Catholic Care excluded same-sex couples from consideration as adoptive parents in accordance with what it perceived to be Roman Catholic teaching. The Equality Act (Sexual Orientation) Regulations 2007 outlawed that policy but gave voluntary adoption agencies until 31 December 2008 to comply. Regulation 18 of the 2007 Regulations allowed charities an exemption for restricting benefits to persons of a particular sexual orientation provided the restriction was in pursuance of the provisions of a charitable instrument. Catholic Care therefore sought and was refused the Charity Commission's consent to amend its Memorandum of Association so as to bring it within the exemption regime.

In its second appeal to the Upper Tribunal, Catholic Care accepted that religious conviction alone could not in law justify the denial of its adoption services to same-sex couples but argued that its proposal was proportionate to achieving a legitimate aim of continuing its services because same-sex couples would be able to use other voluntary adoption agencies and local authorities. Moreover, if it could not discriminate it would lose its voluntary income; and if it were to close, the overall provision of adoption services and the number of children placed with adoptive families would be reduced. Sales J rejected Catholic Care's latest appeal. He agreed with the First-Tier Tribunal that it had failed to demonstrate sufficiently weighty reasons to justify the proposed discrimination. The fact that same-sex couples could seek access to adoption services elsewhere would not stop them from feeling discriminated against or mitigate the harm done to the general promotion of equal treatment for heterosexuals and homosexuals. [Frank Cranmer]