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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M (Children), Re  EWCA Civ 2164 (20 December 2017)
Cite as:  2 FLR 800,  EWCA Civ 2164,  3 All ER 316,  2 FCR 559,  4 WLR 60,  WLR(D) 165
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ON APPEAL FROM THE FAMILY COURT
Sitting at Manchester
Mr JUSTICE PETER JACKSON
 EWFC 4
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE SINGH
|In the matter of M (Children)|
Mr Peter Buckley (instructed by Steinbergs Solicitors) for the respondent mother
Ms Frances Heaton QC and Ms Jane Walker (instructed by Alfred Newton Solicitors) for the children's guardian
Ms Karon Monaghan QC and Ms Sarah Hannett (instructed by Baker & McKenzie LLP) filed written submissions on behalf of the first intervener Stonewall Equality Limited
Ms Jane Rayson and Mr Andrew Powell (instructed by A City Law Firm) filed written submissions on behalf of the second intervener Keshet Diversity UK
Hearing date : 15 November 2017
Crown Copyright ©
Sir James Munby, President of the Family Division :
The case in outline
"unlawful discrimination against and victimisation of the father and the children because of the father's transgender status (emphasis added)."
"The children will suffer serious harm if they are deprived of a relationship with their father."
"Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father."
Then (para 181):
"I reject the bald proposition that seeing the father would be too much for the children. Children are goodhearted and adaptable and, given sensitive support, I am sure that these children could adapt considerably to the changes in their father. The truth is that for the children to see their father would be too much for the adults."
And then this (para 187):
"So, weighing up the profound consequences for the children's welfare of ordering or not ordering direct contact with their father, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact (emphasis added)."
"These Minutes are of interest. Not having been prepared with these proceedings in mind, they illustrate the prevailing mindset. There is at least as much concern for the community as for the children. The father was entirely ignored."
The other matter relates to something which the judge referred to (para 36) as an example of the high level of tension surrounding the proceedings:
"In November , on the first morning of the hearing, an unidentified member of the community posted this WhatsApp message:
Family [name]'s (A Mother & her 5 Children) fate is in court this morning (for the next 10 days). Please Daven [pray] for them. We can't afford to lose this case. The Rabbonim [rabbis] have asked for this message to be sent. The family know and want it to be sent. Pls forward this message. The koach of tefilloh [power of prayer] can achieve everything.""
"73 The mother described the father as having been "severely ostracised" by the community. She had no other experience of the reaction of the community to transgender or homosexual people, but described the problems for a neighbour's children when their mother wanted to leave the religion and the consequences when one of her female cousins began to deviate in her style of dress. She said that she was very aware that the schools must uphold British values, but that "the parent body are the school". Respect must be shown for people, no matter who they are, but at the same time the ethos of the school must be upheld, no matter what. Transgender is extremely alien to the community and against religious law. As for homosexuality, young children are not faced with it. As she put it: "I uphold the British law within our faith." If there is a conflict between law and faith, she would follow her faith, though she would not commit a crime. The present circumstances put her in a very difficult position.
74 The mother said that there is no way that direct contact will work out for the children, for their identity, for their culture and for their whole environment. She said this, even though she knew that she and the children are entitled to legal protection against victimization. The schools would probably not throw out the children, but the environment would become hostile. The parent body would not allow their children to play with the children, and no one can tell others how to bring up their own children. "They will protect their children from contact. They wouldn't want my children to suffer and will have every sympathy, but their own children will come first." The children's next schools would not have to take them, and could just say they were full. "Are we going to get the whole community to tell them off?" The mother can see the children being rarely invited to family events and festivities because people would be nervous about what they would say. There would be extreme supervision and the children's participation would be kept at a very basic level. Already, A is being asked questions and is reluctant to commit himself fully within his peer group. This, said the mother, is "the reality it's who we are"."
"108 Mrs S, who clearly has a close knowledge of the workings of the community, described its unhappiness at children being fostered outside the community, though it acknowledged that she was a preferable carer to any of the available alternatives.
109 Mrs S provided two striking instances of the way in which children exposed to 'outside influences' will be ostracised. In 2015 Child A, a 15-year-old girl who had been sexually abused in the community was placed in her care. The girl was not invited to Hanukkah gatherings by her classmates. When Mrs S challenged the mother of one of the girl's close friends about this, she explained that she could not risk her daughter hearing about "things" as children in the community were kept innocent and sheltered. When Mrs S described the distress that these actions were causing, the mother did invite the girl to her house, but only under strict supervision. The child lost her best friend and all her childhood friends. She now attends a different school and has absolutely no association with her former social circle.
110 Mrs S spoke of Child B, whom she had fostered from another ultra-Orthodox community. The child, aged 14, had been sexually and emotionally abused within her family and the wider community since the age of 11. She had made statements to her school about her abuse. The response had been to put her on a plane out of the country and invent a story to explain her absence. When she was returned to the country and placed in foster care, "all hell broke loose". Mrs S said that she personally had a broad set of shoulders but that it had been a struggle to protect the child at the beginning. She was rejected by her family and no longer allowed to talk to friends. As Mrs S put it, "It's the knowledge that is the issue."
111 Mrs S freely described these as "awful case studies", which she related to assist the court to understand that this response was the norm where religious culture, identity and laws are breached. She said that they were not "standout cases". At the beginning of her fostering career, they would have had her "up in arms", but she now saw this behaviour as being unchangeable by local authorities, foster carers, courts and the law. "They will find a way around it.""
Of the cases described by Mrs S, the judge said this (para 178(3)-(4)):
"The cases of Child A and Child B, described by their foster carer Mrs S, show the lengths to which the community is prepared to go, regardless of the justice of the matter or the welfare of the young people They are clear examples of discrimination and victimisation (there is no other apt description) in cases that did not raise anything like as problematic a challenge to community attitudes as the present case (emphasis added)."
"91 Rabbi Oppenheimer describes Charedi communities as "warm, close-knit and supportive communities for which the teachings of Torah Judaism guide all aspects of their lives The teachings of the Torah also highlight integrity, respect for others, peace and justice (including respect for the law of the country) and place the family and its welfare at the heart of life Allegiance to the lifestyle means of necessity that members have traditional values and seek to guard their children and themselves against what they regard as the dangers and excesses of modern open society."
92 Rabbi Oppenheimer was clear that transgender and procedures to achieve sex change violate a number of basic principles in Torah Law, including the prohibition against castration (Leviticus 22.24) and the prohibition against wearing garments of the opposite sex (Deuteronomy 22.5)."
"95 In regard to the attitude of the community, Rabbi Oppenheimer writes:
"Where a person decides to take action likely to be irreversible to transgender, Ultra-Orthodox community members will invariably take the view that, by embarking on that course, the transgender person has breached the contract which they entered into when they married their wife to observe the Torah and to establish and bring up a family in accordance with its laws. Furthermore, members of the community will naturally wish to protect themselves and their families from any discussion of the painful issues involved, especially bearing in mind the sheltered position of the community from the standpoint of open society. Knowledge of transgender amongst children in the Ultra-Orthodox Jewish community is almost non-existent, for the reasons mentioned above concerning their lack of access to Internet and the media. There is no known precedent in the UK of a transgender person being accepted living in an Ultra-Orthodox community.
The result will be that community members will expect the family of the transgender person to limit their contact with him or her as far as possible. If the family of the transgender person nevertheless seeks, or indeed is forced, to maintain contact with that person, they will open themselves up to very serious consequences indeed. The families around them will effectively ostracise them by not allowing their children to have more than the most limited contact with that family's children. The impact on the family in such circumstances in terms of social isolation will be devastating.
In considering the best interests of the children the obvious conclusion from the discussion above is that the children of an Ultra-Orthodox union cannot and should not be expected to have any direct contact with the father in such circumstances. It will no doubt be argued against this approach that it is cruel, lacking in tolerance, unnecessary and denies the rights of the father. But Torah law (Halacha) has the same approach to English Family Law in this type of situation, regarding issues of residence and contact, that the interests of the children are paramount. In other words the father is expected to give precedence to the needs of the children over his own needs."
96 In his oral evidence, Rabbi Oppenheimer remarked that "ostracise" was perhaps not the best word to use for a process that would not be organised but more subtle and inevitable "it would be so much more"."
"He asserted that under the Torah and in reality a person is considered to have a choice, albeit a difficult one, as to whether they become transgender. If they do, they choose to place themselves outside the embrace of the community. In Torah law, to be gay or transgender is to be a sinner. Even though it may be looked on with compassion, and some people may extend the hand of friendship, that does not alter its unacceptability. The mother could not remain married to a person who made that decision. She should still seek in a constrained way to promote respect for the father but at the same time to protect the children from the consequences until they are old enough to deal with them. Young people cannot deal with these issues without undermining their faith. There is too much of a conflict to understand. There is therefore an obligation to protect the children from finding things out that are likely to damage them and cause them pain and suffering, likely to damage their growth and spiritual well-being. By educating children in the way of the Torah, they are brought up as upright people."
"99 Rabbi Oppenheimer explained that excluding ideas that might damage the development of children is "the price we pay we limit ordinary social contact so that we transmit our spiritual ethos to the next generation".
100 When pressed about the impact of ultra-Orthodox custom and practice in a case such as the present, Rabbi Oppenheimer replied with some warmth that this had nothing to do with emotions or feelings it was contrary to Torah law for the children to be exposed to transgender. Further pressed as to the basis for this assertion, the Rabbi fell back upon the overriding consideration in Leviticus to be holy and to separate oneself from anything contrary to the Torah.
101 Indirect contact, on the other hand, would not, he thought, give rise to such a risk of ostracism, as it would not enable the children to have "a living relationship"."
"179 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.
180 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."
"Rabbi Abel emphasised the central importance of honouring one's parents within Jewish law and tradition. He said that there is scarcely any circumstance in which the obligation to honour one's father does not apply. Even if the father is an outright sinner, which is not in his view a consideration in this case, the obligation persists. He considered this aspect of the matter to have been left untreated by Rabbi Oppenheimer.
In relation to transgender, Rabbi Abel considered that there is a plurality of opinion and that the biblical position may be qualified. He contends that there is no valid reason why any person should plead ultra-Orthodox faith as a reason to disenfranchise a person in the position of the father. "There is no legitimate reason to maintain that children who are transgender-parented cannot experience in the ultra-Orthodox community a full and satisfying Orthodox Jewish life, physically, spiritually, emotionally and communally." On the contrary, there is every reason to reunite parent and child as it is the well-being of the nuclear family and not the social preferences of the wider community that truly matter. He points to commentary by the noted encyclopaedist, the late Rabbi Waldenberg, in support of his contention that Orthodox Judaism, correctly understood, recognises the existence of, and to a certain extent accommodates, a number of non-binary identities, including transgender. He argues that the transgender issue cannot be ignored and that parents' relationships with their children are inalienable."
"Rabbi Abel objected to the concept (introduced by Rabbi Oppenheimer) of the faith as a club from which people could be ejected, though he observed that this evidently happens. An approach of this kind, practically amounting to a belief, raises itself to the surface, usually in worst-case scenarios. This is a social cultural reality, not a valid Orthodox reason for separating children from parents. There is a lamentable habit of censoring. Children of divorced parents can be seated separately from other children and he had experience of this, something he described as beggaring belief. In his view, this should not be accommodated or excused in Jewish or English law. On the other hand, he had never heard of total ostracism in practice, provided the contentious matter was treated privately within the family, and not paraded before the community. However, he accepted that ostracism for these children could very possibly happen if the situation was not managed correctly with professional help. What was needed was psychological support: religious teachers should be kept out of it.
The Rabbi accepted that the present circumstances would be a challenge to the insular North Manchester community. He argued that when it comes to matters of life and death, you have to break free and seek to work with the unfamiliar problem. He gave as an example creative arrangements that might be made to allow the father to participate in A's bar mitzvah. There are ways, and it can happen if there is a will. The issues are significant, but not insurmountable. The community is not monolithic, but multifarious. It will step back if proper arrangements are made by both parents. If the situation is unregulated, the community will take matters into its own hands. If direct contact was ordered, and the law laid down, he did not think that the community would "go to the wire" fighting an unwinnable battle."
"Their recommendation is that the younger children are provided with a narrative in age-appropriate stages to help them to understand their father's departure and transgender identity. They recommend that children have an exchange of letterbox contact with their father three times a year. They do not recommend any direct contact."
He added this (paras 116-117):
"In their report, Dr Morris and Ms Henry write: "In our opinion, it is essential that the cultural context in which they live is taken into account when thinking about children's emotional, development, social and educational needs. If the children run the risk of being denied places at good schools and Yeshivas and are being shunned and ostracised by their peers and other members of the community, this will have a negative impact on how they function in the widest possible sense both now and in the future."
117 They emphasised that they had found this a very difficult recommendation to make, and that they had reached it on a very narrow balance. In this binary (contact/no contact) situation, there is no good solution, and they have chosen the outcome that brings least harm to the children. This conclusion is substantially based on the premise that the children would be ostracised by the community if they had direct contact. If the premise is found to be incorrect, their recommendation would probably be different."
"130 The Guardian identifies the risks to the children's well-being arising from the loss of such a significant person, but considers that the greater risk arises from their potential exclusion from their way of life. "These children had no choice [about] what community they were born into, and what faith they should follow. These were choices made by their parents. They are enveloped into the Orthodox Jewish way of life, and the loss of such could cause such instability that I am unable to identify any interventions that could be offered to promote resilience."
131 In her second report, noting the conclusions of the Anna Freud Centre, the Guardian maintained the same position. She recommended a Family Assistance Order to accompany the delivery of the narrative to the younger children, which should be communicated within 12 months, and the commencement of indirect contact.
132 In her oral evidence, the Guardian said that her recommendation had never felt satisfactory for children of this age. She had desperately searched for a different solution and had continued to question herself about it up to the moment of giving evidence. Her two reasons for maintaining her view were (1) the risk that the children would be ostracised and placed in conflict with their identity as members of the community; and (2) some continuing concerns about the father's insight and ability to prioritise the emotional needs of the children and engage in the advice that would be offered. Both of these are significant factors for her.
133 Looking at life through the children's eyes, exclusion from the community would change everything beyond recognition. This would not be compensated for by the benefits of contact, and they may instead feel resentment towards their father. Denial of contact is not, the Guardian said, a good outcome, but it is the least harmful option in an extreme and very finely balanced situation."
"156 The children will suffer serious harm if they are deprived of a relationship with their father.
157 The children would suffer serious harm if they were excluded from the normal life of the community."
"162 I find this a very troubling case. These children are caught between two apparently incompatible ways of living, led by tiny minorities within society at large. Both minorities enjoy the protection of the law: on the one hand the right of religious freedom, and on the other the right to equal treatment. It is painful to find these vulnerable groups in conflict.
163 A great deal of time has been spent at this hearing on consideration of the laws and customs of the ultra-Orthodox community. This is natural, given that it is the community within which the children live. However, Ms Ball QC and Ms Mann for the father argue that one must not look only through an ultra-Orthodox lens. I agree. Despite its antiquity, Jewish law is no more than 3,500 years old, while gender dysphoria will doubtless have existed throughout the 120,000 years that Homo sapiens has been on earth. Both sides of the question must therefore receive careful attention.
164 Faced with this intractable problem, it is not for the court to judge the way of life of the ultra-Orthodox Jew or of the transgender person. The court applies the law, and in this case its task is to identify the outcome that best upholds the children's welfare while minimising so far as possible the degree of interference with the rights of all family members.
165 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."
" the father's approach to contact would not be a reliable, static factor. It would be a variable amongst other variables. I share the view of the Anna Freud Centre and the Guardian that this must be taken into account when considering children's welfare. It speaks for caution, but no more than that, and if it were the only obstacle to direct contact, it could probably be overcome."
"Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father. I say "driven" because I began the hearing with a strong disposition to find that a community described by Rabbi Oppenheimer as "warm, close and supportive" and living under a religious law that "highlights integrity, respect for others, justice and peace" could tolerate (albeit without approval) these children's right to and need for a relationship with their father. The evidence that was available before the hearing contained dire predictions, but no actual examples of ostracism. I pointed this out, and this led to a number of new statements being gathered, including significant evidence from the foster carer, Mrs S."
"(1) It does not depend upon any view of what Jewish law is in relation to transgender, but upon what the community is likely to think it is and act upon. It may be that the humane and progressive views of Rabbi Abel and Mr Bernard will one day gain acceptance in the ultra-Orthodox communities, but I consider that in the present day the community in which the children live and go to school will, rightly or wrongly, defer to the stance described by Rabbi Oppenheimer and the authorities he cites.
(3) The cases of Child A and Child B, described by their foster carer Mrs S, show the lengths to which the community is prepared to go, regardless of the justice of the matter or the welfare of the young people (emphasis added).
(4) I cannot distinguish these cases in the way suggested by Ms Ball. They are clear examples of discrimination and victimisation (there is no other apt description) in cases that did not raise anything like as problematic a challenge to community attitudes as the present case (emphasis added).
(5) There is a consistent account from all those within the community of how it will behave
(6) The father [and his witnesses] all accept to a substantial degree that this is what the community is like. Their thesis is that it can be managed or made to change.
(7) There is, to say the least, evidence that the practices within the community, and in particular its schools, amount to unlawful discrimination against and victimisation of the father and the children because of the father's transgender status (emphasis added). However, the fact that the practices may be unlawful does not mean that they do not exist.
(8) I was particularly impressed by the evidence of Mrs S, an informed outsider, who compellingly described the reaction of the community to situations of which it disapproves.
(9) I was also struck by Rabbi Oppenheimer's unyielding defence of the religious and social position as illustrating the stance that can be taken by educated persons.
(11) There is no evidence that any person in a position of authority or influence within the community wishes to challenge the behaviour of its members, still less that significant change could be expected within these children's timescale.
(12) In these circumstances, I do not consider that there is any real prospect of a court order bringing about a beneficial alteration in the attitude of the community towards this family, even to the extent of some relatively limited normalisation of approach. This must be a subject for regret, not only for this family, but also for others facing these issues in fundamentalist communities, for whom this will be a bleak conclusion. However, these considerations cannot deflect the court's focus from the welfare of these five children."
"182 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.
183 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 "a negative impact on how they function in the widest possible sense both now and in the future"."
"These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education. It is not to be forgotten that children have the right to preserve their identity (UNCRC Art.8), something that is a matter of particular pride to these children. Contact carries the clear risk that the children and their mother will become the next casualties in a collision between two unconnecting worlds. The father has already experienced the consequences of that collision, and no one knows better than she does how very painful they can be."
"I have (as required by Re C [Re C (Direct Contact: Suspension)  EWCA Civ 521,  2 FLR 912, para 47]) grappled with all the available alternatives, viewing deprivation of contact as a last resort that can only be contemplated when it is clear that the children will not benefit from it."
"187 So, weighing up the profound consequences for the children's welfare of ordering or not ordering direct contact with their father, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.
188 I therefore conclude with real regret, knowing the pain that it must cause, that the father's application for direct contact must be refused. I will instead make an order for indirect contact. I see no reason why this should not take place four times a year for each child, perhaps coinciding with their birthdays, and with Pesach, Sukkot and Hanukkah: I invite submissions on the detail. I will make a Family Assistance Order for 12 months, addressed to Cafcass so that [the guardian] can support the introduction of indirect contact and oversee the process of creating the narrative. The Anna Freud Centre has offered to advise on the terms of the narrative
189 This outcome is not a failure to uphold transgender rights, still less a "win" for the community, but the upholding of the rights of the children to have the least harmful outcome in a situation not of their making."
"In light of the issues which have arisen since the 2nd February, it seems inevitable that a further substantive hearing is required, whatever the outcome of this appeal. Therefore the [guardian] questions the proportionality of this appeal at this stage."
Whilst readily accepting the premise we do question the conclusion. If the order made by the judge has already so broken down, that might be thought to raise at least a question as to whether his order was right.
The grounds of appeal
i) In his careful survey of the wide constellation of cultural and religious concerns, the judge ultimately lost sight of the paramountcy principle.
ii) The judge failed to evaluate why indirect contact and the giving of narratives to the children about their father's transgender status was in the children's best interests and direct contact was not.
iii) The judge failed to exhaust the court's powers to attempt to make direct contact work.
The mother disputed each of these propositions and submitted, in substance, that Peter Jackson J, having directed himself correctly, had come to a conclusion which was open to him on the totality of the evidence and with which this court could not properly interfere. The children's guardian adopted essentially the same stance as the mother.
The law: family law
"When a court determines any question with respect to the upbringing of a child the child's welfare shall be the court's paramount consideration."
That the ultimate question for the court is the child's welfare is a principle with its roots deep in the nineteenth century: see J and Another v C and Others  AC 668. That the child's welfare is paramount is a principle established early in the twentieth century. The first reported usage of the word is to be found in the judgment of Farwell J in F v F  1 Ch 688, 689:
"The Court in considering the question of guardianship has regard before all things to the infant's welfare; it has regard, of course, to the rights of the father and the mother, but the essential requirements of the infant are paramount."
By 1924 the principle was treated as well established: Ward v Laverty  AC 101. Since 1925 it has been enshrined in statute: see, successively, section I of the Guardianship of Infants Act 1925, section 1 of the Guardianship of Minors Act 1971 and, now, section 1(1)(a) of the Children Act 1989.
"If the reasonable man or woman is receptive to change he or she is also broadminded, tolerant, easy-going and slow to condemn. We live, or strive to live, in a tolerant society increasingly alive to the need to guard against the tyranny which majority opinion may impose on those who, for whatever reason, comprise a small, weak, unpopular or voiceless minority. Equality under the law, human rights and the protection of minorities, particularly small minorities, have to be more than what Brennan J in the High Court of Australia once memorably described as 'the incantations of legal rhetoric'."
"26 'Welfare' extends to and embraces everything that relates to the child's development as a human being and to the child's present and future life as a human being. The judge must consider the child's welfare now, throughout the remainder of the child's minority and into and through adulthood. The judge will bear in mind the observation of Sir Thomas Bingham MR in Re O (Contact: Imposition of Conditions)  2 FLR 124 at 129, that:
' the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems.'
That was said in the context of contact but it surely has a wider resonance
27 Evaluating a child's best interests involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations. Everything that conduces to a child's welfare and happiness or relates to the child's development and present and future life as a human being, including the child's familial, educational and social environment, and the child's social, cultural, ethnic and religious community, is potentially relevant and has, where appropriate, to be taken into account. The judge must adopt a holistic approach "
"79 What in our society today, looking to the approach of parents generally in 201, is the task of the ordinary reasonable parent? What is the task of a judge, acting as a 'judicial reasonable parent' and approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children? What are their aims and objectives?
80 In the conditions of current society there are, as it seems to me, three answers to this question. First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Secondly, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child's own aspirations Thirdly, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead what kind of person they want to be and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child's opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a 'judicial parent', is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child's ability to make such decisions in future."
"35 Religion whatever the particular believer's faith is not the business of government or of the secular courts, though the courts will, of course, pay every respect to the individual's or family's religious principles The starting point of the common law is thus respect for an individual's religious principles, coupled with an essentially neutral view of religious beliefs and a benevolent tolerance of cultural and religious diversity.
36 It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are 'legally and socially acceptable' (Purchas LJ in Re R (A Minor) (Residence: Religion)  2 FLR 163 at 171) and not 'immoral or socially obnoxious' (Scarman LJ in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239 at 244) or 'pernicious' (Latey J in Re B and G (Minors) (Custody)  FLR 134 at 157, referring to scientology)."
"39 Within limits the law our family law will tolerate things which society as a whole may find undesirable. A child's best interests have to be assessed by reference to general community standards, making due allowance for the entitlement of people, within the limits of what is permissible in accordance with those standards, to entertain very divergent views about the religious, moral, social and secular objectives they wish to pursue for themselves and for their children
43 Some manifestations of religious practice may be regulated if contrary to a child's welfare. Although a parent's views and wishes as to the child's religious upbringing are of great importance, and will always be seriously regarded by the court, just as the court will always pay great attention to the wishes of a child old enough to be able to express sensible views on the subject of religion, even if not old enough to take a mature decision, they will be given effect to by the court only if and so far as and in such manner as is in accordance with the child's best interests. In matters of religion, as in all other aspects of a child's upbringing, the interests of the child are the paramount consideration."
" there is a great risk, merely because we are dealing with an unpopular minority sect, in overplaying the dangers to the welfare of these children inherent in the possibility that they may follow their mother and become Jehovah's Witnesses. Of course, most of us like to play games on Saturdays, to go out to children's parties and to have a quiet Sunday some of us will go to church, and some of us will not. This appears to be the normal and happy, even though somewhat materialistic, way of life, accepted by the majority of people in our society. It does not follow, however, that it is wrong, or contrary to the welfare of children, that life should be in a narrower sphere, subject to a stricter religious discipline "
" Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.
Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare.
There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.
The key question, which requires 'stricter scrutiny', is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.
All that said, at the end of the day the welfare of the child is paramount; 'the child's interest must have precedence over any other consideration.'"
" judges should be very reluctant to allow the implacable hostility of one parent (usually the parent who has a residence order in his or her favour), to deter them from making a contact order where they believe the child's welfare requires it. The danger of allowing the implacable hostility of the residential parent (usually the mother) to frustrate the court's decision is too obvious to require repetition on my part."
Discussion: family law
"In any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order with respect to the child if the court considers that the order should be made even though no such application has been made."
"If it really were the case that the father was at risk of serious threats to his person and home, that might be a very different matter, though it is not easy to see why the appropriate remedy for such threats should be the adoption of A rather than the provision of suitable security arrangements."
"42 Some aspects of even mainstream religious belief may fall foul of public policy 
43 Some manifestations of religious practice may be regulated if contrary to a child's welfare In matters of religion, as in all other aspects of a child's upbringing, the interests of the child are the paramount consideration."
Thus, para 44:
"The tenets and faith of Jehovah's Witnesses will not prevent the court ordering a child to receive a blood transfusion, even though both the parents and the child vehemently object: see, for example, Re E (A Minor) (Wardship: Medical Treatment)  1 FLR 386."
Relevance of the religious views of the Charedi community in which the children live
"The starting point of the common law is thus respect for an individual's religious principles, coupled with an essentially neutral view of religious beliefs and a benevolent tolerance of cultural and religious diversity."
In Re G, this court had to consider the impact on the child of the parents' differing religious beliefs, practices or observances. By contrast, in this case, there is the added dimension that the children are, as both parents wish, living in a community of those adhering to the beliefs of a particular section of the Orthodox Jewish faith in circumstances where the father has, in the view of the community, broken the religious laws to which the community adheres. This court expresses no view on whether those religious laws have been broken. It is merely concerned with the impact on the children. This is a matter within the proper sphere of the State, whose functions are performed on this appeal by this court as the judicial reasonable parent.
Our reasons for disagreeing with the analysis of the judge
"The mother had been opposed to any contact but, having seen the professional advice, now accepts that the children should have indirect contact with their father three times a year. She opposes direct contact of any kind during their childhoods as that, she claims, will lead to the children and herself being ostracised by the community to the extent that they may have to leave it."
We have already recorded (paragraph 22 above) Rabbi Oppenheimer's views on the subject. The judge was pressed in argument (judgment, para 174) with what we think was the well-founded point, "It is not clear why indirect contact is said to be acceptable, while direct contact is not." After all, as we have observed (paragraph 21 above), the concern of the community is to shield its children from knowledge of and exposure to such matters as transgender, and to restrict its children from coming into contact with children who have such knowledge or have been so exposed. Surely, from that point of view, indirect contact must carry with it precisely the same kinds of risk as direct contact. The judge did not address the point, merely saying (judgment, para 188) that, having refused an order for direct contact, "I will instead make an order for indirect contact. I see no reason why this should not take place four times a year." We emphasise that this is not an argument against indirect contact; on the contrary, it is, it might be thought, an argument in favour of direct contact.
Equality law: the Equality Act 2010
"There is, to say the least, evidence that the practices within the community, and in particular its schools, amount to unlawful discrimination against and victimisation of the father and the children because of the father's transgender status. However, the fact that the practices may be unlawful does not mean that they do not exist."
"(1) If the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing the physiological or other attributes of sex.
(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment."
"A person (A) discriminates against another person (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
"(a) a school maintained by a local authority;
(b) an independent educational institution
(ba) an alternative provision Academy that is not an independent educational institution;
(c) a special school (not maintained by a local authority)."
"(a) in the way it provides education for the pupil;
(b) in the way it affords the pupil access to a benefit, facility or service;
(c) by not providing education for the pupil;
(d) by not affording the pupil access to a benefit, facility or service;
(e) by excluding the pupil from school;
(f) by subjecting the pupil to any other detriment."
"Religious conviction is not a solvent of legal obligation."
i) whether there would in fact be unlawful conduct even in the face of an order of the court granting the father direct contact with her children; and
ii) to what extent such unlawful conduct should be given weight in the balance to be conducted in assessing what are the best interests of those children.
Equality law: Article 14
"Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
i) First, Article 14 is not a freestanding provision. It does not provide for equal treatment by the State in all circumstances, only in the enjoyment of the other Convention rights.
ii) Secondly, Article 14 does not require there to be a breach of another Convention right before there can be a breach of it. It requires merely that the subject-matter of the case falls within the "ambit" of another Convention right. In the present case it is common ground that the subject-matter does fall within the ambit of Article 8 and, in particular, the right to respect for family life. That right belongs not only to the father but also to the children and their mother.
iii) Thirdly, the list of express grounds on which discrimination is prohibited by Article 14 is not exhaustive. The text of Article 14 makes it clear that discrimination is prohibited on "any ground such as " Furthermore, the list of grounds ends with a generic one: "or other status." Thus, the jurisprudence of the Strasbourg court, which has been followed by the courts of this country, has recognised that discrimination on the ground of sexual orientation is in principle prohibited by Article 14 even though it is not one of the express grounds listed there: see, for example, Salgueiro Da Silva Mouta v Portugal 31 EHRR 47. The Strasbourg court has also held that discrimination on the ground of transgender status falls within Article 14: see PV v Spain (App. No. 35159/09) final judgment 11 April 2011, para 30.
i) Do the facts fall within the ambit of one or more of the Convention rights?
ii) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison?
iii) Were those others in an analogous situation?
iv) Was the difference in treatment objectively justifiable? In other words, did it have a legitimate aim and bear a reasonable relationship of proportionality to that aim?
" In my view, the Michalak questions are a useful tool of analysis but there is a considerable overlap between them: in particular between whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification. If the situations were not truly analogous it may be easier to conclude that the difference was based on something other than a proscribed ground. The reasons why their situations are analogous but their treatment different will be relevant to whether the treatment is objectively justified. A rigidly formulaic approach is to be avoided."
"The question for the Court is whether the above-noted negative attitudes constitute sufficient justification or the interferences at issue.
The Court observes from the HPAT [Homosexuality Policy Assessment Team] report that these attitudes, even if sincerely felt by those who expressed them, ranged from stereotypical expressions of hostility to those of homosexual orientation, to vague expressions of unease about the presence of homosexual colleagues. To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interference with the applicants' rights any more than similar negative attitudes towards those of a different race, origin or colour."
Article 9: the right to manifest one's religion
"Freedom of thought, conscience and religion
1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
Article 9 therefore distinguishes between having an internal belief and manifesting a belief. The latter can be restricted by Article 9(2). We are concerned only with "manifestation" of a belief.
"Article 9 does not, however, protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner which is dictated by one's religion or beliefs (see, for example, Arrowsmith v UK (1978) 19 DR 5; Kalac v Turkey  ECHR 20704/92,  ECHR 37, at para 27; and Sahin v Turkey 19 BHRC 590 at paras 105 and 121)."
"Democracy and religion in the Convention system
90 For the purposes of the present case, the court also refers to its case law concerning the place of religion in a democratic society and a democratic state. It reiterates that, as protected by art 9, freedom of thought, conscience and religion is one of the foundations of a 'democratic society' within the meaning of the convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v Greece 17 EHRR 397 at para 31 and Buscarini v San Marino 6 BHRC 638 at para 34).
91 Moreover, in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone's beliefs are respected (see Kokkinakis v Greece (1993) 17 EHRR 397 at para 33). The court has frequently emphasised the state's role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. It also considers that the state's duty of neutrality and impartiality is incompatible with any power on the state's part to assess the legitimacy of religious beliefs (see, mutatis mutandis, Jewish Liturgical Association Cha'are Shalom Ve Tsedek v France (2000) 9 BHRC 27 at para 84) and that it requires the state to ensure mutual tolerance between opposing groups (see, mutatis mutandis, Metropolitan Church of Bessarabia v Moldova 35 EHRR 13 at para 123).
92 The court's established case law confirms this function of the state. It has held that in a democratic society the state may limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety (see Dahlab v Switzerland (App no 42393/98) (admissibility decision, 15 February 2001)).
While freedom of religion is in the first place a matter of individual conscience, it also implies freedom to manifest one's religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of a religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, it does not protect every act motivated or influenced by a religion or belief (see Kalac v Turkey 27 EHRR 552 at para 27).
The obligation for a teacher to observe normal working hours which, he asserts, clash with his attendance at prayers, may be compatible with the freedom of religion (see X v UK (1981) 22 DR 27,  ECHR 6 ), as may the obligation requiring a motorcyclist to wear a crash helmet, which in his view is incompatible with his religious duties (see X v UK (1978) 14 DR 234,  ECHR 3).
Article 9: submissions by the father (community not motivated by religious beliefs within Article 9)
Article 9: submissions by the mother and guardian (harm is the reality)
Conclusions on religious difference
"In matters of religion, as in all other aspects of a child's upbringing, the interests of the child are the paramount consideration."
Note 1 The case, as it happened, involved religion. A testator, who died in 1896, by his will appointed his sister guardian of his daughter, then aged eleven. The testator was a Protestant, and the infant was brought up in that faith. In 1900 the sister became a Roman Catholic. Holding that, under the circumstances, it was for the benefit of the infant that the testators sister should be removed from her guardianship, Farwell J commented, 691, that the disturbing influence arising from the sight of the guardian worshipping in a different church and consulting the priests of another faith may well be prejudicial to the wards peace of mind and secure confidence in her own religious belief. [Back] Note 2 None of this is affected in our judgment because the decision in the case was reversed by the House of Lords: In re G (Children) (Residence: Same-sex Partner)  UKHL 43,  1 WLR 2305. [Back] Note 3 Secretary, Department of Health and Community Services v JWB and SMB (Marions Case) (1992) 175 CLR 218, 277. [Back] Note 4 Westminster City Council v C and Others  EWCA Civ 198,  Fam 11, was cited as a striking example. [Back]
Note 1 The case, as it happened, involved religion. A testator, who died in 1896, by his will appointed his sister guardian of his daughter, then aged eleven. The testator was a Protestant, and the infant was brought up in that faith. In 1900 the sister became a Roman Catholic. Holding that, under the circumstances, it was for the benefit of the infant that the testators sister should be removed from her guardianship, Farwell J commented, 691, that the disturbing influence arising from the sight of the guardian worshipping in a different church and consulting the priests of another faith may well be prejudicial to the wards peace of mind and secure confidence in her own religious belief. [Back]
Note 2 None of this is affected in our judgment because the decision in the case was reversed by the House of Lords: In re G (Children) (Residence: Same-sex Partner)  UKHL 43,  1 WLR 2305. [Back]
Note 3 Secretary, Department of Health and Community Services v JWB and SMB (Marions Case) (1992) 175 CLR 218, 277. [Back]
Note 4 Westminster City Council v C and Others  EWCA Civ 198,  Fam 11, was cited as a striking example. [Back]