An appeals court in London has overturned a previous judgment that restricted a transgender woman to severely limited contact with her five children.
The woman was originally a member of the North Manchester Charedi Ultra-Orthodox Jewish community. She separated from her wife and then began to transition in 2015. At this stage, she was shunned by the community in which she lived.
Due to fears that her children would also be ostracized if she continued to maintain contact with them, a judge, Mr Justice Peter Jackson, ruled in February 2017, that she should only be allowed to write to her kids four times a year.
He said the children might suffer psychological harm if they were to be similarly shunned.
The woman, who continues to identify as father to her children, has not been named in court documents. The children, aged 3 to 13 years, are not currently aware of their father’s trans status.
Since the original February ruling, the woman has been fighting the judgment.
Today, the Court of Appeal overturned the decision.
In its ruling the judges said of the original decision: ‘We suspect many reading this will find the outcome both surprising and disturbing, thinking to themselves, and we can understand why, how can this be so, how can this be right?’
Sir James Munby, Lady Justice Arden and Lord Justice Singh have sent the case back to the High Court for consideration.
They noted in their joint ruling: ‘When parents cannot agree and make an application to the Family Court, the judge hearing the matter must act as a “judicially reasonable parent” judging the child’s welfare by the standards of reasonable men and women of today in 2017, that is people who are “receptive to change, broadminded, tolerant, easy-going and slow to condemn.”
‘In the present case, the judge should have asked himself a number of pertinent questions before reaching his decision, including “How can the order give proper effect to the reality, whether the community likes it or not, that the father, whether transgender or not, is and always will be the children’s father and, as such, inescapably part of their lives, now, tomorrow and as long as they live?”’
They further noted, ‘Even secluded religious communities within society are not above the law of the land.’
They described the original judge’s ruling as ‘premature’ and ‘giving up too easily’.
‘The best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved. So strong are the interests of the children in the eyes of the law that the courts must persevere. As the law says in other contexts “never say never”. The doors should not be closed at this early stage in their lives.’
‘No religious community can operate on their own island but must conform to the law of the land’
Lawyers acting for the woman issued a joint statement welcoming the decision. Alison Ball QC, Hassan Khan, counsel, instructed by Colin Rogerson and Ms Anne-Marie Hutchinson OBE QC (Hon) of Dawson Cornwell, said: ‘This decision is one that will be welcomed not just by LGBT individuals living within small religious groups, but by the LGBT community in general.
‘It sends a clear message that no religious community can operate on their own island but must conform to the law of the land.’
Asked what the woman’s ideal level of contact with her children would be, Colin Rogerson of Dawson Cornwell told GSN, ‘The father has been separated from her children for some time, her case has always been that she seeks to be sensitively reintroduced to her children and had agreed to direct contact in a supervised setting, even away from the community.’
He said that the decision on the level of contact would ultimately be decided by the High Court.
Commenting on the ruling, Jay Harman, of Humanists UK, commented, ‘The fundamental rights of LGBT people to fair and equal treatment, and to respect, ought never to be undermined on account of religious intolerance or prejudice. Regrettably, that is what the original decision in this case served to do, so we are very pleased that it has now been overturned.’