Court:
High Court of England and Wales (Family Division)
Date:
30 January 2017 CRC
Provisions:
Article 2: Non-discrimination
Article 8: Preservation of identity
Article 12: The child’s opinion
Article 13: Freedom of expression.
Other international provisions:
European Convention on Human Rights, Articles 8, 9 and 14.
Domestic provisions:
Children Act 1989, Section 1(1), 1(2A)
Sex Discrimination (Gender Reassignment) Regulations 1999
Gender Recognition Act 2004
Equal Treatment Directive (2004/113/EC)
Sex Discrimination (Amendment of Legislation) Regulations 2008
Equality Act 2010 Education (Independent School Standards) Regulations 2014
Human Rights Act 1998, Section 6
Case summary
Background:
Five children between the ages of 2 and 12 were living with their ultra-orthodox Jewish parents. The couple’s marriage ended when the children’s father transitioned and started living as a woman. The children remained living with their mother within the North Manchester Haredi Community. Both parents agreed that the children should continue living in the community, but their transgender parent sought contact with the children. The trangender parent asked the court to order that she be allowed direct contact with the children, seeking to be sensitively reintroduced to them so they could understand her transition. The mother sought to limit contact to indirect contact through letters.
Issue and resolution:
Parental contact, religious freedom, transgender discrimination. The court limited contact between the transgender parent and the children to written contact four times per year, with the suggestion that these could be sent to mark three Jewish religious holidays and the children’s birthdays.
Court reasoning:
The Court characterised the decision in the case as being between two irreconcilable minority ways of life – ultra-orthodox Judaism and transgenderism. The Court noted that “these children are caught between two apparently incompatible ways of living, led by tiny minorities within society at large. Both minorities enjoy the protection of the law: on the one hand the right of religious freedom, and on the other the right to equal treatment.” The Court was extremely mindful of the risk that if the children had direct contact with X, the Manchester Charedi Jewish Community could ostracise the family and ultimately force them to leave the community. This risk was supported by evidence presented to the Court.
The Court prioritised sustaining the continued chosen way of life for the family, noting that “these parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education”. The Court explained that “the best possible outcome would be for the children to live with their mother, grow up in the community, and enjoy a full relationship with their father by regular contact. The worst outcome, I find, would be for the mother and children to be excluded from the community. The question is whether, in striving for the best outcome, the Court would instead bring about the worst.”
The Court found that the benefit to the children of direct contact with their transgender parent was outweighed by the negative impact of the community reaction toward the family. The Court reached the conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.
Excerpt citing CRC and other relevant human rights
“The United Nations Convention on the Rights of the Child 1989 has been ratified by the United Kingdom and has persuasive effect. In addition to the above-stated principles, Article 2 protects children from discrimination on the basis of the status of their parents; Article 8 provides for respect to be paid to children’s rights to preserve their identity, including nationality, name and family relations; Article 12 provides that children who are capable of forming their own views shall have the right to express those views freely in all matter affecting them, their views being given due weight in accordance with their age and maturity, and that children shall be given the opportunity to be heard in any judicial proceedings affecting them; Article 13 provides that children shall have the right to freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds.”
Follow up:
The judge said he would send a copy of the judgment to Nick Gibb, the Minister of State for School Standards at the Department of Education, having noted in the case that “there is, to say the least, evidence that the practices within the community, and in particular its schools, amount to unlawful discrimination against and victimisation of the father and the children because of the father’s transgender status.”
Following the Court’s decision, a national newspaper reported that the possible social isolation suggested in court has since occurred and teachers have ordered other pupils to stop talking to the child in the school. On 14 February 2017, the Independent newspaper published an Article indicating that teachers at the private ultra-orthodox school that one of the children attends have instructed pupils to stop talking to the child because she has a transgender parent. The Article continues by stating “In addition to being shunned at their current school, the girl’s family fear that they are unable to change to another school, as all the Jewish faith schools in the area will now refuse to let their child enrol due to pervading transphobia among some members of the community.”
A spokesperson for the Department for Education told the Independent newspaper that all independent schools in the UK are expected to meet the independent schools standards, which includes a requirement to have an effective anti-bullying strategy in place, as well as respecting minority groups outlined in the Equality Act, including transgender people. They added that deliberately ostracising a child due to their parent’s gender identity would be a likely breach of such requirements and the department would take action if this is found to have occurred.
Notes:
The Court of Appeal reviewed the decision in December 2017 and returned the decision to the High Court to reconsider its judgment. CRIN’s summary of the Court of Appeal decision is available here.
CRIN comments:
CRIN believes that this judgment is partially consistent with the CRC. Despite the extremely difficult and upsetting nature of the case, the Court gave utmost priority to the children’s best interests in line with Article 3 throughout its analysis, and attached due weight to the views of the eldest child in line with Article 12. Although the outcome of the case is far from ideal, the Court attempted to lay the foundations for a future relationship between the children and their transgender father, directing child experts to support the process of creating a narrative in age-appropriate stages to help the children understand their father’s departure and transgender identity.
Citation:
[2017] EWFC 4, [2017] All ER (D) 108 (Jan)
Link to Full Judgment:
https://www.judiciary.gov.uk/wp-content/uploads/2017/01/j-v-b-and-the-children.pdf
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.