The exclusion of a transgender woman from her children’s lives must be reconsidered, the Court of Appeal ruled late last year, in a case that contrasts what has been considered to be deeply discriminatory practices in some communities against the more broadminded outlook of the modern world.
A woman left her family and the broader Orthodox Jewish Haredi community in Manchester two years ago after deciding to transition from male to female. Her estranged wife refused to let the transgender woman see their five children claiming they would be ostracised by their very religious and conservative neighbours if they did so, despite pleas for a ‘sensitive reintroduction’ and the former father offering to be as accommodating as possible, even proposing to change his appearance back to the way it had been before his transition.
Although critical of the Charedi Community, Mr Justice Peter Jackson (now Lord Justice Peter Jackson) accepted the mother’s argument at a hearing in the High Court in February 2017 and decided that the community’s threat to ostracise the children posed such a risk of psychological harm to them that they should be limited to receiving letters from their father four times a year. By this point the father had not seen her children for 18 months. Many in the family law world, as well as further afield, found this outcome both surprising and disturbing.
Mr Justice Peter Jackson said at the time: ‘I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact’. He also observed: ‘These children are caught between two apparently incompatible ways of living, led by tiny minorities within society at large … It is painful to find these vulnerable groups in conflict’.
The Court of Appeal’s decision, in late December 2017, fundamentally disagreed with Mr Justice Jackson’s ruling and serves as a stark reminder that discriminatory behaviour cannot and will not be tolerated in the Family Court, and the judges hearing these cases must persevere in their attempts to make contact happen, even when faced with such intransigence and hostility. Firmly rejecting any notion that the children should be denied a relationship with their father, the Court of Appeal described this matter as a ‘Stark, deeply saddening and extremely disturbing’ case which potentially has ‘Profound significance for the law in general, and family law in particular’.
In overturning the decision and remitting the matter back to the High Court for further consideration, the Court of Appeal indicated that when parents cannot agree and make an application to the Family Court the judge hearing the matter must act as a “judicially reasonable parent”, judging the child’s welfare by the standards of reasonable men and women of today in 2017 – that is people who are ‘receptive to change, broadminded, tolerant, easy-going and slow to condemn.’
The Court of Appeal felt that: ‘Even secluded religious communities within society are not above the law of the land’, noting that Mr Justice Jackson did not address ‘head on’ the human rights and discrimination issues that arose and did not consider whether exclusion from the children’s lives on the grounds of being transgender constituted discrimination. The judge should have asked himself: ‘How can the order give proper effect to the reality, whether the community likes it or not, that the father, whether transgender or not, is and always will be the children’s father and, as such, inescapably part of their lives, now, tomorrow and as long as they live?’ In making a final order for letter-contact only, the judge ‘Gave up too easily’ on making direct contact work.
Concluding, the Court of Appeal held ‘The best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved. So strong are the interests of the children in the eyes of the law that the courts must persevere. As the law says in other contexts ‘never say never’. The doors should not be closed at this early stage in their lives.’
A member of the father’s legal team told The Guardian: ‘This decision is one that will be welcomed not just by lesbian, gay, bisexual, and transgender individuals living within small religious groups but by the LGBT community in general’. At Cambridge Family Law Practice we support the conclusions of the Court of Appeal and look forward to reporting the next stage of this process when it comes back to the High Court.
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