Parents of transgender children fear their ex-partners will sue them for custody of their children after the high court ruled that a seven year old child who identified as transgender should be removed from the care of their mother.

Apparently. Except that fear (which doubtless is genuine) is based upon completely wrong facts. And the article by this headline appearing in The Guardian this week is feeding that fear.

The first clue that something is amiss is the hopeless terminology. Parents don’t “sue” one another, nor do the courts use terms like “custody” (which was abolished 30 years ago in favour of “residence” and since 2014 has been known as “child arrangements”). But no, this isn’t the Daily Mail we’re reading : it’s the Guardian. The article is written by Kate Lyons who is a journalist on the “special projects desk”. Kate won’t be the last journalist to get the terminology woefully wrong – custody is still in common use, but “sueing” is very archaic…

Of course terminology is one thing, but it’s the substance that matters. The main proposition in the article is this :

“Four mothers of trans children have said their ex-partners have threatened to take them to court for custody of their child in the wake of the ruling, says Mermaids, an organisation that supports young trans people and their families.”

Perhaps so. Probably there will be more than four if journalists insist on writing material that appears to be based solely on the perspective of a lobbying organisation with a prior interest in the case, without actually reading the judgment in the case they are complaining about. Four fearful parents is four too many of course, but it is scarcely a wave of terror. I’ll come back to the role of Mermaids in a moment, but firstly let’s look at the facts of the case that has precipitated this fearful reaction.

I said there were wrong facts : Well. It may surprise readers of Lyons’ article to find out that Re J (that’s the name of the case, although The Guardian – who really should know better – do not tell you that), is not a case about a transgender child at all. Nor is it, as asserted in many places on the internet, a case where a child who identified as a girl was now being forced by the court to live as a boy. It is a case with a very long history of parents in conflict through the courts, where the mother had failed to prove allegations of violence against the father, and who, according to the judge who heard the case, went on to develop an unhealthily close relationship with the child, perceiving him as gender dysphoric or presenting him as transgender – when he wasn’t. Mr Justice Hayden heard the case over a number of days in the summer and, based upon the experts and professionals whose evidence he heard (along with that of the mother herself), the judge concluded that J was a little boy whose mother’s perception of his gender difference was suffocating his ability to develop independently – and was causing him significant emotional harm. He was placed with his father, where he quickly began to explore toys and interests that were stereotypically “boys”. The judgement is very clear that the father had brought “no pressure on J to pursue masculine interests” and that his interests and energy were “entirely self motivated” (pa 47). So, not forced to live “like a boy” (whatever that means) – but choosing (there is more detail in the judgment).

Importantly, Hayden J acknowledged that there are genuinely children who are transgender or gender dysphoric, and who present in this way from an early stage, but – and here is the crux of it – this child was not one of them. This was all about the mother’s position.

This is but a bare summary of a lengthy and detailed judgment (which you can read in full online here : Re J (a minor) [2016] EWHC 2430 -. The Guardian don’t tell you that you can easily read it either). Importantly, the judgment tells you not just the headline of what the judge decided but the detail of why. It’s not for us to say whether the judge was right or wrong about that, but it is important for readers interested in this emotive and difficult topic to know what the court’s decision and reasons were, and that it is a decision that stands.

“Sarah Cornes, head of family law at TWM solicitors, said that while high court rulings did create precedents, and “clearly there is going to be a lot of concern” among parents in reaction to the ruling, the decisions made about where children live and how long they spend with each parent are “usually very fact-specific”.

“You can’t just say: there was a case and therefore everybody else’s situation will be affected. The overriding criteria in any case is what is in the best interests of the child,””

Whilst this is accurate so far as it goes, the way Sarah Cornes is quoted does not make clear that THIS High Court ruling does not create any precedent at all – that is to say it does not contain any novel principle of law and is not binding on another court.

It is possible that there are other children out there whose parents are causing them emotional harm by identifying them as transgender when they are not, just as it is undoubtedly the case that there are genuinely transgender children out there, many of whose parents are supporting them entirely appropriately, some of whom sadly are unable to – but it is important to make clear that this case was very fact specific – it does not set any precedent for the removal of allegedly transgender children from their parents, whether they be mothers or fathers.

Where parents have separated, differences in their parenting styles, household rules and beliefs can often become a source of conflict that can lead to disputes about arrangements for the child ending up in court. Inevitably, in some cases these disputes will coalesce around about how to respond to a child who is or may be transgender or who does not conform in some way – in this sense the dispute in this case was no different to any other dispute between parents about how it is best to meet the unique needs of their special child.

Lyons reports that parents are fearful of the reaction of professionals if they support their child’s transgender status. One feature of the Re J case is that the professionals appear to have been overly wary of not challenging the statements about the child’s gender identity, for fear of being seen as discriminatory, even though the mother’s descriptions did not match their observations. There is nothing in the judgment that suggests professionals are sceptical about claims of transgender status per se – only that in this particular case something didn’t add up and ultimately this led to a “clamour of concern” (para. 17 in the judgment). If there are ‘fearful’ parents of transgender children, they may find that reading the judgment in full and comparing it with their own situation is reassuring.

Whatever your personal views on the topic of transgender children and their care and treatment, it is uncontroversial that these issues present real challenges for both the children and their parents – and present themselves in myriad ways. And for many families, and the professionals working with them, these issues may be ones of which they are generally aware, but where their direct experience is limited, leaving them anxious or lacking in confidence. So it’s particularly important that writing on the topic is even handed and not over-emotive.

So knowing a bit more about the facts, let’s look at the provenance of this article and the role of Mermaids, the organisation mentioned almost in passing, and whose CEO is quoted at length. It is highly material that Mermaids are not just “an organisation that supports young trans people and their families”, they are the organisation who supported the mother in the case in question, and who (according to statements published after the judgment) have supported her for several years. It’s hard not to speculate that the court, in disagreeing with the mother’s assertion that the child was transgender, have set running a grievance on the part of Mermaids, who simply do not accept that the Judge was right, as can be seen from a moment’s googling. Online, they continue to support and encourage the mother’s narrative. The failure of The Guardian to disclose the very particular investment of Mermaids in this case is disingenuous and, frankly, disappointing.

When one compares the press release issued by Mermaids on 23 October 2016 with Lyons’ article, the article appears little more than a “working up” of the press release without critical analysis or any real attempt at balance :

“Parents fearful in supporting transgender children following High Court ruling

Parents of gender questioning and transgender children have expressed serious concerns, following publication of a High Court ruling in which a gender questioning child was removed from their mother on the basis that, in allowing the child to express gender non-conforming behaviours, the mother was in some way making her child transgender.”

It appears that all the parents spoken to in preparation of this piece have come via Mermaids. It seems doubtful that Mermaids are offering them much reassurance, given their perspective and their direct involvement with the mother and child over a number of years. It would be worrying if Mermaids were representing the judgment as a direct threat to the parents of genuinely transgender children, particularly if such advice led to parents disengaging from services and support. It would be worrying if this Guardian article had the same impact – either making resident parents unnecessarily fearful or emboldening or giving false hope to non-resident parents that they may have a new source of leverage to deploy in their existing conflict.

In a second judgment (Re J (A Minor) [2016] EWHC 2595 (Fam)), which looked at whether or not the mother ought to be able to tell her story and set out her “alternative view” of the case, the judge records that the mother was continuing to assert that her son was really a girl in contact sessions, and that this was a “significant challenge in promoting the mother and son relationship in future” (pa 32).

As to the mother telling her story to the press, in light of her position the judge said that :

“The potential consequences [of allowing it] incorporate not only the violation of J’s privacy but the inestimable harm to him caused by hearing, or hearing of, his mother asserting, in the public domain, her wholly unjustified conviction that her son is gender dysphoric or identifies as a girl. Moreover, it is difficult to see how by advancing her views in the public domain M can fail to damage the fabric of her relationship with her son. That relationship…is, above all else, J’s right.” (pa 33)

That is to say, the Mother was jeopardising her own contact. Whilst statements issued by Mermaids in October suggest that they will support her in an appeal, the main decision was made in July and time to appeal has long since elapsed. It seems unlikely that the judgments would have been published in October if any appeal was then pending.

The CEO of Mermaids is quoted as saying this about the fearful parents referred to :

“[The fathers] have literally said: ‘I’ve seen this [the court ruling]. I’m going to take you to court,’” said Green. “Parents are very, very frightened, and rightly so.”

All the more important then, to report calmly, accurately and with balance – and to provide readers with a link to the primary source : the judgments. Sadly, on this occasion the Guardian has failed on all counts and this article potentially represents something of a self-fulfilling prophecy.

We wrote about Re J when the judgments were published here : Transparency – The Perfect Storm

[Update : There are 3 judgments. We neglected to link you to the third, which is here: Re J (A Minor) (application for permission to Appeal) [2016] EWHC 2766 (Fam) (21 October 2016). This judgment deals with permission to appeal in relation to the reporting issues]

[Update 2 Dec : Yesterday Kate Lyons contacted us to let us know that some amendments have been made to the article, partly in response to our blog. These deal with some, but not all of the points we raised. We are still hoping that the Guardian will link to the original judgment. We’re pleased to see that Kate has now linked directly to the full judgment. We said in our round up that we had “forwarded” this post to Kate and The Guardian, by which we meant we had tweeted them. We’re grateful to Kate for giving us an email address we can use in future, and for making those changes.]

Feature pic : Mermaid, courtesy of Klaus Steifel on Flickr – thanks.