Disputes concerning transgender parents

All children have a right to a relationship with both (or all) their parents. The law is no different if a parent identifies as transgender (or identifies otherwise but there is a context of gender identity issues), but there is sometimes confusion about this if parents separate and cannot agree who the children live with and spend time with. This is particularly important against the backdrop of case of Re M (2017) where a transgender Jewish woman was initially denied any direct contact with her five children, but subsequently won a Court of Appeal ruling that too much weight had been placed on the deeply discriminatory practices within the mother’s and children’s community and that the children’s right to a relationship with their father should not be ruled out simply due to potential prejudice against her as a transgender parent.

In the context of a parental gender identity issue, the family court will approach an application by a parent who wants to spend time with their child (or live with them) as they would any other application for a child arrangements order. The child’s welfare is always the court‘s paramount consideration, assessed within the framework of the ‘welfare checklist’ as set out in the Children Act 1989. The checklist is:

·         The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)

·         Their physical, emotional and educational needs

·         The likely effect on them of any change in their circumstances

·         Their age, sex, background and any characteristics that the court considers relevant

·         Any harm which they have suffered or are at risk of suffering

·         How capable each of their parents and any other person in relation to whom the court considers the question to be relevant is of meeting the child’s needs

·         The range of powers available to the court under the Children Act.

Despite the decision in the Re M case, which was determined upon its very particular facts (involving unusual issues of potential ostracism by a religious community), any parent  should take confidence in the fact that the court is solely concerned with the welfare of the child and absolutely no other issue. The child’s welfare will be determined by the standards of a ‘reasonable man or woman, being receptive to change, broadminded, tolerant, easy going and slow to condemn’. The child’s welfare also has a broad definition encompassing welfare at the time of any decision and throughout the child’s minority. The court will also be mindful of the Equality Act and the European Convention on Human Rights. If it is in the child’s interests that they see their parent then that will determine the outcome, irrespective of the parent's gender identity. There should be no exceptional considerations or additional hurdles for transgender or gender non-conforming parents. The personal circumstances of the parent, their own identity, transitioning journey and any negativity or prejudice from the other parent is not relevant to the application other than how it feeds into the welfare checklist. In making any application a parent who is concerned about the impact of gender identity issues should confidently proceed in the knowledge that they will be treated by the law as any other separated parent and that the court will do all it can to find solutions in even the most seemingly intractable cases.

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