The Court has recently recorded a forward thinking decision in the case of a transgender woman. Both Stonewall Equality Limited and Keshet Diversity UK Limited were interveners and filed written submissions to the Court of Appeal during the hearing.  The case was further complicated as the transgender woman came from an ultra orthodox Judaic background.

Throughout we shall use the female pronoun for the transgender Appellant (father to the children in the case).

The father now a transgender woman, known as “J”, left her wife and the ultra orthodox Judaic community in which they lived to start a new life as a woman.

From the date of the separation “J” was given no contact at all with her 5 children.

“J” believes herself to be the first transgender person to leave an ultra orthodox Haredi community in the UK.

“J” had indicated that she would agree to any conditions on contact in order to see her children even reverting during contact to her previous male appearance as far as she was able in order to make the situation easier for the children.

In a judgement by the High Court at the first hearing, Mr Justice Peter Jackson in 2017 said that he rejected “the bald proposition that seeing the father would be too much for the children. Children are goodhearted and adaptable and given the sensitive support, I am sure that these children could adapt considerably to the changes in their father.  The truth is that for the children to see their father would be too much for the adults”.

Despite the above Mr Justice Peter Jackson concluded in his judgement as follows:-

So weighing up the profound consequences for the children’s welfare of ordering or not ordering direct contact with their father, I have reached the unwelcomed 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. I therefore conclude with real regret, knowing the pain that it must cause that the father’s application for direct contact must be refused.  I will instead make an order for indirect contact”.

The indirect contact by letter was ordered by the Judge for only 4 times per year.

The transgender woman “J” appealed to the Court of Appeal against the ruling. Her grounds for the appeal were:-

i.    In his careful survey of the wide constellation of cultural and religious concerns the Judge ultimately lost sight of the paramountcy  principle. 

ii.    The Judge failed to evaluate why indirect contact and the giving of narratives to the children about their father’s transgender status was in the children’s best interests and direct contact was not.

 iii.    The Judge failed to exhaust the Court’s powers to attempt to make direct contact work. 

The Court of Appeal carefully considered both the transgender woman’s position and the position of the mother of the children. The Court reiterated the main criteria at the heart of any case before the Court involving children that Section 1(1) (a) of the Children Act 1989 prevails that the children’s welfare is the Court’s paramount consideration. “

 The Court went on to expand by referring to previous case law on the issue of welfare stating that the task of the Judge is to “act as the judicial reasonable parent”.  Further that the welfare “must be judged today by the standards of reasonable men and women in 2017 not by the standards of their parents, grandparents or great grandparents in 1989, 1971, 1925 or 1902. And fundamental to this there is the need to have regard to the ever changing nature of our world; changes in our understanding of the natural world, technological changes, changes in social standards and, crucially for present purposes, changes in social attitudes.” 

The Court of Appeal considered that this last point was very significant because of the many changes in society which have taken place over recent years. The Court of Appeal said “it is essential that our law – our family law in particular – keeps pace, as it does, with the societal realities….. The fact is, as the daily business of the family division so vividly demonstrates, that we live today in a world where the family takes many forms and where surrogacy, IVF, same sex relationships, same sex marriage and transgenderism, for example, are no longer treated as they were in even the quite recent past”.

The Court of Appeal quoted from case law again as follows “we live, or strive to live, in a tolerant society, increasingly alive to the need to guard against the tyranny which majority opinion may oppose on those who, for whatever reason, comprise as small, weak, unpopular or voiceless minority”. 

 The Court of Appeal then extracted 2 core principles as follows:-

First core principle

The first core principle is that the function of the Judge is to act as “judicial reasonable parent” and that wealth should be considered by the standards of reasonable men and women of 2017 and taking into account the fact that the nature of society is changing all the time and stated as follows “we live in a plural society in which the family takes may forms, some of which would have been thought inconceivable well within living memory”.  

Second core principle

The Court stated that there is a positive duty upon the Judge “to attempt to promote contact; that the Judge must grapple with all of the available alternatives before abandoning hope of achieving some contact; that the Judge must be careful not to commit to a premature decision; and that contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt”.

The Court of Appeal granted “J’s” appeal. The Court of Appeal stated that “how can this 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?”.

The Court of Appeal also stated and explored the issue of human rights and discrimination. Stonewall Equality Limited and Keshet Diversity UK Limited both intervened and filed written submissions and considered that this issue had not been properly explored sufficiently in the original proceedings.

The Court of Appeal also considered that the Judge, as submitted by the father’s representatives, “gave up too easily” and “decided the question of direct contact then and there and without directing even a single attempt to try and make it work”.

The Court of Appeal therefore decided that “J” had made out all 3 of her grounds of appeal.

The Court of Appeal therefore granted the appeal and referred the matter back to the Family Court to a different Judge for the issue to be reheard.

Finally, the Court of Appeal added:

in our judgement 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, with respect to the learned Judge, persevere.  As the law says in other contexts  ‘ never say never’.  To repeat the door should not be closed at this early stage in their lives.

If you are affected by this or to request more information or advice, please contact specialist family solicitors, Pam Arrowsmith or Jasdeep Nagra on 0121 227 3850 or parrowsmith@thursfields.co.uk or jnagra@thursfields.co.uk

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