Scottish regulator accepts quashing of its order to adoption agency

New ruling leaves St Margaret's Children and Family Care Society free to continue its policy on adoption by gay parents

St Margaret’s Children and Family Care Society
St Margaret’s Children and Family Care Society

The Office of the Scottish Charity Regulator has decided it will not appeal against the Scottish Charity Appeal Panel’s decision to quash the regulator’s order that a Catholic adoption agency must stop excluding same-sex couples from its adoption services.

The OSCR issued an order in January 2013 to St Margaret’s Children and Family Care Society telling it to ensure its criteria for assessing potential adoptive parents were "clear and transparent" and did not unlawfully discriminate under the Equality Act 2010.

The charity's appeal to the regulator was rejected in March 2013. It then appealed to the SCAP, whose ruling on 31 January 2014 overturned the OSCR’s original order, saying that if the charity had complied, "it could no longer, as a matter of canon law, operate as a Catholic charity", and that this would in effect force it to close.

The SCAP judgment also said that although the original decision from the OSCR was "not unreasonable", there was "procedural irregularity" in the way the OSCR reviewed the charity’s initial appeal. The SCAP recommended an immediate review of the way the OSCR takes such decisions.

The OSCR said in a statement on its website that its decision not to appeal was based on the fact that an appeal would be expensive, unlikely to succeed and have limited wider implications, especially given the recent passing of gay marriage legislation in Scotland.

"The SCAP made its decision having heard additional evidence from the charity, which was not available to the OSCR when it took its decision to issue a direction to the charity," the OSCR statement said.

The regulator also said that the SCAP’s decision "includes a number of comments on wider aspects of charity regulation which OSCR finds difficult to follow". It has published an explanatory note setting out its position.

This note says that a forthcoming update of its Meeting the Charity Test guidance will "consider further the issues raised by the St Margaret’s case".

It also says that the OSCR is duty bound to promote equal opportunities, and that in cases where a charity’s pursuit of benefit results in disbenefit by discrimination, it will "make a judgement on the whole picture of public benefit in the body being looked at".

The note also says: "There may be circumstances where our duty to ensure compliance with charity law will require us to take action which may result in charities being removed from the Scottish charity register, even if this affects their ability to continue in existence."

A spokesman for St Margaret's said it was "relieved and glad" at the OSCR's decision not to appeal.

"The decision in favour of St Margaret's was a unanimous one, and the OSCR rightly acknowledge that it is unlikely that the Court of Session would decide to revisit it and an appeal would therefore be unlikely to succeed," he said.

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