The press widely report the decision of Mr Justice Peter Jackson in a very sad and difficult case involving an ultra-orthodox Jewish (Charedi) family, where the father left the community to become a transgender woman, and has not seen her five children since. Mr Justice Peter Jackson refused the application for an order for face to face contact, saying that, if all else was equal the children could have coped with a sensitive reintroduction to their father, the impact upon them of the likely reaction of the Charedi Community would be so significant that it outweighed the benefits of direct contact.

You can read the full judgment here (but we summarise it below) : J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4 (30 January 2017).

How have the press covered this?

There have been a number of recent cases involving transgender issues or the ultra-orthodox Jewish community – this is the first where the two issues have come together in the same case, and this makes for a very complex situation, with competing lifestyles and religious beliefs and the potential for complaints of discrimination by either “side”. In such situations press coverage can sometimes be emotive or politicised and the actual facts and rationale for the decision can become lost in the outrage (see here for an example of a recent transgender case covered by the media).

We’ve seen reports in the Independent, Guardian, Times (paywall), and Mail. Broadly speaking the coverage has been measured and accurate, although the reports understandably cannot convey the full contents of the very lengthy and detailed judgment. It is a shame that none of the news items we have seen link to the judgment, which was published and freely available to the public and journalists on both the Judiciary and BAILII websites before press reports emerged. The Independent article is labelled “exclusive” and refers to “The landmark ruling, seen by The Independent,” which implies it has some kind of “exclusive” access to the judgment, which we think is rather disingenuous in effect if not intention.

We’ve posted comments on all those news items that are permitting comments (the Independent, Mail and Times) providing a link to the judgment and nudging them to consider including links to judgments in future. At the time of writing our comment on the Mail post has not been approved.

If we were being pedantic we would note that there are some rogue references in some coverage to “access” (contact), and to “birth mother” (mother), but overall there is little to criticise in the coverage so far, which is clear and balanced. We did note that when covering the matter today on Radio 4 Today, John Humphries referred to the father as “he”, as did Clive Coleman initially, before correcting himself to “she”. However, the explanation that Clive gave was very clear (and he was allowed sufficient time to give it), and the piece made explicit that from a legal point of view the court’s paramount consideration is the welfare of the child (this point is not made in any of the newspaper coverage).

None of the press reports mentioned the remarks made in the judgment about the poor social services assessment of allegations of inappropriate sexual touching (which the judge ruled robustly were not supported by adequate evidence and were not proved). The judge said that the process of investigation was “unsatisfactory from start to finish” (pa 32). Of social services he said that their “assessment concludes that there are no concerns because the father is not having contact with the children. If she was, consideration should be given to a comprehensive risk assessment to ensure that the children were not at risk of harm. Assessments of this kind (ducking the issue) are regrettably common and are of no real value to the children and families concerned.” This issue of poor investigation and analysis by police / social services has come up in other cases recently (see here for example : Re V (A Child) (Rev 1) [2016] EWFC 58 (01 December 2016)), and although we can understand editorially why it has not featured in news stories (this is plainly not the main feature of the case, nor is it dealt with in detail) we do think is worthy of comment.

What does the judgment say and what is the basis of the ruling?

The judgment is very long and quite technical in places, but is logically structured and comprehensive. It is worded in a very humane way, deliberately not expressing criticism where that can be avoided, and walking a difficult line in setting out and considering the religious and gender issues without making moral judgments on either. We will summarise it here, but even our summary is quite long.

The matter was heard over five days. It involved extensive evidence, from various Rabbis, experts from the Anna Freud Centre, and others. In addition the judge read various written material from others in and involved in the community. The children were joined as parties and represented through their guardian, who also gave evidence. The eldest child A, visited court and met the judge.

Both the guardian and the experts recommended, with regret, that direct contact should not be ordered because the impact of the community reaction would be harmful to the children. These recommendations depended upon the judge concluding that an adverse community reaction was actually a real risk in this case, and having heard competing evidence about this the judge concluded there was a very real risk that the community reaction would be harmful to the children – more harmful in fact than not seeing their father. The judge considered that their recommendations were properly made and based on solid analysis and understanding of the issues in the case.

It had been argued for the father that the court should make the order and then deal with or “face down” any adverse reaction from the community. However the judge was very clear that it was not his job to tell the community what to do – that would be social engineering – and nor did he have any powers over them.

In the course of the hearing the court received some evidence suggesting that the children’s ultra-orthodox school had behaved or would behave unlawfully by discriminating against the children on the grounds of their father’s transgender status, but again the judge was clear this was not a matter within the Family Court’s powers to control. The judge did however refer the judgment to the Minister of State for School Standards at the Department for Education, so that they can consider whether any action is required. On the face of the information in the judgment there are some live questions as to whether the school properly understands or is implementing its legal obligations in respect of equality and diversity, but it remains to be seen what the response the Minister will be.

In order to ensure that he properly considered all aspects of the case, and no doubt so that his decision could be better understood, Mr Justice Peter Jackson set out his judgment under the following headings :

• Terminology
• Narrative of events
• The law
• The evidence
• The welfare checklist
• Assessment and conclusion

This is vital in a judgment of such length and range.

The section on terminology is useful. We have already referred one person commenting on The Times article who queried the use of terminology transsexual versus transvestite, to this section of the judgment.

It is in the narrative section that one can see unfolding the reactions of the school and community to date, and the investigation of the inappropriate touching allegations. In addition the judge gives an account of the high levels of tensions around this case, including the father’s emotional and inappropriate responses to individuals within the community who had become involved in the case (pa 36), and some community discussion of the case.

The judge sets out the law in England & Wales at length, correctly summarising the main principles –

• the presumption that the involvement of an absent parent in a child’s life will be a good thing (s1(2A) Children Act 1989,
• the principle that the children’s welfare is the paramount (top) consideration (s1(1) Children Act 1989
• the fact that a child’s relationship with his parents is very important
• the fact that the court should not be overly swayed by transient or short term disruption or harm, but should also look at the bigger picture / the longer term
• the need for children to have skilled help in adjusting to having a transgender parent

The court also noted other cases involving the Charedi community, where the court had been firm in seeking to secure a continuing relationship with an absent parent in spite of some community disapproval. The judge clearly distinguishes between those cases and this, where importantly both parents agree that the children should continue to be brought up in the Charedi community. In the other cases whilst a parent had left the community, thereby bringing disapproval upon themselves, there was not the added complication of transgender status.

The judge moves on to look at other relevant aspects of the law in England & Wales, in particular anti-discimination legislation which affords protection both on grounds of religion and on grounds of transgender status – and to those associated with someone with those characteristics; and legislation around how schools, including religious schools, must deal with issues of sexuality, transgender etc. The judge also summarises the parties’ various human rights, and the UN Convention on the Rights of the Child.

The section setting out the evidence is lengthy and comprehensive. For those interested in the case it is well worth reading in full, as it gives some depth and colour to the arguments of the parties as to how the community might react, why that would be so significant (or not), and how it might be managed. It is fair to say that there were quite widely divergent views from religious leaders and authorities about how the community should or might react, and some direct accounts of actual reactions in cases where children or parents had left the “embrace” of the community.

After setting this out the judge goes back to first principles and considers the Welfare Checklist in s1(1) Children Act 1989. He notes that

• the children want to see their father, although the eldest, A, is worried and his comments to the judge about not wanting to see his father did not really reflect his true wishes and feelings.
• the children have already undergone significant disruption by the departure of their father and finding themselves in the unusual (in their community) position of being raised by a single parent. further disruption therefore needs to be minimised. The children have a need for support to understand what has happened and why.
• The question is whether a reintroduction would cause more harm / disruption than it would provide benefits
• The children identify unconditionally with the cultural and religious ways of their community. The judge says they are proud of it.
• the mother is the only parent able to meet the childrens’ needs and she can do so providing she is not overwhelmed herself (for example as a result of being ostracised or excluded from the community).

The judge notes that if he were to order direct contact, he would have to take the unusual step of making the children wards of court so that the court could maintain a handle on the case and ensure that the order was carried out.

The judgement makes plain that this has been a very difficult case to decide, both for the professionals making recommendations and for the judge himself. He says at paragraph 165 that

Here, 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.

He sets out a long list of “formidable” arguments in favour of contact. However, he identifies two factors that go against contact are :

(1) The father’s dependability.

(2) The community’s reaction to direct contact.

The judge does conclude that there are some issues with regard to the father’s dependability, essentially arising from her own emotional vulnerability. But, he says, this in itself would not prevent him making an order for direct contact. It is the second factor, the community reaction that – on its own – is sufficient to tip the balance.

Whilst in other recent cases the court has ruled on the basis that it is entitled to assume that other agencies will act lawfully (see : Judge rejects Welsh local authority’s care plan and allows mother to keep her eighth baby), this judge takes a more pragmatic approach and focuses on what he considers will actually happen i.e. the children’s actual likely experience of things if he makes the order or if he does not. The judge concludes there is a probability of the children being ostracised. He is clearly influenced by the direct accounts of previous reactions of the community to other children (see 177-178).

Rejecting the arguments of some witnesses that the father has made her own bed, he says :

In balancing the advantages and disadvantages of the children being allowed to see their father, I apply the law of the land. Some witnesses in these proceedings assert that gay or transgender persons have made a lifestyle choice and must take the consequences. The law, however, recognises the reality that one’s true sexuality and gender are no more matters of choice than the colour of one’s eyes or skin.

It has also been said that transgenderism is a sin. Sin is not valid legal currency. The currency of the law is the recognition, protection and balancing out of legal rights and obligations. In this case, to be recognised and respected as a transgender person is a right, as is the right to follow one’s religion. Likewise, each individual is under an obligation to respect the rights of others, and above all the rights of the children. (pa 179-80)

This is not, he says, a case about whether children should be brought up as ultra-Orthodox jews (everyone agreed they should), and it is not about whether transgender rights trump religious rights (or vice versa). It is about reality :

And here we come to the sad reality. I can see no way in which the children could escape the adult reaction to them enjoying anything like an ordinary relationship with their father. In the final analysis, the gulf between these parents – the mother within the ultra-Orthodox community and the father as a transgender person – is too wide for the children to bridge. They would be taught one thing in their daily lives and asked to do the opposite on repeated, conspicuous forays into the outside world, which they would have to keep quiet about afterwards. The mother, a religiously observant person, would be required to sustain something that she has been taught is religiously wrong. A, aged only 12, is already extremely anxious about contact and now feels protective towards his mother and younger siblings. Embarking on contact would place him under extreme pressure, which would inevitably have a detrimental effect on his development.

The children, and the mother on whom they depend, would have no effective support to deal with any of this: on the contrary, they would face suspicion or outright opposition from every quarter. The likely result is that their individual and collective well-being would be undermined to the point where their ability to remain in the community would be put at risk, or at the very least placed under permanent and severe strain, with (as Ms Henry and Dr Morris put it) “a negative impact on how they function in the widest possible sense both now and in the future”. (pa 182-3)

Unusually, the judge made a Family Assistance Order for 12 months, to enable CAFCASS to assist with the indirect contact the judge ordered, and the life story work that the children would need. These orders are not used very often, but a family assistance order seems to be an appropriate mechanism through which to achieve the desired result.

What about transparency?

This judgment was published immediately on delivery on both the BAILII and Judiciary website, no doubt because the Judge recognised that there was significant and legitimate public interest in the case.

As is usual the judgment is anonymised, but the fact that the case concerns not only a specific Charedi family but also the whole Charedi Community in Manchester, gives a different angle to transparency considerations.

Firstly, the ages of all 5 children, including the age of twins, is given in the judgment. Presumably the Charedi community in Manchester is relatively small, so it seems likely that the information contained in the judgment would enable members of that community to identify the family. That said, it appears from the judgment that the fact of the father leaving the community, and the gist of the reasons for it are known in the community anyway, but of course the judgment gives far more detail about the ins and outs of life for the family, the parents’ respective positions etc.

That said, in theory at least, the Charedi community will not read the judgment since the practice of their religion means they are not permitted access to the internet (see paragraph 13 of the judgment which confirms that “Access to television, to the mass media, and to the internet or social media is not permitted”). However, the judgment gives some support for the proposition that some members of the Charedi community transgress this rule (e.g. see para 36) and so the judgment could come to be seen by them. And of course, a number of members of the Charedi community are in broad terms aware of the case because they offered statements or gave evidence. We wonder whether there is a risk that the knowledge or anxiety that the details of the case would ultimately find its way back into the community (through the judgment or otherwise) could have borne upon the mother’s stance in proceedings, since her position appears to have been that she needed to remain demonstrably compliant with the social norms of the Charedi community in order to avoid herself and the children being ostracised. Put another way, what other position could she have adopted?

On another level, one might argue that there is a public interest in the Charedi community having access to the judgment in order to see and consider the consequences for the children of their collective approach. However, the judge was very clear that it was not his role to judge the community or to engage in social engineering.

Either way, it is an oddity that a judgment so widely published and commented upon is effectively inaccessible to the community that it discusses.

Feature Pic : worlds apart by Yosef Silver on Flickr – thanks.