Loophole offers hope to adoption agencies
By Simon Caldwell
21 November 2008

Two church-run adoption agencies have changed their charitable objects to allow them to turn away same-sex couples on religious grounds.

St Margaret's Adoption and Child Care Society, a Catholic agency in Glasgow, and the Cornerstone Adoption and Fostering Service, an evangelical agency in the north east of England, will now be able to comply with new gay rights laws while remaining true to their religious convictions.

Their success in changing their constitutions to comply with the law and stay within the control of their respective churches has raised serious questions over why the 11 English and Welsh Catholic adoption agencies have been unable to do the same.

So far, five of these have broken ties with the bishops to become independent secular institutions and one has wound up its adoption service altogether. Two others are undecided, while those in Westminster, Birmingham and Leeds have seen their applications to change their objects turned down by the Charity Commission.

There are just six weeks remaining before the agencies must comply with the Sexual Orientation Regulations (SORs) that were brought in to ban discrimination against gay people in the provision of goods and services.

But there is still time for the agencies to follow the route taken by St Margaret's and Cornerstone.

Neil Addison, a barrister and expert in religious hatred law, said: "The agencies can amend their constitutions within 24 hours if they wanted to. That is not the problem. All that is lacking is the will."

He said the agencies were in a position to comply with the SORs and be protected under Part 2 of the Equality Act 2006 - which prevents local authorities discriminating against organisations on the grounds of their religious beliefs - and under Article 9 of the Convention of Human Rights, which guarantees the right to freedom of thought, conscience and religion.

He said he thought that the "real reason" why many agencies had cut ties with the Church was because they were happy to comply with the SORs.

Lawyers representing the three adoption agencies that failed in their attempts to change their objects have been in contact with Cornerstone and St Margaret's to try to find out why they have succeeded.

They had earlier hoped that by explicitly stating that the agencies dealt solely with married couples and single people they would satisfy Regulation 18 of the SORs.

This allows limited discrimination on grounds of sexual orientation by "reason of, or on the grounds of, the provisions of a charitable instrument".

But some experts say their approach is directly discriminatory and offers no protection under existing religious discrimination laws. The successful agencies re-worded their objects to specifically refer to their religious character. Discrimination against gay couples would be indirect and a consequence of observing their religious ideals.

Jim Richards, the director of the Catholic Children's Society (Westminster), said the success of Cornerstone had "given hope" to the trustees of his agency in their efforts to both comply with the SORs and to remain in the control of the Archdiocese of Westminster.

"Our solicitors will use all legal arguments open to us," he said.

The English and Welsh Catholic adoption agencies, which together find new homes for 250 children a year, have until New Year's Day to comply with the SORs or face the prospect of legal action or the withdrawal of their funding by local authorities.

The response of the Catholic Church in England and Wales to the threat to its adoption agencies has been undermined by internal divisions.

Although the bishops were united in opposing the SORs, they have failed to achieve consensus in how their agencies should respond to the law.

The agencies, as charities in their own right, were finally given the task of tackling the problem as they saw fit.

However, they were advised by the Bishops' Conference of England and Wales not to explore legal avenues that would allow them to comply with the SORs and remain Catholic.