J v B (Ultra-Orthodox Judaism: Transgender)  EWFC 4 (30 January 2017) – read judgment
The Court of Appeal has granted permission to the father to appeal against the decision of the High Court earlier this year. Briefly, Peter Jackson J denied a father, who now lives as a transgender person, direct contact with his five children who live with their mother in the heart of a Charedi community of ultra-orthodox Jews.
The judge said that he had 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.
The appeal hearing, estimated to last one day, will take place on 15 November 2017.
Details of the High Court hearing
The case concerns five children, their parents and their community. The parents’ marriage ended in June 2015 when the father left home to live as a transgender person. She has since had no contact with the children due to the attitude of the North Manchester Charedi community.
In January 2016 the father applied for contact and the children were joined as parties. After hearing evidence from the parties and five witnesses in respect of Jewish law and customs, Peter Jackson ruled, with reluctance, that the application should dismissed.
The father’s case was that she should be sensitively reintroduced to the children, who should be helped to understand her new way of life and allowed to enjoy regular contact with her outside the community. The mother, who had been opposed to any contact, now accepted that the children should have limited contact with the father. But she claims any kind of direct contact would lead to the children and herself being ostracised by the community to the extent that they may have to leave it.
These circumstances gave rise, in the judge’s words, to an “exceptionally difficult welfare assessment”.
“Charedi” describes a number of groups within Orthodox Judaism characterised by strict adherence to Jewish law and distancing from modern secular culture. Members are sometimes referred to as Chassidic, strictly Orthodox or ultra-Orthodox. There are about 50,000 Charedim in the United Kingdom, mainly congregating in North London, North Manchester and Gateshead. Jewish law, derived from the first five books of the Bible, governs behaviour in the realms of food, dress, education, speech, communal responsibility, respect for elders, religious education, culture and heritage. Outwardly visible manifestations of the community’s observance include, for men, beards and long hair at the sides and the wearing of the kippah; and, for women, covering the hair in public, frequently by wearing a wig, and the wearing of modest dress. Access to television, to the mass media, and to the internet or social media is not permitted. Transgender is extremely alien to these communities and against religious law. According to rabbinical evidence before the court,
Knowledge of transgender amongst children in the Ultra-Orthodox Jewish community is almost non-existent, for the reasons mentioned above concerning their lack of access to Internet and the media. There is no known precedent in the UK of a transgender person being accepted living in an Ultra-Orthodox community.
The father, who suffered from gender dysphoria for years before she decided to leave the community, alleged that she fled the relationship and the community because the environment was oppressive, and from fear of the community reaction, extending even to threats towards her life. When she did leave she said that the children were told that she was in a mental hospital or had died. After leaving the father changed her name by deed and now lives as a woman. She has not yet undergone any gender reassignment surgery or hormone treatment. She continues to practise the main tenets of the Jewish faith.
Evidence was given by rabbis from both within and outside the community and by teachers from the children’s schools. The oldest child expressed conflicting feelings but said that he did not wish to see his father again until he was much older. The next two remembered their father with affection and wanted to see him, whereas the others were too young to have any clear memory of him. The Children’s Guardian and a child mental health expert recommended indirect contact only, having concluded by a narrow margin that the benefits to the children of resuming contact with their father would be outweighed by the harmful community reaction that the family would suffer.
The judge agreed with them.
Reasons behind the decision
The children were caught between two apparently incompatible ways of life, each led by a tiny minority within society at large. Both minorities enjoyed the protection of the law. Transgender persons were protected from discrimination by equality legislation and were given legal recognition. But equally, the community in which the children and their mother lived was protected by the right to religious freedom. It was not for the court to judge the way of life of either group, but to apply the law and identify the outcome that best upheld the children’s welfare, while minimising so far as possible the degree of interference with the rights of all family members.
There were many arguments in favour of direct contact, including
- giving the children and their father the lifelong benefits of an irreplaceable relationship;
- upholding the rights of the children and their father to respect for their family life;
- the father’s strong desire and the children’s underlying wishes for direct contact;
- upholding the father’s right not to be discriminated against as a transgender person;
- removing the potential harm to the children of finding that they had been separated from a loving parent by their community;
- removing the risk that the children’s sense of identity and self-worth would be affected by their father being treated as a “sinner”;
- confronting the issue while professional support was at hand; and
- giving the children some experience of the wider world.
The father had taken the responsible approach of accepting that the children should remain in the community and maintain their fully religious lifestyle. That was commendable commitment, particularly in the face of enormous personal challenges. However, direct contact would require a very high level of collaboration in circumstances where it was probable, on the evidence, that the children and their mother would be rejected by their community if the children were to have face-to-face contact with their father. Although it was likely that, with sensitive support, the children would be able to adapt to the changes in their father, there was no way in which they could escape the adult reaction to their enjoyment of direct contact. The gulf between the parents was too wide for the children to bridge and would put them under enormous strain. As Peter Jackson J observed, the mother was in as invidious a position as the father:
In common with the professional witnesses, I looked for signs of malice towards the father in the mother’s evidence, but could find none. Instead, the abiding impression from her evidence and from that of the father was of mutual incomprehension, of parents who had over the years become emotional strangers, and for whom the dramatic end to the marriage acted as a final severance.
Weighing up the profound consequences for the children’s welfare, the likelihood of the children and their mother being marginalised or excluded by their community was so real, and its consequences so great, that sole factor had to prevail over the many advantages that direct contact would bring. Indirect contact was therefore ordered four times a year for each child. In his concluding comments Peter Jackson J observed that this was a “bleak” outcome.
I do not consider that there is any real prospect of a court order bringing about a beneficial alteration in the attitude of the community towards this family, even to the extent of some relatively limited normalisation of approach. This must be a subject for regret, not only for this family, but also for others facing these issues in fundamentalist communities, for whom this will be a bleak conclusion. However, these considerations cannot deflect the court’s focus from the welfare of these five children.
He was at pains to stress that this outcome was not a failure to uphold transgender rights, still less a “win” for the community, but the upholding of the rights of the children to have the least harmful outcome in a situation not of their making.