A UK Court of Appeal Decision on the 20th of December 2017 has overturned a previous High Court decision which held that a transgender parent could not have direct contact with her ultra-orthodox Jewish children. The Court of Appeal found the High Court judge had failed to exhaust the court’s powers to attempt to make direct contact with the children. In considering the wide constellation of cultural and religious concerns the judge had lost sight of the paramount principle, which is the best interests of the children. It found the decision arrived at by the High Court was premature and failed to evaluate why indirect contact and the giving of narratives to the children about their father’s transgender status was in the children’s best interests and direct contact was not. The concluding remarks of the Court were: “As the law says in other contexts, ‘never say never’…the doors should not be closed at this early stage in their lives”. The appeal was allowed and the matter remitted to the family courts for reconsideration.
In light of the above the Court of Appeal did not give a final view on the issues of equality law which arose under the Equality Act and Article 9 (freedom of religion) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights (the ‘Convention’). It was critical of the High Court decision in this regard and noted there had been a failure to efficiently analyze relevant conventions or statutory provisions that address the human rights and discrimination issues of the case. It noted the judge’s core role is to act as a “judicial reasonable parent” and explore all alternatives and avoid any premature decisions.
By way of factual background the applicant known a ‘J’ had left her ultra-Orthodox Jewish community in the North Manchester Charadi Community to transition to a woman in 2015. ‘J’ had no contact with her children since 2015. Both parents concluded it would be in the children’s best interests to remain within the community. The disagreement arose out of the level and type of contact the father of the children should have after transitioning and leaving the Charadi community. The High Court found that it would be highly probable that the children and their mother would be ostracized by their community should they engage in direct contact with their transgender parent. In light of this the request for direct contact was denied.
On appeal while it was found this was a factor to be considered, it was fundamental to place the children’s best interest at the heart of the inquiry. In doing so it was important to consider issues of equality. Equality of opportunity is a fundamental principle of society. Determining the welfare of a minor is concerned with the child’s development with due regard to the “ever changing nature of our world” and that the law must keep pace with these societal changes. When approaching the religious element of the case the Court considered the common law principle of respect and tolerance for an individual’s religious beliefs. While the court notes that some manifestations of religious practices may be regulated if contrary to the child’s welfare this was not a factor in the present case.
In addressing the issue of conflicting rights the Court of Appeal in its concluding observations drew attention to the fact that under section 6 of the Human Rights Act, the duty to act compatibly with Convention rights applies to courts and tribunals as well as other public authorities. It was noted: “When the present case returns to the family court..the court will wish to scrutinize with care the suggested justification for the apparent discrimination which the father faces on the ground of her transgender status, not least to ensure that that the Court itself does not breach its duty under section 6 of the Human Rights Act”.
For further commentary on the case please click here.
For a copy of the judgement please click here.