The factual background is fully set out in the High Court Judgement of Mr Justice Peter Jackson. The parents and their five children, aged between 2 and 12, are all from the ultra-Orthodox Charedi Jewish community of North Manchester. The marriage of the couple ended when the father decided to leave the community and live as a transgender woman in June 2015. However, both parents agreed that the children should be brought up within the community and so the mother and the children remained there. The father brought an application for direct contact with her five children in 2015. There was much to suggest that the community would ostracise the mother and the children on the basis that they would be exposed to outside influences contrary to the Torah. One the other hand, 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. Although critical of the community and their attitudes, Mr Justice Peter Jackson, with considerable regret, ultimately determined that the risk of psychological harm posed to the children by having direct contact with their father was too great, on the basis that they, as well as their mother, would be ostracised by the Ultra-Orthodox Charedi community and the consequences of such gravity that they outweighed the advantages of contact. Despite setting out fifteen formidable reasons in favour of direct contact, he ultimately concluded that the likelihood of the children being marginalised or excluded by a community the parents agreed they should remain a part of, was such that only indirect contact was in their best interests, she should only have indirect contact with her children through letters sent four times per year. The transgender parent appealed the case and Stonewall and Keshet Diversity UK joined the case as interveners. The Court of Appeal disagreed in a 138-paragraph judgment which includes a thorough analysis of the Family Court's duties under the Human Rights Act 1998, and the best interests of children in the face of discrimination and intransigence from a parent or third party. The matter has now been remitted to the High Court for further consideration. The following essay will attempt to explain my views on the judgement on this case, whether or not I think it is correctly reasoned.
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 refused direct contact, which would be final and conclusive as to the relationship which the children would have with their father, was considered premature. Sir James Munby P’s judgement is stated in 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.” I agree with his judgement because Justice Peter Jackson has given me an impression that he hasn’t attempted to make this work and as Rabbi Abel, someone who has been living within the community stated that the community would not fight an unwinnable battle if direct contact was ordered.
The Court of Appeal mainly considered two principles of family law which are ‘a family judge must judge the child’s welfare by the standards of the ‘reasonable parent’’ and ‘a family judge has a positive duty to promote contact and must grapple with all the available alternatives to achieve this’. The qualities of a ‘reasonable parent’ were described Court of Appeal in Re G (Residence: Same-Sex Partner) [2006] EWCA Civ 372, which the court in the present case drew upon, which stated that “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.” 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: transferring residence from one parent to the other; making the child a ward of court; 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.”
The key questions which the Court of Appeal felt that Peter Jackson J failed to ask himself include, “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? How can this outcome meet even the medium let alone the long-term needs and interests of the children?” 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. 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 could be considered in this case. However, 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.
Moreover, Article 14 of the Human Rights Act has to be taken into consideration to the decision of this case. Article 14 is the prohibition of discrimination, which gives the enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Therefore, transgender status is protected by Article 14 and the Court of Appeal noted that as the subject matter of the case fell within the extent of Article 8, which is respect for your private and 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.
Furthermore, Article 9 of the Human Rights Act could be considered. The 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.
The case was sent back to the Family Court for reconsideration by the Court of Appeal to decide 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 democratic society.