By way of an update to our previous article, the Court of Appeal has recently overturned the previous ruling in which a transgender father was denied direct contact with her children.
In the Court of Appeal Judgement, Sir James Munby, president of the Family Division, summarised the facts of the original case, stating that “the father is transgender and left the family home in June 2015 to live as a transgender person. She now lives as a woman. Because she is transgender, and for that reason alone, the father is shunned by the North Manchester Charedi Jewish community and because she is transgender, and for that reason alone, the children face ostracism by the community if they have direct contact with her.”
In the previous High Court decision, Mr Justice Jackson stated that the practices within the community amounted to “unlawful discrimination against and victimisation of the father and the children because of the father's transgender status."
However, he did rule in what he termed an “unwelcome decision” that the children should have no direct contact with the father.
The Court of Appeal firmly rejected any notion that discrimination should be allowed in the Family Courts. It commented that the Judge must act as a “judicially reasonable parent” judging the child’s welfare by the standards of reasonable men and women in 2017, who are “receptive to change, broadminded, tolerant, easy going and slow to condemn.” The Court of Appeal stated that the High Court Judge had been premature in making an order that only allowed the father to contact her children by letter.
The Court of Appeal found that whether the father is transgender or not, she will always be the children’s father and that it is in the best interests of these children in the medium to long term to have more contact with their father. The interests of the children in the eyes of the law are so strong that the Courts must persevere. Sir Munby concluded, “never say never, the doors should not be closed at this early stage in their lives."
The exact provisions of how the direct contact will be formulated has not yet been finalised, but the Court of Appeal envisaged great assistance being provided to the children to help them come to terms with their father’s decision and to make them aware of the need to be sensitive to the views of others, including their own community, which does not allow these changes of identity within its rules.
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