J v B and Others: Welfare dictated in a religious context



The facts



Mother and father were married with five children ranging in age from 12 to 2 years old. They lived during the course of their 14-year marriage in the North Manchester ultra-orthodox Jewish community. When the relationship ended in June 2015, the father left home to live as a transgender person. The father now lives as a woman and she has had no contact with the children since she left.

The father applied for direct contact to the children on the basis that the children needed to be sensitively reintroduced to her and they should be assisted to understand her new way of life. The father stated that she should have contact outside the community and the opposition in the community should be confronted. Mother opposed direct contact but accepted that there should be indirect contact three times per year. Her case was based on the fact that direct contact would lead to her and the children being ostracised by the community to the extent that they may have to leave it.

The parents had both agreed that the children should be bought up in the community. Expert evidence was heard. The expert at the Anna Freud Centre and the children’s guardian concluded reluctantly that the benefits of resuming contact with the father would be outweighed by the harmful community reaction. They recommended indirect contact only with a course of life story work to explain the father’s departure to the children. It was accepted that the children had enjoyed a good relationship with the father and that she was committed to them. The real concern was that the children would be victimised and excluded from the community if they had contact with her. They were totally dependent on their community and their identity was completely bound up with their place in the community.

Judgment



The judge concluded that on the face of it, all the children would have wanted to have a relationship with their father. The judge met with the eldest child who stated that he did not wish to have contact with his father. The judge held that this was not a rejection, but a calculation based on the child’s understanding of the family’s circumstances and complicated by his feelings of responsibility for his mother and siblings. The physical, emotional and educational needs of the children were dictated by the fact that the children needed to feel safe and secure in the community of their birth. They identified unconditionally with the cultural and religious ways of their community upon which they were wholly dependent.

Whilst they would suffer serious harm if deprived of a relationship with their father, they would also suffer serious harm if excluded from their community. The mother needed to be able to parent the children without being overwhelmed by her own emotional needs. The judge had to identify an outcome which best upheld the welfare principle whilst minimising as far as possible the degree of interference with the rights of all family members. Having balanced the arguments on both sides, the Judge concluded that the central question was the reaction of the community, namely rejection, if the children were to have direct contact with their father. Accordingly, he ordered that there should be indirect contact with the father three times per year together with life story work.

Comment

This case shows an insightful analysis where the judge balanced the rights of a transgender person and the importance of contact in this context, as against the needs of the children to be accepted by the community in which they were born and which was their chosen way of life (chosen by both mother and father).

JUDGMENT APPROVED FOR PUBLICATION

[2017] EWFC 4







30 January 2017

Before:





MR JUSTICE PETER JACKSON

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Between:



J

Applicant



– and –





B





– and –





The Children

Respondents

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Alison Ball QC and Sara Mann (instructed by Morecrofts) for the Father

Peter Buckley (instructed by Steinbergs Solicitors) for the Mother

Jane Walker (instructed by Alfred Newton Solicitors) for the Children







Hearing dates: 29‐30 November, 7‐9 December 2016, Judgment date 30 January 2017

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JUDGMENT:



J v B (Ultra‐Orthodox Judaism: Transgender)







IMPORTANT NOTICE



This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the family members must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.