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Couple seeking to adopt were discriminated against on the grounds of race

January 2020

Introduction of race criterion in pre-registration of interest interview process was direct discrimination.

The Equality Act 2010 provides that a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Race is a protected characteristic, which includes colour, nationality, ethnic or national origins.

The Act applies to those providing services to the public, or a section of the public.

The Crown Court has recently ruled on an interesting case concerning a British couple seeking to adopt through their local adoption agency in the UK who were prevented from completing the registration process and advised that they had better prospects of adopting a child from India.   

Case details: Mander v Windsor and Maidenead RBC

Mr and Mrs Mander were both born in the UK and are both British citizens. They identify as part of the wider Sikh community, with an Indian heritage background.

After several unsuccessful years of trying for a child, Mr and Mrs Mander decided to look into adoption. They approached Adopt Berkshire (AB), their local adoption agency (which came under the purview of Windsor and Maidenhead Royal Borough Council). The Manders told AB that they were open to adopting a child of any ethnicity and that they would prefer to adopt a child of pre-school age.

Whilst engaging with AB the Manders took part in two calls as well as an initial visit and an initial visit review. After each one of these they were told that they would not be invited to complete a 'Registration of Interest' (ROI) because:

  • the children awaiting adoption were white-British and there weren't any children of Indian or Pakistani descent; and
  • there were sufficient white-British approved prospective adopters, making it unlikely that the Manders would be able to adopt due to a policy which preferred to place children with parents of the same, or similar, ethnic background.

Instead, AB advised the Manders to consider adopting from India and gave them the relevant adoption agency contact details.

The Manders submitted a claim for unlawful direct discrimination on the grounds of race, specifically on the basis of their national or ethnic origins and/ or their colour, amongst other things.

Court ruling

The County Court found that the 'initial visit review' introduced by AB was contrary to their own policy and procedure on adoption recruitment. The court also referred to statutory guidance on adoption for local authorities, which also stipulated that a ROI must not be refused on the grounds of ethnicity and culture.

It was found that ethnicity and culture were relevant under the statutory guidance when matching children with prospective adopters, but not when considering recruitment and suitability of prospective adopters. At court, AB staff admitted that they had considered the Manders' race when they refused to progress them to the ROI stage.

As a result the claim for direct discrimination on the grounds of race was upheld and AB were ordered to pay £18,000 in damages and £60,000 in special damages to cover the cost of the Manders' inter-country adoption following AB's decision.

Comment

Knowing that statutory guidance to adoption agencies prioritised matching children and prospective parents of the same or similar ethnic background, it appears AB was trying to be helpful to the Manders in this case by advising they look to adopt from another country. 

Nonetheless, AB's mistake was to make assumptions that led to the Manders being prevented from becoming part of the adoptive pool, even if once part of the pool they had little likelihood (in AB's view) of adopting a child. In this case, the decision to exclude the Manders from ROI should have been more obviously wrong given guidance on this point.

Whilst not an employment case, it serves to reinforce the point that what organisations might consider to be acting in the best interests of all parties may in practice be discriminating on the basis of a protected characteristic. Employers should remain alert to this possibility.

If you would like to discuss any aspect of this article further, please contact Michael Crowther or any other member of the employment team on 0113 244 6100.

You can also keep up to date by following Wrigleys employment team on Twitter

The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.

Michael Crowther View Biography

Michael Crowther

Solicitor
Leeds

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