Christian fostering agency in High Court challenge against Ofsted after hostile report orders them to abandon religious ethos

A Christian fostering agency in the north-east of England has launched legal action against the regulator Ofsted over a controversial inspection report that compels the agency to abandon its religious ethos.

Cornerstone (North East) Adoption and Fostering Service, a small independent fostering and post-adoption support agency that only places children with evangelical Christian foster carers, was visited by Ofsted inspectors last year. Ofsted 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.

Despite previously being rated “Good” in all areas, an Ofsted report issued in June 2019 downgraded Cornerstone’s fostering work to “Requires Improvement”. It labelled the Christian ethos of the agency “discriminatory” because it only works with evangelical Christian carers, and holds to the mainstream belief that marriage is between a man and a woman. At the same time, Ofsted issued a separate report on Cornerstone’s post-adoption support work, grading it “Good”.

A judicial review of Ofsted’s actions will be heard in the High Court sitting at Leeds on 6 and 7 May. Lawyers from both sides will present their arguments by video link.

Commenting on the Ofsted report, 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 2015.

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. Its existence relies on exceptions to equality law passed by Parliament in 2010 precisely to protect the ethos of faith-based agencies like Cornerstone.

“Ofsted is seeking to deny Cornerstone’s right to rely on these exceptions, which are used every day by many thousands of religious bodies and places of worship. Despite having previously graded Cornerstone as ‘good’ across the board, and still rating its adoption support as ‘good’, Ofsted says the fostering work ‘requires improvement’ because of its Christian ethos.

“Evangelical Christians sometimes struggle to get through local authorities’ fostering recruitment because they can be uncomprehending of, or even hostile to, their beliefs. 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.

“There are 306 Independent Fostering Agencies in England. 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.
• Click here to read a factsheet on the case.
• 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 and 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 rate is exceptionally high. Foster carers only resign because they adopt the children in their care or they retire.
• Ofsted agreed not to publish their negative report on Cornerstone’s fostering work until after legal proceedings are concluded. Their report stating that Cornerstone’s post adoption support work is ‘good’ was published in June 2019. Click here to 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’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.