Foster care and religion: the legal debate

Published on Halsbury's Law Exchange here.

In a previous post I considered the case of a Christian couple whose views on homosexuality rendered them unsuitable in the eyes of their local authority to foster children. This week a different couple were also unsuccessful in seeking to challenge their local authority on the same issue (R (Johns and another) v Derby City Council (Equality and Human Rights Commission intervening) [2011] All ER (D) 292 (Feb)), and predictably the same strident debate in the media has followed.

The judges held that there was a need to value diversity and promote equality and to value, encourage and support children in a non-judgemental way, regardless of their sexual orientation or preference. That duty did not apply only to the child and the individual placement, but to the wider context, including the main foster carer, a child's parents and the wider family, any of whom might be homosexual. In those circumstances, it was impossible to maintain that a local authority was not entitled to consider prospective foster carers’ views on sexuality, least of all when it was apparent that the views held and expressed might well affect their behaviour as foster carers. The authority was entitled to explore the extent to which prospective foster carers' beliefs might affect their behaviour and their treatment of a child being fostered by them.

I am a firm advocate of both sexual equality and a complete separation of Church and state, and sympathise with the authority's view accordingly. But the situation is quite complex.

The first question - not considered anywhere in the judgment or much in the literature - is whether or not the same test should apply for placing children with foster parents as for removing children from their original parents.

If the test were to be the same, then it would have to be far less intrusive than the current foster parent investigation, unless we were prepared to have the Orwellian spectre of local authorities investigating all parents and interrogating them regularly as to every aspect of their social and political views.

Given, therefore, that it is an unavoidable fact that there are millions of religious parents and they are not being deemed ipso facto unsuitable, it might be asked why the authority should concern itself with the religious beliefs of prospective foster parents. On the other hand, placing any children, still less ethnic minority children, with devout adherents of the former Dutch Reform Church would be unreasonable to say the least, as would be the case if the parents were open admirers of Osama Bin Laden who expressed the desire to swell the ranks of martyrs. One could imagine many others.

It does not therefore seem right to allow carte blanche foster placement with no investigation of the views of prospective parents.

What, therefore, should that investigation entail? Rosalind English in the UK Human Rights Blog considers that religion by definition requires a narrow minded approach to matters such as sexual orientation, blasphemy, the status of women and so on, and therefore the chances of any admitted religious adherent passing the authority's muster must be slim. They will therefore have to lie about their beliefs or not bother.

That may now be the law, but despite agreeing with Ms English that a religion almost by definition must require adherence to its own tenets and some (at least implicit) denigration of non-believers or other deviants (though not necessarily for all religions - and indeed one further point is how to define a religion), I am not persuaded that this should indeed be the law.

I return to the previous post, in which I argued that given we still (fortunately) have freedom of religion and freedom of thought, a wide mesh for tolerable views should be applied. After all, a child has to be educated in the state run or state-approved school system and it is idle to assume that children will not encounter all manner of views, good, bad, arguable and indifferent in all aspects of their life. If that school system does its job properly the children will learn to question, debate and investigate views including those of their parents. Indeed, if the state is concerned about unacceptably narrow views it should question the very concept of religious schools, which in my view are simply not compatible with the goal of a diverse, tolerant society, however excellent their academic results or disciplinary record.

There are many aspects of prospective foster parents that ought to be properly investigated - their financial probity and security, lack of criminal convictions, empathy with children, reasons for wanting to become foster parents, previous involvement with children in whatever capacity, and so forth. Their religious and political views, unless extremist, should not be towards the top of that list.

One final point. A question was raised that the prospective carers in the instant case “would not take a Muslim child in their care to a mosque”. Children should not be considered to have a religion of their own, they should be allowed – and encouraged – to investigate and question all matters of faith and to make their own mind up in due course.