A couple opposed to same-sex relationships who applied to be foster carers have been refused permission for judicial review. The couple in Johns v. Derby City Council are members of the Pentecostalist Church and believe that same-sex relations are wrong. During the fostering assessment process, they indicated that these views would not change. They said that they would advise a child who thought they might be gay to ignore it, or they would "gently turn them around". A report submitted to the fostering panel expressed concerns that such views did not comply with relevant statutory guidance, which require that foster care services value diversity and promote equality. The fostering panel deferred their decision. The couple applied for judicial review, having previously written to the local council asking for their policy on Christian views and fostering.
In weighing up the issues, the English High Court concluded that the attitude of potential foster carers to sexuality was a pertinent consideration. They bore in mind the relevant statutory guidance, which required that children be supported regardless of their sexual orientation and of fosterers' personal views. They rejected the couple's argument that they were being discriminated against on religious grounds, on the basis of previous case-law Ladele and McFarlane. They found that compliance with anti-discrimination legislation prohibiting sexual orientation and equal opportunities legislation constituted justification, if it were needed. They noted that Article 9 ECHR (freedom of religious belief) was a qualified right and that there was no "right" to foster, the couple having voluntarily subjected themselves to the pertaining standards. The Court observed "it is important to realise that reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law".
At the start of the case, the Court noted that no decision as to whether to approve the couple had been made. To that extent, the matter concerned principles in the abstract. They nevertheless proceeded to consider the general issues arising, warning that this was a matter "at the very outer limit of what could be an appropriate exercise of our jurisdiction". The Court added that "the kind of situation where it is appropriate to invite the court to decide some abstract or future question is where the relevant facts are clear and where the identified question of law can be answered with something approaching a simple yes or no". They refused to grant a declaration, considering that the lawfulness of such decisions would be fact-sensitive.
The doctrine of mootness -whereby a court will not entertain hypothetical/academic issues - has a sound basis and yet can prove a barrier to public interest litigation. PILA will shortly be providing case summaries and FAQs on mootness on its website, where readers will also find resources on standing and costs.