Court of Appeal rules in favour of transgender parent previously denied any contact with her children

NGA_Stock_197The Court of Appeal yesterday overturned a High Court decision that a transgender woman whose children were being raised in an ultra-orthodox Jewish community should have no direct contact with them. In an undoubtedly unusual and difficult case, Mr Justice Jackson had previously ruled that J, the children’s father, should have no direct contact with her five children, then aged between 2 and 12, after she left the ultra-orthodox Charedi community in which the children were being raised in order to live as a woman. The judge accepted evidence that the children might be ostracised from their community, and said that it was in their best interests to have no direct contact with their father.

However, the Court of Appeal yesterday overturned that ruling, finding that the judge had failed to consider how radical it was to deny any direct contact with a loving parent for no reason other than her transgender status, and that he had failed to tackle head on the human rights and discrimination issues in the case. Religious freedom did not give the community in which the children lived an unfettered hand to act unlawfully or to cause harm to the children by alienating them from their father. The welfare of the children was the court’s paramount consideration and the judge had lost sight of that. The Court of Appeal said “there was considerable substance in the complaint that the judge ‘gave up too easily’ and decided the question of direct contact then and there without directing even a single attempt to try and make it work”. Leading LGBT charity Stonewall made written submissions, as did Keshet Diversity UK, a Jewish LGBT charity able to assist the court with how contact could be managed in practice.

As a result of the Court of Appeal’s ruling, J’s application for contact will be reconsidered by a different High Court judge with a view to reinstating her contact with her children if possible, in a child-focused way.

The decision also represents an important ruling of principle for LGBT parents, that children’s right to a relationship with parents who are LGBT must be protected even if other adults involved in the children’s life perceive the parent’s lifestyle as ‘unconventional’. As the Court of Appeal said very clearly:

‘Society has changed, is changing and will no doubt continue to change at a quite remarkable rate, and it is essential that our law – our family law in particular – keeps pace, as it does, with these societal realities. The fact is, as the daily business of the Family Division so vividly demonstrates, that we live today in a world where the family takes many forms and where surrogacy, IVF, same-sex relationships, same-sex marriage and transgenderism, for example, are no longer treated as they were in even the quite recent past…

‘It would be open to a court to make an order [for contact], even if its implementation does not fully respect the religious beliefs, practices and observances of the community of which the children are members, if those beliefs, practices and observance were found not to be consistent with the values of the democratic society in this jurisdiction. Even secluded religious communities within a society are not above the law of the land.’

For more information about transgender parenting and the law, explore our Knowledge Centre.

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