In the matter of M (Children)
Court of Appeal of England and Wales (Civil Division)
 EWFC 4
20 December 2017
Children Act 1989, Section 1(1)(a)
Equality Act 2010, Sections 4, 7 13 and 85.
Human Rights Act, Section 6
European Convention on Human Rights, Articles 8, 9 and 14
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 High Court decided, with regret, that because of the risk that the children would be ostracised from their community if they had contact with their transgender parent she should only have indirect contact with the children through letters sent four times per year. The transgender parent appealed the case and Stonewall and Keshet Diversity UK joined the case as interveners.
Issue and resolution:
Parental contact, transgender discrimination. The court ordered that the family court reconsider its decision refusing the transgender parent direct contact with her children.
The Court of Appeal upheld three grounds of appeal: (i) that the judge who heard the initial case had lost sight of the principle that the children’s best interests are paramount; (ii) that the judgment did not evaluate why indirect contact was in the children’s best interests, but direct contact was not; and (iii) that the judge had failed to exhaust the court’s powers to make direct contact possible.
In making these findings, the appeal court set out a number of questions that the judge should have asked before reaching a final decision, including whether he should come to a conclusion dictated by the practices of a community which involve discrimination and victimisation and where the focus is as much on the community as concern for the children affected. The court also found that the judge should have asked whether he should directly and explicitly challenge the parents and the community with the possibility that, without a change of attitude on their part, the court may have to remove the children from the mother’s care, make them wards of the court or even take the children in to public care.
Finding that the initial judgment did not sufficiently explain why it was possible to order that the children’s father could have indirect contact but not direct contact, the court noted that if the concern of the community was to shield children from knowledge of and exposure to transgender issues, indirect contact must carry the same risks as direct contact.
The court also held that the judge’s initial decision not to allow direct contact was premature and that there was scope to attempt to make progress towards direct contact. The initial judgment required the Anna Freud Centre to carry out work with the children to help them understand their father’s transition and the Court of Appeal considered that there was value in revisiting the issue of direct contact after this process had taken place.
The Court found it regrettable that the judge did not address head on the human rights arguments and evidence of discrimination that arose during the initial hearing and set out guidance for how the family court should consider the human rights issues raised in the case in making a new decision. The family court will be required to consider whether there had been any discrimination in violation of the Equality Act, which would include the children being ostracised by their school. The court also provided guidance on applying the non-discrimination provisions under the Human Rights Act as well as the right to freedom of religion and to private and family life.
CRIN’s summary of the original family court judgment is available here.
Link to full judgment: