The Court of Appeal (Sir James Munby P and Arden and Singh LJJ) has handed down judgment in M (Children), Re  EWCA Civ 2164.
In January I reported on (and commented on) Peter Jackson J’s judgment in J v B (Ultra-Orthodox Judaism: Transgender)  EWFC 4. The couple, who were members of the North Manchester Charedi Jewish community, ended their marriage in June 2015 when the father, J, left home to live as a woman. J then had no contact with the children because of the attitude of the Charedi community to transsexuals, though she sought to remain an Orthodox Jew, keeping kosher and attending the Orthodox synagogue when she could. She sought an order for contact from the Family Court.
J wished to be sensitively reintroduced to the children; and while B had been initially opposed to any contact whatsoever, she came to accept that the children should have indirect contact with J. Nevertheless, she opposed any direct contact during their childhoods because, she claimed, it would “lead to the children and herself being ostracised by the community to the extent that they may have to leave it” .
Peter Jackson J concluded “with real regret, knowing the pain that it must cause” that J’s application for direct contact should be refused. Instead, he made an order for indirect contact four times a year . He also pointed out, in passing, that “The law … recognises the reality that one’s true sexuality and gender are no more matters of choice than the colour of one’s eyes or skin”  and that “It has also been said that transgenderism is a sin. Sin is not valid legal currency. The currency of the law is the recognition, protection and balancing out of legal rights and obligations [180: emphasis added].
The Court of Appeal (Sir James Munby P and Arden and Singh LJJ) concluded, in short, that Peter Jackson J had given not struck the correct balance between the needs of the children, the wishes of J, the wishes of B, and the views of the Charedi community generally.
The Court drew attention to two principles which, in its view, were central to the issues before it:
“60. The first is the core principle that the function of the judge in a case like this is to act as the ‘judicial reasonable parent’, judging the child’s welfare by the standards of reasonable men and women today, 2017, having regard to the ever changing nature of our world including, crucially for present purposes, changes in social attitudes, and always remembering that the reasonable man or woman is receptive to change, broadminded, tolerant, easy-going and slow to condemn. We live, or strive to live, in a tolerant society. We live in a democratic society subject to the rule of law. We live in a society whose law requires people to be treated equally and where their human rights are respected. We live in a plural society, in which the family takes many forms, some of which would have been thought inconceivable well within living memory.
61. The second … is the principle that the judge has a positive duty to attempt to promote contact; that the judge must grapple with all the available alternatives before abandoning hope of achieving some contact; that the judge must be careful not to come to a premature decision; and that ‘contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt’ … We add that the duty of the judge is not circumscribed by the way in which the parties choose to identify the issues or to argue the case. The judge has a free hand. Thus, for example, section 10(1)(b) of the Children Act 1989 provides that: ‘In any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order with respect to the child if … the court considers that the order should be made even though no such application has been made’.”
The Court was of opinion that the approach should have been no different merely because religious belief, practice or observance was in play . The judge at first instance had not asked “a number of highly pertinent questions” about such matters as the effects of behaviour that was, or might be, unlawfully discriminatory and how the outcome could meet “even the medium- let alone the long-term needs and interests of the children” . He “did not address head on the human rights issues and issues of discrimination which plainly arose”  and he “did not sufficiently explain why, given the basis of the mother’s and the community’s objection to direct contact, it was nonetheless feasible to contemplate indirect contact” . The Court felt that he “‘gave up too easily’ and decided the question of direct contact then and there” .
As to the issue of Article 9 and the right of the Charedi community to manifest its beliefs:
“131. If the matter has in due course to be determined by the court, we would take the view that in the light of developments in Strasbourg jurisprudence there would be force in [the] submissions that the community’s beliefs, which resulted in the ready exclusion of young children from the rest of the community, did not meet the criteria set by the Strasbourg court for a religious belief that was entitled to protection under Article 9 … In that situation, we would expect the leaders of the community to help the community to adopt a more flexible attitude to their beliefs as they might affect the children.
In the view of the Court, the Article 9 rights of the mother and children were outside the discussion but ought not to be restricted to any greater extent than that permitted by Article 9(2) because of the courts’ statutory obligation to act compatibly with the Convention . On the more general issue of whether an order for direct contact would violate the Article 9 rights of the community:
“134. It is not appropriate for us to give any final view in answer … as that stage has not yet been reached. Provisionally, however, it seems to us that, if a court were to make an order granting the father some form of direct contact to the children, it would have to have concluded, after the most careful consideration with the parties, that that course was in the best interests of the children. If this involves any interference with any rights of the community to manifest their religious beliefs, we doubt that there would be any violation of the community’s rights under Article 9. This is because the court, as an organ of the State, will on this basis have decided that a restriction that may be involved of their right to express their religious beliefs serves the legitimate aim of protecting the children’s rights to have contact with their father and thus to enjoy family life with him, which rights are vital to their well-being” [emphasis added].
The appeal was allowed and the case was remitted for a further hearing by the Family Court before Hayden J.
See also: Paul Erdunast, UKHRB: High Court decision refusing ultra-Orthodox transgender father access to children quashed.