High Court decision refusing ultra-Orthodox transgender father access to children quashed — Paul Erdunast

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Re M (Children) [2017] 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.

 

Facts

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).

 

Family law

 The Court of Appeal considered that two principles of family law were decisive of the case:

  1. 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) [2006] 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. [60]

 

  1. 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.” [66]

 

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? [77]

 

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 [2000] 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. [35]

 

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.

8 thoughts on “High Court decision refusing ultra-Orthodox transgender father access to children quashed — Paul Erdunast

  1. Reblogged this on | truthaholics and commented:
    “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? [77]”

  2. I don’t like these cults at all. But the judge who hears it is going to have to keep his or her feet squarely on the ground. It’s one thing to say that the court must not be driven from doing the right thing for fear of unlawful discrimination by the school: quite another to say the same thing about “the community” because if other parents keep their children away from the children concerned here so that they don’t “hear things” that may be narrow-minded and nasty – like the cult itself – but it’s not unlawful and it will probably happen. I can see the same result being reached in different words.

  3. What about the rights of the child not to be exposed to the irrational belief of the biological father that he has “changed sex”, which is biologically impossible, and to object to having Transgender ideology foisted on him? The UN Convention on the Rights of the Child includes (Article 3) giving “top priority” to the “best interests of the child” and Article 8 (protection and preservation of identity) which refers to the cultural identity of the child and Article 13 (freedom of expression) which could refer to the freedom to express thoughts and opinions which contradict gender identity ideology.

    The distinction of “legal gender” from “biological sex” are lost on young children (and on many adults!)

    Anyone with any experience of the behaviour of transsexuals in family relationships would understand what follows, which is the product of my own experience.

    This is a tragic situation. The youngest children are less than 10 years old. They are in grave danger of serious emotional confusion (insanity) if they continue to love and respect the views of the deluded and diminished person inside the body of their biological father. If they are forced to see their “father” against the mother’s will there can only be detriment to all the children. The older ones will try to guide the younger ones in conformity with the mother’s (and most normal people’s!) view. The youngest ones could be very torn and suffer great turmoil. Most likely they will soon refuse to see the “father”, but this could rebound against the mother, who is the only person holding the family together.

    Why is it that the law does not recognise when a mad parent can cause destruction to his own children? His presence can only hurt them. Tragic, but true.

    I managed to keep my children away from my transsexual ex-husband for 3-4 years (youngest was 10 years old when he left us) until they realised just how deluded s/he was.

    The law needs changing (1) to recognise that “gender ideology” has no scientific basis and thus there is no “gender identity” independent of the body in which it is supposed to reside, and (2) children need to be protected from a mad parent.

  4. I was sure this would get overturned when the original decision was made. In particular, in essence capitulating to a community demanding the right to discriminate.

  5. Mike Hersee: “….capitulating to a community demanding the right to discriminate”.
    I agree that the reasons given by the High Court judge were too narrow.

    But his decision to leave the children with the mother and allow the biological father only written contact is the correct one.

    There are so many competing “protected characteristics” and “rights of the child” that it is going to take a very fundamental judgement in the Supreme Court to address them all and provide a convincing analysis of their interaction. These legal principles must acknowledge the real circumstances, the close-knit community from which the mother and the children currently draw their strength and uphold their values, and these must be given proper weight. They are not, in their own eyes, a “cult”. I am an atheist.

    UK family law upholds the rights of the child above all other concerned parties, who are the mother, the biological father who is not competent as a parent – I have experience in this situation, and the religious community. I submit that the children have the most important right not to be indoctrinated with a belief called “gender identity” ideology which is destructive of the fundamental basis of family life, destructive of reason and scientific understanding. The Supreme Court judges must find a way to give effect to the common sense right of the children NOT to believe the biological father’s nonsensical belief, above the rights of all other parties.

  6. From the Torah….. Real Jews consider it to be the words of God…..
    Devarim 23:1
    “No one whose testicles are crushed or whose male organ is cut off shall enter the assembly of the LORD.
    Devarim 22:5 A man’s attire shall not be on a woman, nor may a man wear a woman’s garment because whoever does these [things] is an abomination to the Lord, your God. הלֹא־ יִֽהְיֶ֤ה …
    Cross dressing is punished by death and it is forbidden to have an abomination in your dwelling.

    “Here’s your Christmas present, Pee Wee!”

    “It’s not a fruitcake…. Is it?

    “No…. IT’S TWO FRUITCAKES!!!!”

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