The mother and the five children lived in an ultra-orthodox Charedi Jewish community (the community). The father was transgender and had left the family home to live as a transgender person. She now lived as a woman. As she was transgender – and for that reason alone – the father was shunned by the community, and because she was transgender – and for that reason alone – the children faced ostracism by the community if they had direct contact with her.
Cour of Appeal, Civil Division
Sir James Munby P, Arden and Singh LJJ
20 December 2017
Family proceedings – Orders in family proceedings – Contact orders –
The judge dismissed the father’s application for direct contact with the five children. The order, however, contained a child arrangements order providing for limited indirect contact, a specific issue order directing that the children were to be provided with ‘staged narratives’ in age-appropriate terms, and a temporary family assistance order under s 16 of the Children Act 1989, naming the children’s guardian as the relevant officer. The father appealed. Stonewall Equality Ltd (Stonewall) and Keshet Diversity UK (KeshetUK) were given permission to intervene in the appeal.
Issues and decisions
(1) Whether the judge, in his careful survey of the wide constellation of cultural and religious concerns, ultimately lost sight of the paramountcy principle.
The function of the judge, in a case like the present, was to act as the ‘judicial reasonable parent’, judging the child’s welfare by the standards of reasonable men and women today, having regard to the ever changing nature of the world including, crucially for present purposes, changes in social attitudes, and always remembering that the reasonable man or woman was receptive to change, broad-minded, tolerant, easy-going and slow to condemn (see  of the judgment).
In the present case, had the judge been acting as the ‘judicial reasonable parent’ and adopting the reasonable parent’s broad-minded and tolerant approach, it was difficult to see how he was nonetheless driven to a conclusion dictated by the practices of a community which he characterised as involving discrimination and victimisation. The implication of the judgment below was that the more enmeshed a child was in a narrow and constricting way of life, and the more intransigent the adults were in seeking to protect the child from what the adults saw as the undesirable aspects of any other way of life, the more hamstrung the court would be, the less it would feel able to intervene to further what would otherwise be seen as plainly required in the child’s best interests (see ,  of the judgment).
That was not the approach of courts where religion was not in play. Where an intransigent parent was fostering in their child a damaging view of the other parent, and thereby alienating the child from the other parent and denying contact between them, the court had not hesitated to invoke robust methods where that had been required in the child’s interests. That approach was not to be any different merely because religious belief, practice or observance were in play (see ,  of the judgment).
The judge, having arrived at the conclusion that the gulf between the parents – the mother within the ultra-Orthodox community and the father as a transgender person – was too wide for the children to bridge had not at that point stepped back and tested that conclusion against the standards of reasonable men and women today and the children’s or child welfare. The judge’s omission to test his conclusion seriously undermined indeed vitiated, his ultimate conclusion (see  of the judgment).
Q (A Child), Re  All ER (D) 136 (Sep) considered; G (children) (education: religious upbringing), Re  All ER (D) 50 (Oct) considered; W (children) (contact order), Re  All ER (D) 297 (Jul) considered; C (a child) (suspension of contact), Re  All ER (D) 38 (May) considered; G (children) (residence: same-sex partner), Re  All ER (D) 71 (Apr) considered; J v C  1 All ER 788 considered; R v Ireland, R v Burstow  4 All ER 225 considered.
(2) Whether the judge had 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.
The judge had a positive duty to attempt to promote contact and to grapple with all the available alternatives before abandoning hope of achieving some contact. A judge would be expected not to come to a premature decision and contact was to be stopped only as a last resort and only once it had become clear that the child would not benefit from continuing the attempt (see  of the judgment).
There was much force in the argument that the judge had not sufficiently explained why, given the basis of the mother’s and the community’s objection to direct contact, it was nonetheless feasible to contemplate indirect contact. That point was not however an argument against indirect contact; on the contrary, it was, perhaps, an argument in favour of direct contact (see  of the judgment).
(3) Whether the judge had failed to exhaust the court’s powers to attempt to make direct contact work.
The decision to which the judge had come was premature. There was considerable substance in the complaint that the judge had given up too easily and had decided the question of direct contact then and there and without directing even a single attempt to try and make it work. The judge had recognised, by making the specific issue order and directing preparation of ‘staged narratives’, that there was further work to be done and could have deferred a final decision on direct contact pending the outcome of that, and perhaps further, work, including work by the GesherEU Support Network about which the judge had heard evidence. Moreover, why not first directly and explicitly challenge the parents and the community with the possibility that, absent a real change of attitude on their part, the court might have to consider the drastic steps (see  of the judgment).
The appeal would be allowed and the case remitted to the family court for reconsideration.
(4) Whether and to what extent issues under the Equality Act 2010 were relevant.
When the case returned to the family court, the Court of Appeal would expect the judge to consider very carefully whether there would in fact be unlawful conduct even in the face of an order of the court granting the father direct contact with her children; and to what extent such unlawful conduct should be given weight in the balance to be conducted in assessing what were the best interests of those children (see - of the judgment)
(5) Whether and to what extent art 14 of the European Convention on Human Rights was relevant.
In the present case, the judge had correctly reminded himself of two fundamental points of law. First, the court itself was a ‘public authority’ within the meaning of s 6(3)(a) of the Human Rights Act 1998 (HRA 1998). Accordingly, the court itself was under a duty to act in a way which was compatible with the Convention rights. Secondly, one of the Convention rights was the right to enjoy Convention rights without discrimination in art 14.
When the present case returned to the family court, the court would wish to scrutinise with care the suggested justification for the apparent discrimination, which the father faced on the ground of her transgender status, not least to ensure that the court itself had not breached its duty under HRA 1998 s 6 (see - of the judgment).
(6) Whether and to what extent art 9 of the Convention was relevant to the court’s determination.
There was force in the submission that the community’s beliefs, which resulted in the ready exclusion of young children from the rest of the community, had not met the criteria set by the Strasbourg court for a religious belief that was entitled to protection under art 9 of the Convention.
It was not appropriate to give a final answer to the question however, if a court were to make an order granting the father some form of direct contact to the children, it would have to have concluded, after the most careful consideration with the parties, that that course was in the best interests of the children. If that involved any interference with any rights of the community to manifest their religious beliefs, it would be doubtful that there would be any violation of the community’s rights under art 9 of the Convention. That was because the court, as an organ of the State, would on that basis have decided that a restriction that might be involved of their right to express their religious beliefs served the legitimate aim of protecting the children’s rights to have contact with their father and thus to enjoy family life with him, which rights were vital to their well-being (see , , ,  of the judgment).
Decision of Peter Jackson J  All ER (D) 108 (Jan) Reversed.
Alison Ball QC and Hassan Khan (instructed by Dawson Cornwell) for the appellant father.
Peter Buckley (instructed by Steinbergs Solicitors) for the respondent mother.
Frances Heaton QC and Jane Walker (instructed by Alfred Newton Solicitors) for the children’s guardian.
Karon Monaghan QC and Sarah Hannett (instructed by Baker & McKenzie LLP) filed written submissions on behalf of the first intervener Stonewall Equality Limited.
Jane Rayson and Andrew Powell (instructed by A City Law Firm) filed written submissions on behalf of the second intervener Keshet Diversity UK.
Tara Psaila Barrister.
The appellant transgender father’s appeal against a refusal for direct contact with his five children who belonged to the Charedi Jewish community would be allowed and remitted for reconsideration. The Court of Appeal, Civil Divisions found that the judge had failed to test his factual conclusion against family law principles.