As family lawyers we bear witness to a great many distressing situations. We have to develop emotional toughness, because if we felt every pain caused to our fellow men and women deeply and personally, we’d be no use as lawyers or mediators. Because of that, it’s rare when reported cases get to us, and one this week really has: it’s judgment on an application by a father of 5 children in the Orthodox Jewish community for contact with those children, complicated by the fact that this father is transgender and now living outside the community as a woman. It’s also captured the attention of the press, too, which portrays it as a struggle between modern and ancient ways of life, putting the Charedi community in the spotlight again.
There have been a number of recent judgments in the family courts concerning communities such as these: we wrote about one here . The judgments both in that case and in this one paint a portrait of an incredibly tight-knit society isolated from all outside influences and determined to remain so, living by rules derived from the first five books of the Old Testament and their interpretations by elders and teachers.
For those of us who choose to live modern lives, an idea of a community that prohibits newspapers and social media, insists on separate-gender schooling from early years, arranged marriages and where single-parent families are almost unheard of, may be difficult to imagine. The fact that one needs to bear in mind when reading this judgment or any press reports about it, is that this is the only world these five children, ranging in age from 12 down to 2, have ever known. Judgments on children’s arrangements after the separation of their parents are made with the welfare of those children as the paramount consideration. Any ‘rights’ held by adults inevitably take second place to the children’s best interests.
The background can be briefly explained. The parents married in an arranged marriage in 2001. The applicant stated that she had felt “a consistent nagging feeling of incongruity” since she was very young, but family members dismissed it; once married, she was warned that a separation would lead to exclusion from the community, and from her children, and she even received death threats. Nevertheless, the applicant left the family home and the community, and has not seen the children for 18 months. She now lives as a woman and is considering gender reassignment.
The effect on the children’s mother of the separation and her husband’s transgenderism was severe. The mother stated that she was profoundly shocked when her husband left her, and was unable to leave her home for three months. She said her former husband has been “severely ostracised” after leaving the family, and she was concerned that her children would suffer the same fate. The judge observed that the abiding impression from the evidence of both parents “was of mutual incomprehension, of parents who had over the years become emotional strangers”, something that will resonate with many of those who have gone through the breakdown of a marriage, from any community.
The court heard evidence from a variety of sources, Rabbis and other members of the community who could explain the cultural context of the family. It had also asked the Anna Freud Centre, a children’s mental health charity, to compile a report, which took a therapist and a psychologist seven weeks to complete. They spoke to the father, the mother, the children – individually and together – and visited them at home, and met the mother’s sister. They also spoke by phone to the children’s teachers and the eldest boy’s counsellor. The children’s court-appointed litigation Guardian also prepared two reports.
What emerged was a picture of these children thriving despite missing their father, but also of a culture that is intolerant to any divergence from its core principles and traditions. The court heard about other children being ostracised from the community after their parents divorced, or even after being sexually abused – the explanation being that the community protects its children from anything considered a harmful influence, including knowledge of different experiences. This can extend to children not being accepted into schools, invited to social occasions, or allowed to play with their friends. The court observed that some of these practices may be illegal, but it did not mean they did not occur. Some evidence suggested that if the children were to have contact with their father, they would be likely to suffer the same fate. The psychologists also pointed out that it is entirely possible for children to adjust to a parent’s gender change, but in order to do so they benefit immensely from support, which would simply not be available within their cultural context.
The judge, Mr Justice Peter Jackson, noted his concerns over the clash between the ultra-Orthodox faith and transgender rights, saying: “It is painful to find these vulnerable groups in conflict.” He carefully weighed the many advantages to the children of contact with their parent with the disadvantages of disruption to their community ties, and also his concerns about the father’s dependability, as she had not always behaved appropriately. He also considered the fact that the parents were united in their wish to have the children brought up as part of the Charedi community.
The court decided, with “real regret, knowing the pain that it must cause”, that the father’s contact with each child must be limited to letters four times a year, suggesting that they could be sent to mark three Jewish religious holidays and each child’s birthday. The judge said that direct contact would put the children’s welfare at risk, by a real likelihood of them and their mother being cut off from their community, whether there was a court order in place forcing her to allow that contact or not.
The judgment records, “These children are caught between two apparently incompatible ways of living, led by tiny minorities within society at large. Both minorities enjoy the protection of the law: on the one hand the right of religious freedom, and on the other the right to equal treatment…. Sin is not valid legal currency. The currency of the law is the recognition, protection and balancing out of legal rights and obligations. In this case, to be recognised and respected as a transgender person is a right, as is the right to follow one’s religion.”
This is a truly heartbreaking judgment in an incredibly difficult case that shows the importance of a comprehensive and careful assessment of the welfare of the children when making decisions about their future. If you have any questions about this or any other aspect of family law, please give us a call on 01223 443333 and make an appointment to speak to Adam, Sue, Gail, Simon or Tricia.