Judge hearing the matter must act as a ‘judicially reasonable parent’
The Court of Appeal has handed down judgment in a case that brings to the fore the tension between, what it termed, deeply discriminatory practices in isolated communities and the broadminded outlook of the modern world. Firmly rejecting any notion that discrimination should prevail and children be denied a relationship with their father, the Court of Appeal described this matter as a “stark, deeply saddening and extremely disturbing” case which potentially has “profound significance for the law in general, and family law in particular”.
In Re M (Children)  EWCA Civ 2164 the father, a transgender woman, brought an application for contact with her five children after being forced to leave the North Manchester Charedi Ultra-Orthodox Jewish community in 2015. She was shunned as a result of her trans status, and there was a concern that her children would be too if they remained in contact with her.
Although critical of the Charedi Community, the judge at first instance, Mr Justice Peter Jackson, decided in February 2017 – cited as J v B (Ultra-Orthodox Judaism: Transgender)  EWFC 4,  WLR(D) 142– that the community’s threat to ostracise the children posed such a risk of psychological harm to them that they should be limited to receiving letters from her, four times a year.
As the Court of Appeal mused at the outset of its judgment: “We suspect many reading this will find the outcome both surprising and disturbing, thinking to themselves, and we can understand why, how can this be so, how can this be right?”
The Court of Appeal’s decision
Comprising of The President of the Family Division, Sir James Munby, Lady Justice Arden and Lord Justice Singh, the Court of Appeal disagreed with Mr Justice Peter Jackson’s ruling in a 138-paragraph, joint judgment which serves as a stark reminder that discriminatory behaviour cannot and will not be tolerated in the Family Court, and the judges hearing these cases must persevere in their attempts to make contact happen, even when faced with such intransigence and hostility.
In overturning Mr Justice Peter Jackson’s decision and remitting the matter back to the High Court for further consideration, the Court of Appeal said as follows:
- When parents cannot agree and make an application to the Family Court, the judge hearing the matter must act as a “judicially reasonable parent” judging the child’s welfare by the standards of reasonable men and women of today in 2017, that is people who are “receptive to change, broadminded, tolerant, easy-going and slow to condemn.” In the present case, the judge should have asked himself a number of pertinent questions before reaching his decision, including “How can the 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 judge did not address ‘head on’ the human rights and discrimination issues that arose, and especially, that: “Even secluded religious communities within society are not above the law of the land.”
- In making a final order for letter-contact only, the judge “gave up too easily” on making direct contact work, his decision being described as “premature”.
Concluding, the Court of Appeal held:
“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 persevere. As the law says in other contexts “never say never”. The doors should not be closed at this early stage in their lives.”
Commenting on the decision, the legal team acting for the father, Alison Ball QC of 1 Garden Court Family Law Chambers, Hassan Khan of 4 Paper Buildings, instructed by Colin Rogerson and Anne-Marie Hutchinson OBE QC (Hon) of Dawson Cornwell said:
“This decision is one that will be welcomed not just by LGBT individuals living within small religious groups, but by the LGBT community in general. It sends a clear message that no religious community can operate on their own island but must conform to the law of the land. We are grateful to Stonewall Equality Limited and Keshet Diversity UK for their interest and input in this case.”