Claire McCann, an expert on trans equality, analyses the competing arguments in the Family Court’s recent assessment of the children’s “best interests” in the unusual context of a transgender parent and the Charedi Jewish community in North Manchester.
In Family Court proceedings in Manchester, a trans woman – the father and claimant in J v B and Children (Ultra-Orthodox Judaism: Transgender)  EWFC 4 – has been refused direct contact with her five children.
In his Judgment, Mr Justice Peter Jackson concluded that there was less risk of serious harm being caused to the children through loss of direct contact with their father than as a result of their likely rejection by the ultra-orthodox Jewish community in which they and their mother live should they resume direct contact with their trans father who left that community in June 2015, having decided to end the marriage and to start the process of gender reassignment.
The case has been reported as a clash of rights as between the right to freedom of thought, conscience and religion under Article 9 of the European Convention of Human Rights (ECHR) on the one hand and, on the other, the right to respect for private life under Article 8 ECHR which is to be enjoyed without discrimination under Article 14. Indeed, to equality lawyers, the Judgment could be viewed as legitimising or, at least, condoning unlawful discriminatory and victimising conduct by the children’s schools and community whilst disregarding the right of a transgender father to participate in family life without discrimination. As such, it might appear to sanction the continued existence of an isolated community subsisting outside of modern societal and legal norms. That is too simplistic an interpretation of a complex set of circumstances. As the conclusion of the sensitive and well-reasoned Judgment makes clear, the outcome is not a failure to uphold transgender rights, still less a “win” for the ultra-orthodox Jewish community, but the upholding of the rights of the children to have the least harmful outcome in a situation not of their making.
Before the marriage breakdown, the family had all lived in the Charedi Jewish community in North Manchester. Both parents had come from large Chassidic families, the mother’s in North Manchester and the father’s in America. They married in an arranged marriage in 2001 and had five children between 2004 and 2014. The four older children attend single-sex faith schools in their community. Teachers at the children’s schools (and a counsellor) testified to the social exclusion which the children would face arising from concerns on the part of other parents to protect their own children from perceived negative influences from the outside world caused by their potential exposure to information and ideas viewed by the community as violating Jewish law and thereby as inappropriate. In that regard, the Judge noted that the Charedi community was characterised by its strict adherence to Jewish law and its distancing from modern secular culture.
The claimant father – whom the Judge described as having been “fully involved” with the children – gave evidence of her consistent feeling of incongruity over her gender identity since she was very young, and explained that this had been dismissed by her family as “stupid” and “silly”. In her evidence, she stated that she had been warned that a marital separation would lead to complete exclusion from the community and that she had even received death threats.
The father’s case was that she should be sensitively reintroduced to the children, who should be helped to understand her new way of life and allowed to enjoy regular and meaningful contact with her outside the community. The opposition of the community should be confronted and faced down.
The mother accepted that the children should have indirect contact with their father via correspondence three times a year but opposed direct contact of any kind during their childhoods as she claimed that this would lead to the children and to her being ostracised by the community to the extent that they might even need to leave it which would have extremely serious consequences for the wellbeing of the children.
Notably, the Children’s Guardian and two expert witnesses (a clinical psychologist and a family therapist) from the Anna Freud Centre both concluded, albeit by a very narrow margin, that the benefits to the children of resuming direct contact with their father would be outweighed by the harmful community reaction that would result.
The Court noted four previous family law cases, two of which had concerned transgender parents, although not within the context of an ultra-orthodox Jewish community (Re C  EWCA 1765 and Re T  EWCA Civ 85) and two of which concerned issues arising out of marital breakdown within the Charedi community (Re G  EWCA Civ 1233 and Re X  EWFC B230,  EWFC B237;  EWFC B29). However, no case has previously considered the question of family breakdown in the context of a trans parent within the Charedi community.
To understand the Judge’s decision that there should only be indirect contact with the father (by way of written communication with the children on four occasions during the year), it helps to understand two highly significant points.
Firstly, it was key to the Court’s conclusion that both the mother and the father agreed that the children should live with their mother and continue to be raised within the culture of the North Manchester Charedi community in which they had been born. In that sense, the case was very different to both Re X and Re G, in which the parents were not in agreement about their children continuing to be raised in accordance with the strict rules of ultra-orthodox Jewish life.
Secondly, the Court had to decide how the community was likely to react to any court order for direct contact with the father. In that decision-making, the Judge concluded that it was not for him to decide the merits or demerits of Jewish law or to condone the practices within the community, in particular its schools, which would amount to unlawful discrimination against and victimisation of the father and the children because of the father’s trans status. Instead, the Judge recognised that he needed to have regard to the fact that those practices existed and would likely have real and harmful consequences for the children. In so-deciding, the Judge took into account evidence citing specific examples of how the ultra-Orthodox community had reacted in other cases when there had been family breakdown and/or a parent had left the community. The Judge also noted the evidence of a foster carer who had fostered children from the North Manchester Charedi community and who described the way in which the community protected their way of life (leading to community hostility and to children from broken homes being ostracised), regardless of the justice of the matter or the welfare of the children involved.
Therefore, unlike the Court of Appeal judgment in Re G, this case was not about whether the children should or should not be brought up according to ultra-Orthodox Jewish principles. Instead, the Court had to give priority to sustaining the children in the way of life chosen by both parents, preserving their existing family and social networks and their education. The Court recognised that direct contact with the father carried the clear risk that the children and their mother would become casualties in a collision between “two unconnecting worlds”, observing that “the father has already experienced the consequences of that collision, and no one knows better than she does how very painful they can be”.
The case, therefore, turned on its very particular factual context and its conclusion was driven by the Court’s assessment of the paramount consideration in family law cases – namely, what is in the best interests of the child. This is not to say that the Judge decided that family law or religious rights trump equality law but, rather, the case reflects a recognition by the Court that it must have regard to the reality of the situation – however undesirable – and decide what the least harmful outcome is for the children concerned. As such, Peter Jackson J noted that he had “reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact”.
It is perhaps a mark of the Judge’s disapproval of the attitude of the community and its schools that he directed that a copy of his Judgment should be sent to the Minister of State for School Standards noting that “if change is required (and that is for others to say), responsibility must fall on the shoulders of the schools, the community and the state, and not on the heads of young children”.