In the matter of M - Case Analysis.pdf - Page1 Status Positive or Neutral Judicial Treatment A(Children(Contact Ultra-Orthodox Judaism Transgender

In the matter of M - Case Analysis.pdf - Page1 Status...

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Status: Positive or Neutral Judicial Treatment A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent), Re Also known as: M (Children) (Ultra-Orthodox Judaism: Transgender), Re Court of Appeal (Civil Division) 20 December 2017 Case Analysis Where Reported [2017] EWCA Civ 2164; [2018] 4 W.L.R. 60 ; [2018] 3 All E.R. 316; [2018] 2 F.L.R. 800; [2018] 2 F.C.R. 559; [2017] CarswellFor 1; 7 R.F.L. (8th) 1; Official Transcript ; Case Digest Subject: Family law Other related subjects: Human rights Keywords: Children's welfare; Discrimination; Freedom to manifest one's religious belief; Judaism; Parental contact; Religion or belief; Transgender identity Summary: A judge had erred in refusing direct contact between children and their father where the father, who lived as a transgender person, had been shunned by their ultra-orthodox Jewish community and the children faced ostracism if there was direct contact. Courts had a duty to promote contact and would not be prevented from intervening where the adults involved were intransigent; the approach was no different merely because religious belief was in play. Abstract: A father who had left an ultra-orthodox Jewish community and lived as a transgender person appealed against a decision refusing to order direct contact with her five children and instead ordering indirect contact. The father had been shunned by the community because she was transgender. There was evidence that the children would be ostracised by the community if they had direct contact. The judge held that the harm to the children of ostracism meant there could be no direct contact, despite the harm that would be caused by the lack of a relationship with their father. Held: Appeal allowed. Approach - The function of the judge in such cases was to act as the "judicial reasonable parent", judging the child's welfare by the standards of reasonable men and women of the day, having regard to the ever-changing nature of the world, including changes in social attitudes, and remembering that the reasonable man or woman was receptive to change, broad-minded, tolerant, easy-going and slow to condemn. Society's law required people to be treated equally and their human rights to be respected. It was a plural society in which the family took many forms. Judges had a positive duty to promote contact; they had to grapple with all the alternatives before abandoning hope of achieving contact, C (A Child) (Suspension of Contact), Re [2011] EWCA Civ 521, [2011] 2 F.L.R. 912 followed. The judge's decision could be read as implying that the more Page1
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enmeshed a child was in a narrow way of life, and the more intransigent the adults were, the more hamstrung the court would be. That was not the approach where religion was not in play, D (Children), Re [2009] EWCA Civ 1551 and D (Children), Re [2010] EWCA Civ 496 considered. The approach should not be any different merely because religious belief was in play (see paras 60-66 of judgment).
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