible with foster children; etc???”
“Overall I found the applicants very keen to foster, they have considered all aspects of fostering and the practicalities involved. The couple have an eight seater car to use for the fostering role. There are no concerns in regards to home conditions. Michelle shared she also completed a 100 day placement on a social work degree which gives her additional knowledge. Michelle explained this was with Manchester City Project a homeless project. Michelle did not complete the degree as she stated there was 'no pressure to be at work and her own family came first'. Matthew's job allows him the flexibility to support Michelle with transporting children to and from school. However, the age range of their birth children is a concern and the compatibility of their birth children living alongside a looked after child who attends mainstream school. Following the visit I exerted my professional curiosity before feeding back to my team manager in regards to the ACE curriculum. I found this was the Accelerated Christian Education Curriculum, I then presented all of this information to my team manager Joy Dunbavin in order for her to make an informed decision of the next stage.”
“We discussed his beliefs. He stated that he was a Christian, and as such he did believe in Creationism. He didn't ‘necessarily’ agree with termination, and he didn't agree with ‘a certain way of living’, stating ‘I believe homosexuality is wrong’.”
“I think for me… it was concerns about how you'd actively promote equality and diversity with children. Because you both made some quite long statements about your belief systems and what you did and didn't believe in. And I think in any fostering organisation, but particularly a local authority, those are things that we absolutely have got to evidence how we promote those things. And I was getting the sense that you would struggle to promote things… I think it was more about when we talked about what we'd expect of carers in Manchester, we talked about believing creationism, and you don't necessarily agree with termination and don't agree with certain ways of living, i.e. being gay or lesbian. And Matthew, you said, "I believe homosexuality is wrong.”
“The decision not to proceed was based on you having a busy household with three children under the age of eight (one, four and seven) which would limit the number of referrals we could look at matching with you and limit our ability to place children alongside your children safely. Whilst home schooling your children wouldn't by itself preclude you from fostering children, this isn't something we would agree to for looked after children. This may cause a child in foster care to feel different from or excluded from how other children in the family are taught and supervised. We discussed the Accelerated Christian Education curriculum you were using to home school your children and how attending worship as a family was important to you. Some children or their birth parents may not wish to attend your family's place of faith and this could also impact on a child if they needed to be cared for by someone else in your absence. We discussed how Manchester City Council is looking for prospective foster care households that are proactive in promoting and providing a culture of acceptance to any child or their family members and positively promote a wide range of lifestyles and partnerships. We therefore require our foster carers to show evidence of their commitment to diversity and an understanding that it is an integral part of foster care. Your beliefs didn't seem compatible with what Manchester requires from our foster carers. After a further discussion with the Head of Service the decision remains that Manchester will not be progressing your interest in fostering further at this time.”
“While a care order is in force with respect to a child, the local authority designated by the order shall not— (a) cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made…”
“Outcome: Children have a positive self view, emotional resilience and knowledge and understanding of their background. 2.1) Children are provided with personalised care that meets their needs and promotes all aspects of their individual identity. 2.2) Foster carers are supported to promote children’s social and emotional development, and to enable children to develop emotional resilience and positive self-esteem.”
“Identity and diversity, respect and individuality 3.43. Many looked after children have low self worth and a very poor sense of their own identity. Many come from families that are subject to multiple problems and marginalisation.The Human Rights Act 1998 and theEqualities Act 2010 , as well as the 1989 Act all require that every individual child who is looked after should be cared for in a way that respects, recognises, supports and celebrates their identity and provides them all with care, support and opportunities to maximise their individual potential. 3.44. Foster carers and fostering services should ensure that full attention is paid to the individual child’s gender, faith, ethnic origin, cultural and linguistic background, sexual orientation and any disability they might have. Children should be encouraged and supported to have positive views of themselves and to be proud of their identity and heritage (standard 2).”
“No one has a right to be a foster carer, and fostering decisions must focus on the interests of the child.”
“Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
“Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
“Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in article 9(1), freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practise in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis v Greece(1994) 17 EHRR 397 , para 31 and also Şahin v Turkey(2005) 44 EHRR 5 , para 105). Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in article 9(2). This second paragraph provides that any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.”
“…the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them. Before us, the only issue about them concerned (iii), since it was suggested that a measure would be disproportionate if any more limited measure was capable of achieving the objective. For my part, I agree with the view expressed in this case by Maurice Kay LJ that this debate is sterile in the normal case where the effectiveness of the measure and the degree of interference are not absolute values but questions of degree, inversely related to each other. The question is whether a less intrusive measure could have been used without unacceptably compromising the objective.”
“Mr Phillips’s submission is also unrealistic on a factual basis. I heard that the Council may need to be able to place children at short notice because of an emergency, in which case it may well be impractical to undertake a risk assessment of the kind Mr Phillips proposes. Mr Phillips’s submission also fails to address the position of a child (who is likely to have “a very poor sense of their own identity”) who is placed with the Smiths and later develops a sense of their identity as homosexual or transgender: I am not persuaded that a risk assessment would obviate the potential clash between a homosexual child and the Smiths who believe that “homosexuality is wrong”.”
“The approach of an appellate court to the assessment of proportionality 142. A significant issue in these appeals is the proper approach to be adopted by an appellate court to the assessment of proportionality. Two different approaches are identifiable in the authorities. In some cases the appellate court treats its role as confined to a review to check whether the first instance court's assessment in relation to the proportionality of a measure was arrived at on the basis of a proper self-direction as to the test to be applied and whether the result arrived at was reasonable, in the sense of being within the legitimate parameters of judgment for the judge; if it is satisfied on these points, the appellate court will not intervene, even though it thinks that it might have reached a different view if it had been deciding the issue for itself. This approach gives particular weight to the assessment made by the judge. As explained in R (R) v Chief Constable of Greater Manchester Police[2018] 1 WLR 4079 , para 64 , where this approach is followed an appellate court will only intervene if the lower court has made a significant error of principle or there is “an identifiable flaw in the judge's reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of such material factor, which undermines the cogency of [their] conclusion”
“157. What is significant about the fact that a case may involve a matter of general legal principle or a challenge to the application of a legal rule or a general policy which covers many cases is that this may be a powerful reason for an appellate court to adopt an approach requiring that court to make its own assessment of proportionality. But this will not necessarily be appropriate in all such cases. 158. For example, a previous appellate decision may already have provided relevant guidance about the proportionality of the general rule or policy so that all that is necessary on appeal is for the appellate court to check that the lower court has directed itself correctly by reference to that guidance and has reached a conclusion reasonably open to it. Or the particular circumstances of the claimant's case may mean that their claim that the rule or policy has produced a disproportionate outcome in their specific situation is on any view limited to those circumstances, meaning that the case cannot be regarded as an appropriate vehicle for wider evaluation of the Convention compatibility of the rule or policy in other cases such as would justify anything other than a review approach on appeal. Or it may be appropriate for the appellate court to modify its approach according to the nature of different issues which are relevant to the overall assessment of proportionality, so as to adopt a review approach where a relevant factor is heavily dependent on an evaluation by the lower court of oral evidence or detailed and extensive written evidence...but making its own overall assessment at appellate level in the light of such factors as determined by the lower court (assuming it has directed itself correctly and has reached a reasonable conclusion on them). This is simply to say that in a complex proportionality assessment it may appear that some factors which feed into the overall assessment are for particular reasons best assessed by one body (be it a minister or the legislature, on grounds of their democratic authority or institutional expertise, or a lower court, if it had a superior opportunity to assess the evidence) even though the overall proportionality assessment is made by another body… 159. The fact that the law in this area seeks to accommodate competing concerns regarding the use of appellate court resources in light of the guidance function and authority of such a court and the appropriate functions of a first instance court, means that it is difficult and potentially misleading to lay down hard and fast categories to determine which of the two appellate approaches should be adopted in any given case.. 160. Instead, the best guidance which can be provided is that…there are certain paradigm cases which are likely to require an approach involving a fresh proportionality assessment by the appellate court (but treating this as defeasible if there appear to be sufficient good reasons for a departure from this approach as a general matter or in relation to particular factors relevant to the assessment) and other paradigm cases where it is likely that a review approach on appeal is appropriate. An example of the former paradigm situation would be a case involving the first consideration at appellate level of a new legislative regime of general application, especially one with considerable significance for society. An example of the latter would be a one-off decision of a judge or an official which depends entirely on the application of well-established law and principles to the facts of the individual case. 161. As we have explained…proportionality assessments involve elements of both fact and law. The relative significance of those elements varies from case to case. This court gave general guidance in In re B which indicates that the appropriate provisional starting point for an appellate court in deciding between the review approach or the fresh decision approach on an appeal is that the former is likely to be appropriate. Lord Clarke JSC emphasised (para 137) the statement about domestic civil procedure in In re Grayan Building Services Ltd[1995] Ch 241 , 254 : “generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision”
“106. The way this ground is stated makes it utterly unarguable. First, it is not the defendant's position that the majority of the population is to be excluded from being approved for fostering because of their Christian beliefs. Although there is no evidence to this effect, it is, as we have said, stated on behalf of the defendant, and we are for present purposes prepared to assume that this is so, that the defendant has approved foster carers who are “very committed Christians who hold to orthodox beliefs and devout Muslims who are similarly committed to their religion” where “those carers are able to value diversity notwithstanding their strongly held religious beliefs.”
“67. For those reasons I believe that the tribunal was entitled to find that the Authority did not infringe the appellant's Convention rights. It might be thought to follow that it cannot have discriminated against him on the grounds of his religion or belief, since the relevant protections under the Convention and the 2010 Act must be intended to be co-extensive. In my view that is indeed the case, but that does not absolve me from considering the issues through the lens of the 2010 Act, which must be the formal basis of the appellant's claim.”
“In summary, Page was decided on the basis that adverse treatment in response to an employee’s manifestation of their belief was not to be treated as having occurred “because of” that manifestation if it constituted an objectively justifiable response to something “objectionable” in the way in which the belief was manifested: it thus introduced a requirement of objective justification into the causation element in section 13(1). Further, we held that the test of objective justification was not substantially different from that required under article 9(2) (and also article 10(2)) of the Convention. I should clarify two points about language: (1) The word “objectionable” in para 74 is evidently a (possibly rather inapt) shorthand for the phrase in para 68 “to which objection could justifiably be taken”
“Direct discrimination in manifestation cases is (uniquely) different from discrimination on the ground of other protected characteristics (and indeed from simple belief discrimination) because it is based, as the court in Eweida 57 EHRR 8 identifies, not on the possession of the characteristic as such but on overt conduct, which thus has the potential to impact on the interests of society and the rights and freedoms of others. That distinction may be said to put it in a special category which requires a more flexible approach.”
“Statutory authority 1(1) A person (P) does not contravene a provision specified in the first column of the table, so far as relating to the protected characteristic specified in the second column in respect of that provision, if P does anything P must do pursuant to a requirement specified in the third column. Specified provision: Parts 3 to 7 Protected characteristic: Religion or belief Requirement: A requirement of an enactment: A relevant requirement or condition imposed by virtue of an enactment.”