Transgender parenting between separating couples
The impact of a transgender parent on the arrangement for children of separating couples is one which is occurring with increasing frequency. A recent case in the High Court has highlighted the issue.
The factual background
The parties had five children aged between two and 12. The parties separated when the father left home in 2015 to live as a transgender person. The children continued to live with the mother in a strongly Jewish community (the religious aspect was, unusually, very relevant in the case). No contact between father and the children had taken place since the separation.
The Jewish community, mother and the eldest child strongly opposed any contact taking place. The other children wanted to see their father.
The decision of the Judge
When the case came to court, the very experienced judge said that it was one of the most challenging cases with which he had had to deal. He was satisfied that the children would suffer what he described as “serious harm” if they were deprived of a relationship with their father. Similarly, it was likely that the mother and the children would be rejected by the Jewish community if direct contact took place.
The judge accepted that the ostracisation of the father by the Jewish community on account of his declared transgender status amounted to unlawful discrimination. However, given that that community would reject the mother and the children if there was contact, it was clear that, in this particular case, the consequences of the principles adopted by mother and the Jewish community resulting in that rejection were so great for the children (whose interests were the primary concern) that they prevailed over the advantages of contact with their father.
The judge ordered that there should only be indirect contact between the father and the children by way of letters and cards.
Appeal by the father in an attempt to overturn the judge’s order for no contact
The father did not accept the decision of the judge and sought permission to appeal that decision. The application for permission to appeal was granted.
The decision of the Court of Appeal - the core principles
The Court of appeal emphasised the following core points:
- The function of a judge is to stand in the position of the ”judicial reasonable parent”, assessing the welfare interests of children by the standards of the reasonable man or woman in this age, taking into account the changing nature of society and social attitudes
- The reasonable man or woman of today is receptive to change and is broad minded, tolerant, easy-going, and slow to condemn: the laws of our society require equal treatment of people and respect for their human rights
- Family life in the current age takes many forms
- Courts have a positive duty to attempt to promote contact and must consider all available and realistic alternatives
- To bar direct contact should only occur as a last resort and when it is clear that a child will not benefit from continued efforts
- In the interests of the children, the attitude of the mother and the community should have been challenged with a clear explanation of the potential consequences of their approach. The possibility of transferring the residence of the children from mother to father should have been examined.
- The best interests of all the children clearly involved their having more contact with their father.
It is interesting that the Court of Appeal decided that, whilst the law acknowledged that there is freedom to follow any religion, that freedom reaches its limits when it involves psychological harm to children. Further, whilst there is freedom of thought, conscience and religion, there is a justifiable distinction to be drawn between having thoughts (“internal beliefs”) and an external manifestation of those beliefs. However, those rights and freedoms can be restricted when that external manifestation infringes the rights and freedom of others (i.e. in this case, those of the children to have a relationship with their father).
Cases where there are such opposing views, based on strongly held principles and beliefs, are very difficult to resolve satisfactorily. One or other of the parties invariably feels aggrieved and that “justice has not been done”. In the absence of agreement between the parents (which is always the preferred route), the court has to navigate through the conflicting desires and arrive at a conclusion, with the best interests of the children as the paramount guiding requirement.
In the end, it is those primary welfare interests of each child, considered separately, which has to be determined. However the core principles of the proper approach to be taken, as set out above, will guide many cases in the future.