C (Children)

Where a child’s knowledge of a parent’s gender reassignment and the restoration of direct contact are both in issue, they are distinct welfare questions. The prospect of contact may properly require caution, but it must not defer necessary steps to ensure that children learn the truth in a planned, sensitive and professionally supported way.

Where expert evidence establishes a risk of serious harm from chance or unstructured discovery, and identifies specialist assistance for the children and the resident parent, a welfare decision which withholds that assistance and leaves the risk unaddressed is wrong. The pace of the work should be responsive to the children’s needs; it need not predetermine whether direct contact will occur.

The father, who had undergone gender reassignment surgery, appealed against an order made by Coleridge J in proceedings concerning his two daughters. There had been no direct contact for about five years. A child and adolescent psychiatrist, Dr Bester, advised that the children should be told the truth about their father in a planned and sensitive manner, with specialist professional support.

The judge declined to appoint the National Youth Advocacy Service (NYAS) as the children’s guardian. Instead, he imposed a moratorium of about 20 months, while permitting the father to send cards and requiring the mother later to state how she proposed to tell the children.

The appeal concerned whether the judge had wrongly postponed specialist work needed to protect the children from discovering the information accidentally, and whether that question had to be kept separate from the future of direct contact.

1. Appeal allowed unanimously. Lord Justice Thorpe gave the leading judgment. Lord Justice Wall and Lord Justice Hooper agreed. The order of Coleridge J was set aside.

2. The judge had accepted the essential expert evidence: the children needed to know the truth about their father’s gender reassignment, and disclosure had to be planned, measured, sensitive and supported. Yet the judge’s moratorium withheld the identified support and did not guard against an unstructured discovery, which could cause long-term harm and damage the children’s relationship with their mother.

3. The question of telling the children the truth was separate from the question whether direct contact should be restored. Direct contact was difficult and might be remote. It did not follow that disclosure and the preparatory work could be postponed. The longer the postponement, the greater the risk that the children would discover the truth by chance and face a more damaging adjustment.

4. The specialist work could not properly be left to local CAMHS, social services or CAFCASS. On the expert evidence, NYAS was the appropriate specialist resource. Its work was to begin promptly, with its pace dictated by the children and without any assumption that it would lead to direct contact.

5. The court ordered that the children be joined as parties, that NYAS undertake the work and provide an interim report, and that a further Family Division hearing be fixed promptly. Future hearings were to remain before Coleridge J if available.

• Court of Appeal (Civil Division): appeal allowed; the order of Coleridge J was set aside and replaced by directions for NYAS involvement ([2006] EWCA Civ 1765).
• Family Division, Principal Registry: Coleridge J declined to appoint NYAS and imposed a moratorium before a later review. No citation for that decision is stated in the judgment.