High Court decision refusing ultra-Orthodox transgender father access to children quashed — Paul Erdunast
22 December 2017
Re M (Children)  EWCA Civ 2164, 20 December 2017, read judgment
The Court of Appeal reversed the judgment of the High Court that a transgender father from the ultra-Orthodox Jewish community should not have direct contact with her children. The case was remitted to the Family Court for reconsideration.
The factual background is fully set out in the High Court judgment of Peter Jackson J (as he then was). The parents and their five children are all from the ultra-Orthodox Charedi Jewish community of North Manchester. The mother and children remain there, while the father no longer lives within the community after leaving in June 2015 to live as a transgender woman. Both parents agree that the children should be brought up within the community.
The father applied to be allowed to have direct contact with her children. The evidence as to what the reaction of the community would be was mixed. There was much to suggest that the community would ostracise the mother and children on the basis that they would be exposed to outside influences contrary to the Torah. By contrast, Rabbi Abel, who grew up in the North Manchester Charedi community and has experience of several communities, suggested that this community was not monolithic but somewhat diverse, and that it would not fight an unwinnable battle if direct contact were ordered.
Peter Jackson J decided, with considerable regret, that the risk of ostracism of the children and their mother was so likely and the consequences of such gravity that they outweighed the advantages of contact.
Decision of the Court of Appeal
The Court of Appeal decided the case in favour of the father solely on principles of family law. The decision by the High Court to refuse direct contact, which would be final and conclusive as to the relationship which the children would have with their father, was deemed premature. Giving the judgment of the court, Sir James Munby P stated as follows at paragraph 80:
… we think there is considerable substance in the complaint that, as Ms Ball puts it, the judge “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 set out governing principles under which the case should be reconsidered by the Family Court. It then gave some helpful guidance on the relevance and impact of equality law and human rights law: the Equality Act 2010 (prohibition of discrimination against people with protected characteristics, which include transgender people), Article 14 ECHR (prohibition of discrimination in the enjoyment of convention rights) and Article 9 ECHR (freedom of thought, conscience and religion).
The Court of Appeal considered that two principles of family law were decisive of the case:
- A family judge must judge the child’s welfare by the standards of the ‘reasonable parent’:
The attributes of this ‘reasonable parent’ were described by the Court of Appeal in Re G (Residence: Same-Sex Partner)  EWCA Civ 372, which the court in the present case drew upon, stating as follows:
The reasonable man or woman is receptive to change, broadminded, tolerant, easy-going and slow to condemn. We live, or strive to live, in a tolerant society. We live in a democratic society subject to the rule of law. We live in a society whose law requires people to be treated equally and where their human rights are respected. We live in a plural society, in which the family takes many forms, some of which would have been thought inconceivable well within living memory. 
- A family judge has a positive duty to promote contact and must grapple with all the available alternatives to achieve this:
The Court of Appeal compared the court’s powers where religion is not in play. In circumstances where one parent fosters a damaging view of the other parent in their children, the court must be robust in defending the child’s best interests, which are treated as paramount. Powers can be drastic, including: (a) transferring residence from one parent to the other; (b) making the child a ward of court; (c) making an order under s.37 of the Children Act 1989 for a report from the local authority with a view to taking the child into care.
The Court of Appeal asked itself: “Is the approach, should the approach be, any different merely because religious belief, practice or observance is in play? The answer in essence must be: No.” 
The key questions which the Court of Appeal felt that Peter Jackson J failed to ask himself included:
Should I not directly and explicitly challenge the parents and the community with the possibility that, absent a real change of attitude on their part, the court may have to consider drastic steps such as removing the children from the mother’s care, making the children wards of court or even removing the children into public care? Should I not directly and explicitly confront the mother and the community, which professes to be law abiding, with the fact that its behaviour is or may be unlawfully discriminatory? And, not least, how can this outcome meet even the medium let alone the long-term needs and interests of the children? 
The Court of Appeal nonetheless stated also that careful consideration should be given as to whether any such order would violate the rights of the community under the ECHR.
The key point was that courts should not be driven to unwelcome conclusions dictated by the intransigent practices of communities, such that the more intolerant the community is, the less the court feels able to intervene. [62-63]
The Court of Appeal could have ended its decision here. However, it then helpfully outlined the questions of equality and human rights law which may become factors in the substantive family court proceedings, and how these should be approached.
Equality Act 2010
The Court of Appeal noted that the concepts ‘discrimination’ and ‘victimisation’ under the Equality Act 2010 have specific legal meanings which must not be confused with their everyday meanings. Furthermore, the Equality Act operates only in certain circumstances: for instance, it cannot apply to “the community” as a single entity.
The Court of Appeal considered that the schools which the children attended would potentially act in breach of the Equality Act if they were to discriminate against the children due to their father’s status. Importantly, however, the prospect of such discrimination must not be treated by the Family Court as a factor weighing against direct contact, since this would run contrary to the rule of law.
Article 14 ECHR – prohibition of discrimination relating to Convention rights
Transgender status is protected by Article 14 and the Court of Appeal noted that as the subject matter of the case fell within the ambit of Article 8 (family life), Article 14 could be engaged without the need to demonstrate an actual breach of Article 8.
Article 14 does not convey an absolute right not to be discriminated against: discrimination may be justified. However, what must be justified is not merely the underlying measure in pursuance of which the discrimination occurs: rather, the discrimination itself must be justified by objective reasons.
The Court of Appeal made the crucial point that such objective reasons do not include subjective, negative attitudes of others – a point which the European Court of Human Rights made in relation to the ban on homosexuality in the UK armed forces (Lustig-Prean v United Kingdom  29 EHRR 548).
It therefore suggested that the Family Court carefully scrutinise any purported justification for discrimination which the father may face on account of her transgender status.
Article 9 ECHR: freedom of thought, conscience and religion
The Court of Appeal doubted whether a decision granting the father direct contact with the children would breach the mother’s, children’s, or community’s rights under Article 9 even if it amounted to an interference to their rights to manifest their religious beliefs. This is because the decision would be made in the best interests of the children and so serve the legitimate aim of protecting the children’s rights to have contact and family life with their father. The Court of Appeal stated:
In making that decision [direct contact with the children], the restriction under consideration would meet the requirements of being prescribed by law. It is part of the court’s jurisdiction to make orders regulating parents’ access to their children. It would be proportionate because it would not be made immediately on the father’s application, but only after a period of further reflection in which the court has had time to consider further evidence if it wished so to do. 
With this guidance, the Court of Appeal sent the case back to the Family Court for reconsideration. If Peter Jackson J’s initial decision was humane but saddening, the Court of Appeal’s judgment represents a muscular assertion of the value of tolerance in a modern-day democratic society.
Paul Erdunast is a student on the Bar Professional Training Course and a regular contributor to Free Movement.