Court of Appeal hears transgender woman denied direct contact with her five children15 Nov 2017
Last month, the lawyers representing a transgender woman who had been refused direct contact with her five children, on the basis that they would be “shunned” by their ultra-Orthodox Jewish community” were in the Court of Appeal to challenge the decision of Mr. Justice Peter Jackson from earlier this year. Here, associate and LGBT family law specialist Michael Gregory provides his insight on the case.
The case concerned a male that had transitioned to a female and had fought for contact with her children since leaving the family home in 2015, which had been denied to her by the birth mother. The woman had grown up in a strict religious community. In reaching the lower court’s decision, Mr. Justice Peter Jackson had to battle with the question of whether a transgender woman should be allowed to see her children in the face of the community’s threat to ostracise the family and the birth mother if direct contact was permitted.
The initial judgement stated: “These children are caught between two apparently incompatible ways of living […] 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 woman had asked that she be sensitively reintroduced to the children in order to help them come to terms with her new way of life.
Despite the inherent best interest of all five children having direct contact with both parents, and that they would suffer harm if deprived of being able to maintain a relationship with the woman, Jackson J decided that rejection within the community far outweighed the woman having direct contact with her children. Accordingly, Jackson J ordered that there should be indirect letter-box contact three times per year only.
As family lawyers, we regularly advise parents on the importance of a child’s welfare and of how this should, at all times, remain paramount. The fundamental principle in family law is that one must act in the best interest of the children. This certainly is the family courts approach, as it should always be. However, in this case, the question of whether sufficient weight was given to the discrimination at hand and the harm that the children’s exposure to this discrimination could cause is something that will undoubtedly need to be revisited again by their Lordship on Appeal; certainly whether the best outcome in this case should have been no direct contact for the woman and her five children.
Three appeal judges presided over the case and they are expected to pass judgment in the New Year.