We wrote back in January last year about a case where Mr Justice Peter Jackson (now in the Court of Appeal) had ruled against direct contact between children raised in an ultra-orthodox (Charedi) Jewish community and their transgender father, in essence because in light of the likely community ramifications it would not be in their best interests. You can read our original post here : Transgender v ultra-Orthodox Jewish community?
Just before Christmas the Court of Appeal overturned that decision, saying that Jackson J had been wrong to allow [not dealt properly with relevance of*] the predicted unlawful and discriminatory behaviour of the ultra-orthodox community to dictate the question of contact – and that there was no discernable logic to permitting indirect contact as this may well give rise to the same sorts of issues that had led the judge to deny face to face contact. You can read the Court of Appeal’s judgment here.
We’d wanted to write this up before now, but in fact the excellent Rights Info have beaten us to it, and they’ve done a great job of explaining why the Court of Appeal said Jackson J got it wrong. He had not focused enough on the human rights and discrimination angle to the case, and whether the orthodox community liked it or not these children had a father who was living as a woman. The case is a reminder that in making decisions about children the court itself has a duty to act as far as possible in ways which are compatible with human rights, including protection from discrimination. Read the Rights Info post here : Court of Appeal Overturns Decision Denying Trans Parent Contact With Children.
There may in due course be a further judgment as the case has been sent back for a re-hearing by a fresh judge. If and when there is we will report further.
*words in [square brackets] and struck through amended on 5 Feb.
Feature pic : worlds apart by Yosef Silver on Flickr – thank you!
I rarely disagree with both Transparency Project and RightsInfo and in one go. On this Court of Appeal interference I believe both are wrong; and that the Court of Appeal should not have got involved with this case.
The appeal was not allowed on Equality Act 2010 or human rights (eg Art 14) principles ([84] and onwards). The Court of Appeal said the next judge might want to consider these next time.
The father’s appeal was disallowed on two grounds:
1 That the judge must act as the ‘judicial reasonable parent’: who could suggest that Pater Jackson J – of all judges – would not act as such a parent? And surely what one ‘reasonable’ parent thinks is ‘reasonable’ another parent might not.
2 That the judge had a duty to ‘promote contact’: ‘the principle that the judge has a positive duty to attempt to promote contact; that the judge must grapple with all the available alternatives before abandoning hope of achieving some contact’. Well he did award indirect contact and expected the case to come back in the future
Where in law is there a ‘duty to promote contact’?
This sounds as though the Court of Appeal are inventing new law; or moving the goal-posts as the case proceeds (as Lord Bingham called it). And it gets worse.
Where a first instance judge must decide on a course in relation to children, an appeal court should only interfere with that judge’s decision if it was ‘plainly wrong’ (ie obviously wrong; and there is extensive House of Lords and Supreme Court case law on this point). Was Peter Jackson J really so very wrong? After all the appeal court only sent it back to get another judge to have another crack at the same decision. And that is something Lady Hale in the Supreme Court has clearly said appellate judges must not do where a judge’s discretion – ie a decision based on personal views – is concerned. In effect, said Lady Hale, if appeals like this are allowed, why would family judges get out of bed in the morning? Another top family judge (Lord Justice Ward) has said: on a decision such as this, two people can have opposite views but neither be wrong. In such circumstances an appeal should not be allowed. None of the points mentioned in this paragraph were touched on by the Court of Appeal in this case.
Finally, where is any reference to the views of the children, who were aged 13, 9 (twins), 6 and 3 (see eg Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24)? Peter Jackson J had their views. The Court of Appeal – it seems – took no real account of those views.
The Court of Appeal were wrong to interfere; and if they wished to do so, they should have received – perhaps from a children’s guardian – the views of the older children. What did they want?
Hi David,
We don’t think we’ve expressed a view on whether Jackson LJ or the Court of Appeal were right here, we’ve merely tried very briefly to summarise why the appeal was allowed. When we talk about the discrimination matters we were referring to paragraph 78 of the judgment, where the Court of Appeal set out the second of four reasons for allowing the appeal.
We said ‘…the Court of Appeal overturned that decision, saying that Jackson J had been wrong to allow the predicted unlawful and discriminatory behaviour of the ultra-orthodox community to dictate the question of contact’
The Court of Appeal said : ‘we are bound to say it is very unfortunate that the judge did not address head on the human rights issues and issues of discrimination which plainly arose. His judgment recites though largely without analysing (judgment, paras 44-51, 53-56) various Convention and statutory provisions to which the father in particular had referred. But apart from the passages we have already set out, the judgment says virtually nothing else about these vitally important issues – no doubt, in this respect, reflecting the limitations of the arguments that had been addressed to the judge. This is a matter we return to below.’
So whilst you are correct to say that the Court of Appeal didn’t decide on the issue of discriminatory conduct by the community / institutions they did say that Jackson J didn’t deal with it adequately. We’ve amended the text of our post to reflect that.
Hi David, the TP reported on the CA decision. We didn’t say that our view was that the CA decison was right and Peter Jackson J was wrong. It’s a very complex case and our post was a brief update only.