Wednesday, August 25, 2010
British human rights attorney Aidan O'Neill responds to my skeptical post regarding the closure of the last Catholic adoption agency in the U.K. He notes that "things are a little more complex on the facts than my post implied":
It is of some note that the Charity Commission considered specific evidence as to the effect of the closure of the Catholic Care adoption agency on children seeking adoption, noting on this that the facts as found by the Commission did not support the claims by Catholic Care that if the charity had to close its adoption service, there were no other alternatives for the hard-to-place children who were matched with parents approved by the charity. The charity had on average provided parents for 10 children per year and the local authorities who placed children through them stated that there were in fact other agencies with as good a track record of finding adoptive parents and homes for such hard-to-place children.
The Commission also noted that as a matter of general child welfare law it is in the interests of children waiting to be adopted that the pool from which prospective parents are drawn is as wide as possible. The Commission heard and accepted evidence to the effect that same sex couples who registered for adoption were significantly more ready than opposite sex couples wishing to adopt to accept a sibling group as adoptees as well as children over 5.
In effect, then, hard to place children were more likely to be considered as potential adoptees by same sex couples and so it could not be said to be in the in best interests of a child seeking adoption that such potential adoptive parents should be screened out without consideration of the merits of placement with them by the application of an a priori rule such as Catholic Care sought to apply – i.e. no same sex couples accepted on their books as potential adoptive parents, albeit that single persons as adopters (without reference to sexual orientation) were considered by and sought by the charity.
I would also say that in my opinion the decision from Briggs J. which resulted in this case being remitted for the Charity Commissioners for reconsideration - seems to me to have been a masterly Solomon judgment if I may say so. Briggs J. came up with a well-thought out analysis for what he suggests is the correct interpretation of the relevant UK law prohibiting discrimination on grounds of sexual orientation – in particular Regulation 18 - which is to allows charities to discriminate on grounds of sexual orientation if - in the particular circumstances of their case - the public benefits of their so doing outweighed the disbenefits of the fact that they are so discriminating. The weighing of benefits against disbenefits was a matter which Parliament has entrusted to the Charity Commission which is why he ordered a to remit of the case back to it to allow it to conduct this exercise, which it has now done.
As Briggs J. notes - that if one accepts that in principle charities can properly be operated and provide their services having regard to sexual orientation issues (for example in providing help lines targeted at gay teenagers, or support to the heterosexual parents of gay children) then, in principle, there must be circumstances in which a charity may be justified in consciously targeting or restricting itself to a heterosexual majority. He suggest that such a targeting might be lawful if, on balance, good works resulted from it, regardless of the faith/motivation behind the targeting (all sounding rather like the Letter of James).
As it turns out the Charity Commission found in fact that the good work done by Catholic Care could in fact be done by other Voluntary Adoption Agencies which did not as a matter of policy discriminate on grounds of the sexual orientation of prospective adopters and which therefore thereby maintained the widest possible pool of adopters, which was clearly within the best interests of any children prospectively seeking adoption.