In the matter of M (Children)

When determining a child’s welfare, the court acts as the judicial reasonable parent and applies contemporary standards of tolerance, equality and respect for minorities. Religious and cultural considerations are relevant, but remain subordinate to the child’s paramount welfare.

Direct contact with a parent may be stopped only as a last resort. The court must take all reasonably available steps to maintain or restore the relationship and assess welfare over the medium and long term. It cannot allow the discriminatory response of a community to dictate the outcome without confronting that response, examining its legality and exhausting practical alternatives.

A school’s adverse treatment of a child because of a parent’s transgender status is capable of constituting unlawful associative discrimination. Religious motivation does not make such discrimination lawful.

The transgender father of five children appealed against a final order made by Peter Jackson J in private law proceedings: J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4. The children lived with their mother in an ultra-Orthodox Charedi Jewish community. The judge found that they needed a relationship with their father but would probably be ostracised by the community if direct contact occurred.

The Family Court dismissed the application for direct contact. It ordered limited indirect contact, staged age-appropriate narratives and family assistance under the Children Act 1989. The father appealed on the grounds that the judge had lost sight of welfare paramountcy, had not explained the distinction between direct and indirect contact, and had failed to exhaust measures capable of making direct contact work.

The central issue was whether a final refusal of direct contact was justified when it was substantially driven by the anticipated discriminatory reaction of the children’s community.

1. Appeal allowed and case remitted. The father established all three grounds of appeal. The final refusal of direct contact was premature and the case was remitted to Hayden J for further consideration.

2. The court must act as the judicial reasonable parent. Welfare under section 1(1)(a) of the Children Act 1989 is assessed by contemporary standards. Those standards include broadmindedness, tolerance, equality under the law, respect for human rights and protection of minorities. Welfare requires a holistic, medium- and long-term appraisal of the child’s development, relationships and future opportunities.

3. Religious beliefs and cultural identity deserve respect, but they do not displace welfare paramountcy. A secular court neither adjudicates religious doctrine nor ranks one faith against another. It may nevertheless regulate manifestations of religion which conflict with a child’s welfare, the rights of others or the requirements of a plural democratic society governed by law.

4. Direct contact between parent and child is a fundamental element of family life and ordinarily serves the child’s interests. A judge has a positive duty to promote or restore contact, examine every reasonably available alternative and avoid a premature final decision. Contact may be stopped only exceptionally, as a last resort, when cogent reasons establish that the child will not benefit from continued attempts.

5. The first-instance judge did not reconcile his conclusion with the judicial reasonable-parent standard. He did not sufficiently confront the mother and community with the discriminatory character of the anticipated ostracism, consider the court’s more robust powers, or address the children’s medium- and long-term need for a relationship with their father. Nor did he adequately explain why indirect contact was feasible while direct contact was not.

6. The judge should have deferred a final decision while staged narratives and other professional work were undertaken. A step-by-step attempt at contact, supported by appropriate intervention and an explicit challenge to discriminatory conduct, had not been tried. The children’s best interests pointed towards greater contact if it could be achieved, and the court was required to persevere.

7. Provisionally, ostracism by a school because of a parent’s transgender status would be associative direct discrimination and a detriment under sections 13 and 85 of the Equality Act 2010. Religious motivation would not legalise it. A family court should not simply place prospective unlawful conduct in the welfare balance; it must examine whether that conduct would occur and what lawful weight it could receive.

8. The court also had an independent duty under section 6 of the Human Rights Act 1998 to act compatibly with Convention rights. Any discrimination required scrutiny under Article 14, while any interference with the manifestation of religion required justification under Article 9(2). The Court of Appeal expressed provisional guidance only on those issues because the rehearing had yet to occur.

1. Court of Appeal (Civil Division): The father’s appeal was allowed. The refusal of direct contact was held to be premature and the proceedings were remitted to Hayden J for further consideration: [2017] EWCA Civ 2164.
2. Family Court: Peter Jackson J dismissed the father’s application for direct contact and ordered limited indirect contact, staged narratives and family assistance: J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4.