J v B  EWFC 4 (20 January 2017)
The Family Court in England has grappled with the collision between two "unconnected worlds" in ordering that a transgender mother is not permitted direct contact with her five practising, ultra-orthodox Jewish children, on the basis that the benefits to the children of resuming contact would be outweighed by the harmful community reaction to the children and their family. However, the Court ordered that indirect contact four times a year be allowed.
J and B, the parents of five children between the ages of 2 and 12, were raised and married in an ultra-orthodox Jewish community. They lived within their community in northern England which functioned in seclusion from broader society. The children shared a close and loving relationship with both parents.
The relationship ended in June 2015 when the father J left home to live as a transgender woman. As a result of the prevailing customs and attitudes of the ultra-orthodox Jewish community, J left the community and has had no contact with the children since she left.
Consequently, she initiated proceedings seeking orders for direct contact with the children on a graduated basis, having regarding to the sensitive reintroduction which she acknowledged would be needed for the children.
The mother, B, opposed the application and initially sought orders for no contact. However, on advice B accepted that the children should have indirect contact on three occasions during a year.
Throughout the course of the trial, the Court was faced with a predicament which comprised the diametrically opposed landscape of domestic law (including the welfare of the child being the Court's paramount consideration, gender recognition laws and equality protections) on the one hand and the customs, attitudes and practices of the ultra-orthodox, religious community on the other.
Fundamentally, what lay in the middle of that dichotomy were the children and two competing proposals which, it was argued by both parents, respectively best fostered the children's welfare.
The Court concluded that it could not make an order for direct contact between the children and J. Instead, the Court made an order for indirect contact between J and the children four times per year for each child. B had proposed indirect contact in the form of letters (three times per year). However, His Honour invited submissions as to the structure of such indirect contact.
The Court's decision centred upon the following considerations:
- The Court was charged with the responsibility of applying domestic law as it applied to the welfare of children. The Court cannot adjudicate upon the "way of life" of a transgender person or an ultra-orthodox Jewish person.
- The worst outcome would be for the children and their mother B to be ostracised from their community. The Court found that there was a "real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father".
- There was a consistent account from witnesses as to the likely response of the community to direct contact and the evidence presented on behalf of J accepted this to an extent.
- There was evidence that community practices were discriminatory towards the children and J in respect of her being transgender and therefore unlawful. However, the illegality of those practices did not mean that such conduct did not occur in reality.
- There was no evidence that the community would be prepared to adapt to the unique circumstances presented in this case or challenge the practise of its members, at least within the children's foreseeable future.
- In distinguishing case law, it was acknowledged that this was not a case about whether the children ought to be raised within an ultra-orthodox community. Rather, the parents made the decision to raise their children according to the "narrow ways of the community" and this was something they continued to agree upon. As a result, priority must be afforded to the children's' chosen culture which included their family and social networks.
- The advice of the professional witnesses as to the fundamental considerations concerning the children's welfare was unanimous, and endured intense scrutiny, which it withstood.
His Honour concluded:
In balancing the advantages and disadvantages of the children being allowed to see their father, I apply the law of the land...
And here we come to the sad reality. I can see no way in which the children could escape the adult reaction to them enjoying anything like an ordinary relationship with their father. In the final analysis, the gulf between these parents – the mother within the ultra‐Orthodox community and the father as a transgender person – is too wide for the children to bridge. They would be taught one thing in their daily lives and asked to do the opposite on repeated, conspicuous forays into the outside world, which they would have to keep quiet about afterwards...
I therefore conclude with real regret, knowing the pain that it must cause, that the father's application for direct contact must be refused.
The case highlights profoundly the conflict between four fundamental human rights; namely:
- the rights of a child to know, love, and have a meaningful relationship with each of their parents;
- the rights of a child to preserve their identity;
- the right of J and her children to be protected against victimisation and discrimination as a consequence of her being transgender; and
- the right of B, her children and the ultra-orthodox Jewish community to exercise religious freedom and the practise of their religion.
Justice Jackson noted concerns about the evidence as to the likely community response to the children's contact with J (including the response of the orthodox school). If established, His Honour noted that this response was likely to constitute unlawful discrimination. Accordingly, Jackson J ordered that a copy of His Honour's judgment be sent to the Minister of State for School Standards at the Department of Education for determination as to whether further action was necessary.
It was apparent from the Court's decision that the children's right to know and have a meaningful relationship with J was outweighed by consideration of their best interests in the broader context of the Court's mandate. The risk of harm to the children by the denial of such a right was highlighted by the Court.
As Jackson J states:
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.
From an Australian perspective, children's matters under the Family Law Act 1975 (Cth) (FLA) are similarly governed by the "paramountcy principle"; namely, that the child's best interests is the paramount consideration. In addition, the FLA similar sets out the factors that the Court must take into account when determining what is in a child's best interests. Some of these factors mirror the "welfare checklist" referred to by Justice Jackson.
It remains to be seen how an Australian Court would approach such a matter. What is clear is that courts are placed in an unenviable position of, among other things, indirectly prioritising the human rights of one party over another. Regrettably, the vulnerable needs and rights of children can be caught in the middle of that divide.
The full text of the decision can be found here.
Laura McDonnell is a lawyer at Lander & Rogers