Re M

The Court of Appeal allowed the father's appeal against Peter Jackson J's final order refusing direct contact and remitted the case for further consideration. The court reaffirmed the paramountcy of the child's welfare under section 1(1)(a) of the Children Act 1989 and the judge's positive duty to attempt to promote and preserve contact (see Re C (Direct Contact: Suspension) [2011] EWCA Civ 521). The appeal succeeded because the lower judge gave decisive weight to the likely reaction of the ultra-Orthodox community (found to involve discriminatory and victimising practices) without adequately reconciling that conclusion with his role as the "judicial reasonable parent", without sufficiently engaging with equality and human rights issues (Equality Act 2010; Articles 9 and 14 ECHR) and without exhausting measures and staged alternatives to try to make direct contact work. The court emphasised the need on rehearing to scrutinise (i) whether unlawful discrimination (including associative discrimination affecting the children) would in fact occur, (ii) the legal duties of schools under section 85 of the Equality Act 2010, (iii) the ambit and justification questions under Article 14 and (iv) whether the community's practices attract protection under Article 9. The appeal was therefore allowed and the matter remitted for further family court consideration of contact consistent with the children's welfare.

Background and procedural posture:

• The proceedings originated before Peter Jackson J ([2017] EWFC 4) in private law proceedings between the father (who lives as a transgender woman) and the mother of five children aged between 3 and 13 years. The father applied for direct contact; the judge refused direct contact, made limited indirect contact orders, required age-appropriate "staged narratives" for younger children and made a family assistance order under section 16 of the Children Act 1989. The father obtained permission to appeal. This Court heard the appeal on 15 November 2017 and handed down judgment on 20 December 2017.

Key facts:

• The judge below found that, because the father is transgender, the ultra-Orthodox North Manchester Charedi community would shun the father and ostracise the children and mother if the children had face-to-face contact with the father. The judge found that (a) the children would suffer serious harm if deprived of a relationship with the father and (b) the children would suffer serious harm if excluded from their community, and concluded that the likely ostracism by the community made direct contact untenable.

Issues framed by the court on appeal:

1. Whether the lower court lost sight of the paramountcy principle in giving decisive weight to community reaction.
2. Whether the judge adequately evaluated why indirect contact and staged narratives were in the children’s best interests while direct contact was not.
3. Whether the judge exhausted the court’s powers and duties to try to make direct contact work before refusing it.

Court of Appeal reasoning and outcome:

The Court of Appeal held the judge's conclusion was vulnerable on multiple interlinked grounds. Although the judge carefully analysed evidence and rehearsed legal principles, he did not sufficiently address highly pertinent questions about the compatibility of his conclusion with the role of the judicial reasonable parent, the possibility of using the court’s coercive and welfare-preserving powers (including measures short of removal), or the legal status of the community’s conduct under the Equality Act 2010 and the Convention. The court criticised the limited analysis of associative discrimination and of Article 9/Article 14 issues, and found insufficient explanation why indirect contact was acceptable if the community’s concern was to shield children from knowledge of transgender matters. The Court held the decision to refuse direct contact was premature and that the family court should be directed to reconsider the matter, exploring whether lawful measures, staged supervised contact, engagement with community leaders and the exercise of relevant statutory powers could enable more contact in the children’s medium and long-term interests. The appeal was allowed and the case remitted for rehearing; the Court gave guidance on equality and Convention matters to assist the family court.

This was an appeal which the Court of Appeal allowed and remitted to the family court for reconsideration. The court held that, while the judge below identified a real and serious risk of ostracism by the community, he did not sufficiently apply the child welfare paramountcy standard as the "judicial reasonable parent", did not adequately engage with equality and Convention rights or analyse whether the community practices were entitled to protection under Article 9, and did not exhaust the available measures to attempt to make direct contact work. For these reasons the matter must be reheard so that the family court can scrutinise whether unlawful discrimination would in fact occur, whether any such conduct could be mitigated or prevented (including consideration of schools' duties under the Equality Act 2010), and whether stepwise or supervised alternatives could better serve the children’s medium and longer term welfare.

Appeal from Peter Jackson J ([2017] EWFC 4; judgment handed down 30 January 2017; order made 2 February 2017). Permission to appeal given by King LJ on 16 June 2017. Interveners Stonewall Equality Limited and Keshet Diversity UK were granted permission to intervene (27 October 2017). The Court of Appeal heard the appeal on 15 November 2017 and delivered judgment on 20 December 2017 allowing the appeal and remitting the case to the family court for reconsideration.