Re M (Children) [2017] EWCA Civ 2164 (on appeal from J v B [2017] EWFC 4) (Ultra-Orthodox Judaism: Transgender)
https://www.judiciary.gov.uk/wp-content/uploads/2017/12/in-the-matter-of-m-20171220.pdf (England and Wales Court of Appeal (Civil Division), 20 December 2017)
(Appealed decision: http://www.bailii.org/ew/cases/EWFC/HCJ/2017/4.html (England and Wales Family Court, 30 January 2017))
Background: The father of five children, in an Ultra-Orthodox Jewish community, left home to live as a transgender person. She argued that she should be sensitively reintroduced to the children, helping them to understand her new way of life through regular and significant contact. The mother opposes direct contact due to fears of ostracism from the community, but accepts the children should have indirect contact three times a year.
At the Family Court, the judge held that there was a real risk of ostracism and rejection of the children and their mother by their community if the children were to have face-to-face contact with their father. He concluded:
“…with real regret, knowing the pain that it must cause, that the father’s application for direct contact must be refused.” [188]
Indirect contact was ordered, four times a year, the judge noting:
“This outcome is not a failure to uphold transgender rights, still less a “win” for the community, but the upholding of the rights of the children to have the least harmful outcome in a situation not of their making.” [189]
Held on appeal: The Court of Appeal allowed the father’s appeal. The Court accepted the three grounds for appeal: that the judge did not make the welfare of the child the paramount consideration; that the judge 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; and that the judge failed to exhaust the court’s powers to attempt to make direct contact work. The Court of Appeal considered it was unfortunate that the judge did not address head on the human rights issues and issues of discrimination which arose. The case was remitted to the family court for reconsideration.
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