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Court considers children's best interests in having contact with transgender parent?

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By Sarah Cornes

A recent High Court hearing denied permission for a transgender parent to have direct contact with her children. The parents’ marriage ended in 2015 when the father left the Charedi Jewish community in Manchester to become a transgender person. The Charedi community is a highly orthodox Jewish community characterised by strict adherences to Jewish law.

The father did not have any contact with the children after she left, partly due to the community’s attitude to transgender. The father issued a court application for contact with the five children, aged between 2 and 12, pursuing an argument that she be sensitively re-introduced to the children so that regular contact could take place outside of the community.

The mother pursued the argument that the children would be ostracised from their Charedi Jewish community if they had contact with their father, which could result in them being forced to leave the community.

Mr Justice Jackson in the High Court had to consider whether it was in the best interests for the children’s welfare to have contact with their father and risk being ostracised from their community or to not allow contact with their father.

The Court promotes the relationship a child has with both parents and encourages both parents to take an active role in their child’s upbringing, as long as it is in the best interests of the child for that relationship to continue. The Court will consider the welfare checklist and where the Court has welfare concerns for a child to have contact with a parent, for example in cases of domestic violence, various risk assessment activities are conducted before the Court concludes what would be in the best interest of the child.

In this case, Mr Justice Jackson stated that the circumstances of this case gave rise to an exceptionally difficult welfare assessment. He concluded with real regret stating it was an unwelcome decision, knowing the pain it must cause that the father’s application for direct contact must be refused. He instead made an order for indirect contact meaning that a parent can have contact via telephone, internet, post etc. A court will often define the terms of the indirect contact, specifying what method and the regularity it deems appropriate in the circumstances.

Mr Justice Jackson stated that the outcome was not a failure to uphold transgender rights, but the upholding of the rights of the children to have the least harmful outcome in a situation not of their making.

The father is currently appealing the decision in the Court of Appeal.

Every case is different and will depend on the individual facts. The Court’s paramount consideration will always be the welfare of the children and the Judge will strive for an outcome based on the specific facts that it considers to be reflecting the best interests of the children.

If you have any concerns regarding contact issues with your children, please contact the Family team at TWM Solicitors who will be able to advise on this and other related matters.

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