Top lawyer savages Ofsted for catalogue of errors in its treatment of Christian fostering agency as High Court case concludes

A top lawyer savaged Ofsted in the High Court yesterday over a catalogue of errors in its treatment of a Christian fostering agency, which he suggested might be motivated by its Chief Inspector’s call for “muscular liberalism”.

The case involves a Christian fostering agency, Cornerstone, which is based in the north east of England. Last year, following an inspection, Government regulator Ofsted produced a report claiming Cornerstone’s evangelical ethos and belief in traditional marriage was discriminatory, and downgraded their fostering work to “requires improvement”.

In response, Cornerstone launched a legal action saying that Ofsted did not have the legal power or expertise to reach this judgement. They added that the regulator has a track record of unsympathetic handling of some religious groups. Chief Inspector Amanda Spielman infamously called for “muscular liberalism” in remarks widely interpreted as a call to enforce aggressive secularism.

Speaking at the hearing, top human rights lawyer Aidan O’Neill QC told the Court that the regulator had misapplied equality law, and that this amounted to an “abuse of Ofsted’s functions”.

“…If Ofsted has departed from this Guidance, what standard is it in fact applying in reaching its judgment adverse to Cornerstone. If it is a standard of ‘muscular liberalism’ spoken to in one published Ofsted document, that shows a fundamental breach by Ofsted of its duty, as a State body, to be neutral as regards the expression of religious belief. This is a duty implicit in respect for Article 9 ECHR which is imposed on Ofsted by Section 6 HRA. In failing in that duty in relation to Cornerstone Ofsted has acted unlawfully…”

Mr O’Neill dismissed Ofsted’s claim that Cornerstone’s Christian ethos was not central to the provision of the services:

“For the claimant the provision of its fostering and adoption support services fall centrally within Christian observance, as it considers to be evidenced by Scriptural passages…”

He went on:

“The claimant specialises in offering permanent homes to children usually in the care of local authorities, providing ‘Forever Families’ who care for a child, or a sibling group, beyond their time in care. The claimant considers that its provision of fostering and adoption support constitutes a manifestation in practice and observance of its religious beliefs.”

Mr O’Neill concluded:

“Accordingly the evidence before this court does indeed and in any event support the prior ruling of the Charity Commission of the legitimacy and proportionality of Cornerstone’s polices which [are] the manifestation of the beliefs of evangelical Christianity in the practice of Christian charity and the support of Christian family life, all of which are undoubtedly legitimate aims within the context of a democratic polity characterised by respect for pluralism, tolerance of diversity, religious liberty and autonomy and subsidiarity.

“For the reasons set out above, and for the reasons set out in the claimant’s skeleton argument, it is submitted that Ofsted has acted unlawfully in including within the Report the findings and requirements concerning Cornerstone’s alleged breaches of the EA 2010 and HRA 1998, in that Ofsted (a) has made the errors of law set out above; (b) has acted inconsistently with Cornerstone’s Convention rights under Articles 9, 10 and 11; and (c) has failed to take into account and/or give proper weight to the following relevant considerations: a) Cornerstone’s Memorandum of Association, Statement of Beliefs and Code of Practice; b) Cornerstone’s rights under Articles 9, 10 and 11 ECHR; c) the terms of sections 29 and 193, and §2 of Schedule 23 EA 2010; d) the terms of sections 6(3)(b) and (5) and 7(1)(b) and (7) HRA 1998; e) the relevant guidance in the SCCIF (set out above).

Responding to Ofsted’s surprising assertion in court that “fostering is a secular act”, Mr O’Neill said:

“Is [counsel for Ofsted] saying religious acts only happen in your place of worship and as soon as you come into the public square it cannot be categorised as a religious act? They are failing in their duty of neutrality, not appreciating that evangelical Christianity in particular, which founds itself on scripture passages, includes the injunction to feed the hungry, and carry out in practice what you believe. So don’t say to me fostering is a secular act. When carried out by Cornerstone it is the fulfilment of a religious duty.”

And in a fresh boost to their case, Cornerstone has received the backing of the Nationwide Association of Fostering Providers’ Chief Executive, Harvey Gallagher, who commented yesterday:

“Cornerstone NE have been members of NAFP since 2017. During that time, I have found them to be a child-focused and passionate group of people. This can be seen in their previous Ofsted inspection reports.

“Within foster care, people of faith are represented more than the general population. This makes sense when we consider the motivation of most foster carers – that being to help a child. It also makes sense to me that we should aim to recruit more foster carers of faith. Of course, this should be undertaken in line with assessment practice for all prospective carers.

“At the same time, prospective foster carers can choose to foster for any agency, usually one who covers their location. There is a wide range of fostering agencies. This is important because it means that carers can choose the agency that is right for them, the one that will understand them and be best placed to support them through some tough times ahead. Cornerstone NE represent a part of this important mix. A wider range of carers is good for children, who themselves have different needs and will be best matched when there is a choice.

“I have no reason to doubt Cornerstone NE’s ethical base. In fact, I have found the agency to be open-minded and accepting. The contribution and commitment that I have seen them make to fostering (and adoption) is important and meets a particular need. If they were to be lost to the sector, this would be a real loss for children.”

Speaking ahead of the one-day court hearing, Sheila Bamber, Chair of Trustees for the agency, said:

“This report, based on visits between 27 February and 4 March 2019, acknowledges the high levels of care and support we provide to both children and those fostering them. It compliments safeguarding, the range of activities for the children we encourage, and how our team have helped ‘many children’ through the adoption process, including those deemed difficult to place, such as large groups of siblings, or those with complex needs.

“However, we are concerned that Ofsted has failed to have proper regard to the law in reaching its overall judgement, downgrading Cornerstone for its faith ethos that requires foster carers to be committed evangelical Christians who live out that faith in all areas of their life.”

Reverend Bamber continued:

“We maintain that this judgement displays a seriously flawed and discriminatory approach to our service. Indeed it is contradicted by a subsequent inspection of our adoption support service which concluded the service is good in all areas. Importantly this report acknowledged and accepted our agency is underpinned by Christian values, and that the service is ‘child focused’.

“Ofsted is not a judicial body and is not equipped to make definitive legal statements about Cornerstone’s compliance with the Equality Act 2010 and Human Rights Act 1998. In so doing, Ofsted has acted beyond its remit and has misapplied the law.”

Pam Birtle, CEO of Cornerstone, who was herself in care as a child, said:

“In 2019 when the inspector for fostering came, she clearly identified that although the law had not changed, and although Cornerstone’s practices had not changed – we still operate to our genuine operational requirements to support Christian families, couples and individuals – that what had changed was the culture. It was the inspector’s determination that Cornerstone was therefore no longer lawful.

“Cornerstone represents less than one per cent of all of the agencies that are available in terms of the independent fostering sector. And within that sector we are small. What we do provide is an opportunity for families to take children who are hard to place and if Cornerstone’s service was lost, then that avenue would also be lost.

“What we know right now is that there are over 4,000 children waiting for adoption placements and fewer than 3,000 adopters already approved. In the fostering area, lots of foster carers are in their 60s and their 70s nationwide and they are ageing out of fostering at a time when fewer and fewer families are coming forward to take on looked-after children.

“Although our contribution is not massive, it’s significant to the children that we take and it’s our plan on the other side of this court case to grow Cornerstone to provide a greater sufficiency for the local authorities, so that more and more children can have the families that they so desperately need.”

Click here for a video of Cornerstone CEO Pam Birtle explaining why they are bringing this case.

Cornerstone strongly denies that its recruitment process is non-compliant with equality and human rights legislation, and lawyers acting for the agency say Ofsted has “erred in law in making its finding”. They contend that Ofsted’s requirements are a “disproportionate interference in [Cornerstone’s] Convention rights under the Human Rights Act 1998” and are “incompatible” with provisions in the Equality Act 2010.

The lawyers cite Section 193 and Schedule 23 of the Equality Act, which establish that religious charities may restrict “the provision of benefits” to fellow believers who subscribe to their statement of beliefs. Cornerstone’s right to rely on these provisions was endorsed by the Charity Commission. A previously unpublished letter from the Commission in 2011 states:

“…Cornerstone is permitted to restrict the provision of services in the course of activities undertaken by the organisation or on its behalf or under its auspices where the restriction is applied for the following reasons:

“(a) because of the purpose of the organisation, or

“(b) to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.”

(Click here to read the Charity Commission’s letter.)

Cornerstone’s lawyers also point to official guidance which states that Ofsted may not impose a new requirement on a charity unless it is able to demonstrate that actions by the charity are having an impact, or likely to have an impact, on children’s experiences and progress.

In addition, Ofsted has delayed accrediting Cornerstone as a Voluntary Adoption Agency (offering full adoption services). Its application was submitted in 2016.

Cornerstone is respected for its work with children and families. It has submitted to the Court letters of commendation from families and social workers. One describes staff at Cornerstone as “accepting, understanding and non-judgmental”. Another says Cornerstone’s work “clearly makes a difference to young people and their families” and describes staff as “friendly, knowledgeable and happy to assist”.

Cornerstone has facilitated the transition to adoption for something approaching 80 per cent of the children it has placed, even though this cuts off the funding which it receives for the foster placement. And there have been no adoption breakdowns during the 20-year history of the organisation.

Lawyers acting for the agency say Ofsted’s actions engage Cornerstone’s rights under Articles 9, 10 and 11 of the European Convention on Human Rights.

Describing the principles at stake in the case, the lawyers state that it raises “profound issues of public importance” including the right of “religiously-based organisations to carry out charitable works in the public square in a manner which is consistent with the beliefs and practices of their religion and how those rights interact with the requirements of equality law and with respect for the fundamental rights of others”.

Cornerstone is being supported by The Christian Institute, which defends the religious freedom of evangelical Christians in the UK. The Christian Institute has been involved in several major court successes, including Ashers Baking Company’s appeal to the UK Supreme Court in 2018.

Deputy Director of the Institute Simon Calvert commented:

“Cornerstone is a small, much-loved Christian agency that achieves excellent results for children and families, something that has been recognised by Ofsted in previous inspections, by the children and families they have supported, and by the local authorities they have worked with. Its existence relies on exceptions to equality law passed by Parliament in 2010 precisely to protect the ethos of faith-based agencies like Cornerstone.

“Despite having repeatedly graded Cornerstone as ‘good’ across the board, and without any subsequent changes to the law, Ofsted now says the fostering work ‘requires improvement’ because of its Christian ethos. The only thing that changed between their 2015 grading of Cornerstone as ‘good’ and its 2019 grading of ‘requires improvement’ is the Chief Inspector’s call to enforce ‘muscular liberalism’.

“Cornerstone widens the pool of available adopters by bringing evangelical carers into the system, whilst subjecting them to the same rigorous assessment you would expect from any good agency, something that even Ofsted previously accepted.

“There are 306 Independent Fostering Agencies in England along with support agencies that specifically cater for people with various protected characteristics. So why is Ofsted insisting that non-evangelicals must also be able to use England’s only evangelical fostering agency?

“The staff and trustees are effectively being ordered to go against their faith by a government body. Cornerstone is challenging Ofsted in the High Court and hopes success in the case will help protect churches and other religious bodies that rely for their existence on these vital Equality Act exceptions.”

ENDS

Notes for Editors

• Cornerstone’s legal team consists of Aidan O’Neill QC, Ben Silverstone, and Liverpool-based solicitors Ai Law. The Christian Institute’s Legal Defence Fund is underwriting the cost of the legal action. Our in-house lawyer, Sam Webster, has been working with Cornerstone for twelve years.
• Click here to watch Cornerstone’s CEO explain why they are bringing the case. To download broadcast-quality video of her remarks, click here.
• Ofsted agreed not to publish its negative report on Cornerstone’s fostering work until after legal proceedings are concluded. The report stating that Cornerstone’s post-adoption support work is ‘good’ was published in June 2019. Click hereto read the 2019 report and the 2015 report describing their fostering work as ‘good’. NB the relevant equality legislation has not changed since the 2015 report.
• Cornerstone is an independent fostering and post-adoption support agency based in the north east of England. It recruits evangelical Christian foster carers to provide loving and stable homes for children with complex needs, motivated by the biblical command to care for the orphaned and fatherless. “Defend the weak and the fatherless; uphold the cause of the poor and oppressed.” (Psalm 82:3). All carers must sign a statement of faith and code of conduct which reflects mainstream Christian belief, including Christ’s teaching that marriage is between a man and a woman.
• Cornerstone places children with married couples and single people. Ofsted mistakenly asserts that it only places them with married couples.
• Cornerstone is a charity. It is primarily funded through the payments made by local authorities when Cornerstone places a child with foster carers.
• It provides a range of short-term, emergency and respite fostering placements, as well as continuing to provide the ‘Forever Family’ model which reflects the majority of its placements, and where young people are encouraged to stay and be supported when they leave the care system, until they are ready to transition to independence.
• Staff and carer retention rates are exceptionally high. Foster carers only resign because they adopt the children in their care or they retire.

Cornerstone’s website states:

• Cornerstone aims to improve the future for children in the care of Local Authorities by finding loving, two-parent ‘forever’ homes where they can grow and develop to the best of their abilities.
• All carers are Christians, but the children obviously have a right to choose what they believe.
• All children have a right to experience positive family life and values, encouraging a sense of belonging and identity, which will help them to move more successfully into adulthood.
• Every child placed with a view to permanence is regarded as a family member with all the usual relational rights and privileges that this would entail.
• Respite carers will be seen as ‘extended family’.
• The skills, knowledge and services of a wide range of professional and lay people are designed to ensure that each child reaches their potential and that families are adequately resourced and equipped for the task.