Wednesday 5 February 2014

St Margaret’s Children and Family Care Society (3) SCAP Judgment

The decision in the case of St Margaret's Children and Family Care Society v Office of the Scottish Charity Regulator has been published on the website of the Scottish Charity Appeal Panel and it makes interesting and at times confusing reading. For the past history of this case and the English Adoption Agencies see HERE and HERE

It is of course a decision at first instance so it is not binding on any other Court or Tribunal however it is a decision which is likely to be highly persuasive in any other Case involving a Religious Charity so it is worth the trouble of reading in detail.

The Judgment emphasises that the case is largely based on the specific facts of the operations of St Margarets and indeed the main criticism it makes of OSCR is that it was applying a blanket approach that assumed St Margarets was breaking the Equality Act and therefore it should be removed from the Charity Register.  One point that is made in the judgment more than once is that there was no complaint made about St Margarets by any prospective adoptive couple either same sex or heterosexual and the investigation by OSCR was based on a purely theoretical complaint from the National Secular Society. In this respect paras 740 - 810 are interesting because they looks at the reason why OSCR was threatening to remove St Margarets from the Register namely because, in the opinion of OSCR, St Margarets was breaching the Equality Act and therefore did not offer "public benefit" which is a requirement of Charity Registration in Scotland (and also in England)

"It appears to The Panel, ......, that [OSCR] simply took the view at an early stage that any type of discrimination which breached The Equality Act amounted to a disbenefit sufficient to fail The Public Benefit Test.
This approach was in The Panel's view erroneous and the Public Benefit Test was incorrectly applied .........

The Panel is of the view that it is not as simple to say that if The Equality Act is breached then the Public Benefit Test is not met and any guidelines contrary to that view should be revised by [OSCR]...... The contribution to society of an adoption service is part of the activities of The Appellant which does provide a Public Benefit in the charity law sense of that phrase and had the test been properly applied The Respondent would have quite correctly considered there to have been Public Benefit in those activities."

This may be of help to any Charity which is accused in the future of breaching the Equality Act. Any such breach does not mean that the Charity should automatically cease to be a Charity. If there are breaches of the Equality Act then such breaches should be dealt with in accordance with the regulatory provisions of the Equality Act and not by refusing or removing Charitable status.

Of a more general application is the fact that SCAP found that St Margarets was a "Religious Organisation" for the purpose of Schedule 23 of the Equality Act (which provides exemptions for Religious Organisations) and was also a "manifestation" of Religion for the purposes of Article 9 of the European Convention of Human Rights. It was argued by OSCR that St Margarets was simply an Adoption Agency and therefore was not "religious" Paras 470 - 490 are fascinating in this respect

"The Catholic Church understands charity as a fundamental aspect of the life of the Church. It is not something that the Church does, but something that the Church is, and which defines the Church's nature. Charitable activity within and for the wider community is seen to be an essential part of the religious mission, witness and outreach of the Catholic Church (Benedict XVI Encyclical Deus Caritas Est (2005))."

"Catholic laity have the right under Canon Law (Canon 1030 of the Code of Canon Law) to form charitable agencies under the auspice of the Catholic church. Such Catholic charities are required as a matter of Catholic Canon Law to follow Catholic principles in their activity and they may not accept commitments which could in any way affect the observance of those principles. (Benedict XVI " Apostolic Letter "On the Service of Charity"

Whilst in Para 1000 referring to the evidence given by a Director of St Margarets

"the Catholic Faith was a lifestyle more than the mechanics of attending a church and part of that lifestyle was the importance of stable family relationships found within married couples. He [the witness] referred to Matthew 25 from the New Testament as his pointer and what he considered The Appellant's organisation was all about. ('Lord, when did we see you hungry and feed you, or thirsty and give you a drink? When did we see you as a stranger and welcome you, or naked and give you clothes to wear? When did we see you sick or in prison and visit you?' "Then the king will reply to them, 'I assure you that when you have done it for one of the least of these brothers and sisters of mine, you have done it for me.)

and Para 1090 

"The Panel does not agree with The Respondent that The Appellant is
merely an Adoption Agency or a non-religious charity simply because its main purpose appears not to be to conduct worship services. There are other religious charities for example who do not worship a deity but are
entitled to be charities and The Act does not define religion and belief as exclusively for worship, hymn singing, services and sacraments. Differing religions and differing charities whose principal purpose is the advancement of religion carry out these activities to a greater or lesser extent.
The Panel is of the view that The Appellant is a Religious Charity and there are the essential characteristics to make it so. As a Religious Charity it is able to rely on Article 9 on its own behalf and on behalf of its members.

How the future will lie for St Margarets is difficult to say.  it is likely that OSCR will decide not to Appeal because the Panels decision on the very narrow point of "public Interest" was, legally speaking, the crucial point in relation to the powers and the actions of OSCR and the Panels decision on that point seems unassailable.  St Margarets may however be faced with further legal action from the Equality and Human Rights Commission and no doubt from the troublemakers of the National Secular Society.  What really gets to me is that the NSS don't do anything themselves to help Children or indeed to help anyone they simply criticise and try to change the good works done by others.

1 comment:

Sean Fear said...

It seems too that the Charity won its case because it had no outright bar on gay couples adopting, even though its criteria would favour married Catholic (and therefore heterosexual) couples.