Mr
Justice
Peter
Jackson:
Introduction
- These proceedings concern five children, their parents, and their community.
- The children are A (a
boy
aged 12),
B
and C (twin
boy
and girl, aged 8), D (a
boy
aged 5) and E (a girl aged 2).
- Their parents' marriage ended in
June
2015, when their father left home to live as a transgender person. She now lives as a woman and has had no contact with the children since she left. I will for the most part use the feminine pronoun when speaking of her, although her outward identity was of course male when she was at home and she retains that identity in the minds of the children, and indeed in the mind of the community.
- The community is the North Manchester Charedi
Jewish
community. The reason why the father has had no contact with the children is to
be
found in the attitude of the community to people in her position.
- The father's application was issued in
January
2016. The children were
joined
as parties in February and in
June
the case was transferred to High Court level. The final hearing took place
before
me in November/December over the course of five days, with
judgment
being
reserved.
- Evidence was given
by
the parents,
by
five witnesses in respect of
Jewish
law and customs,
by
Dr Emma Morris and Ms
Judy
Henry (
jointly
instructed experts from the Anna Freud Centre), and
by
the Children's Guardian.
- After the evidence was heard, I had a meeting with 12-year-old A.
- The father's case is that she should
be
sensitively reintroduced to the children, who should
be
helped to understand her new way of life and allowed to enjoy regular and significant contact with her outside the community. The opposition of the community should
be
confronted and faced down.
- 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.
- The Children's Guardian and the Anna Freud Centre conclude
by
a narrow margin and with evident reluctance that the
benefits
to the children of resuming contact with their father would
be
outweighed
by
the harmful community reaction that would
be
visited
upon the family. They recommend indirect contact only, with a course of life story work to explain the father's departure to the children.
- These circumstances give rise to an exceptionally difficult welfare assessment. I approach matters in this sequence:
- Assessment and conclusion
Terminology
- Charedi: This describes a number of groups within Orthodox
Judaism
characterised
by
strict adherence to
Jewish
law and distancing from modern secular culture. Members are sometimes referred to as Chassidic, strictly Orthodox or
ultra-Orthodox.
There are about 50,000 Charedim in the United Kingdom, mainly congregating in North London, North Manchester and Gateshead. Community members live at close quarters with each other.
Visiting
the home of the mother and children in this case, the Guardian said this:
"The children live in a community that appears to function in isolation from others despite it
being
in the centre of a diverse geographical area of Manchester. The houses surround a
village
green, and having sat on several occasions, I have observed only
Jewish
families engaged in their everyday routines. However as near as around the corner the population is
varied
and diverse."
- Halacha:
Jewish
Law, regarded
by
Orthodox
Jews
as deriving from the Torah (centrally the Pentateuch, the first five
books
of the
Bible),
and the collection of rabbinical writings contained in the Talmud. For a Charedi family (as explained in Re G (Children) [2012] EWCA Civ 1233),
Jewish
law governs
behaviour
in the realms of food, dress, education, speech, communal responsibility, respect for elders, religious education, culture and heritage. Outwardly
visible
manifestations of the community's observance include, for men,
beards
and long hair at the sides and the wearing of the kippah; and, for women, covering the hair in public, frequently
by
wearing a wig, and the wearing of modest dress. Access to television, to the mass media, and to the internet or social media is not permitted.
- Gender dysphoria:
Based
on the Greek (dys-phoria: hard to
bear),
this is the medical term for the condition in which a person who has
been
assigned one gender at
birth
on the
basis
of their physical sex self-identifies as
belonging
to another gender. People who experience gender dysphoria are in no way mentally ill,
but
they often suffer great stress from hiding their identity.
- Transgender: This describes people whose gender identity differs from their
birth
sex, including transsexual people (those who intend to undergo, are undergoing or have undergone a process of gender reassignment to live permanently in their acquired gender). There is no official figure for the number of transgender people,
but
international research suggests that up to 1% of the population may experience some form of gender incongruence. In the UK, it has
been
estimated
by
the gender identity charity GIRES that 130,000 people (0.2% of the population) are sufficiently affected to have considered medical intervention, and of these 15,000 are actually receiving treatment.
- Gender reassignment/transitioning: The complex and protracted process of altering one's
birth
sex. This includes some or all of the following cultural, legal, and medical adjustments: telling one's family, friends, and/or co-workers; changing one's name and/or sex on legal documents; hormone therapy to create the physical characteristics of the other gender; and possibly some form of surgery.
Narrative of events
- These parents, who are now in their 30s, come from
very
large Charedi families. The mother's family is mainly to
be
found in the UK, the father's in the USA. Their marriage in 2001 was an arranged marriage, celebrated
both
civilly and religiously, and the five children were
born
between
2004 and 2014. The family has lived at the heart of the North Manchester community, within which the mother has a large number of family members.
- The older children attend single-sex faith schools. A is now in his second year in secondary school and will celebrate his
bar
mitzvah in 2017.
B
and D attend the
boys
primary school previously attended
by
A. C attends a girls' primary school, where E would
be
expected to
join
her.
- The mother has taught since the early years of the marriage, and currently works at the school attended
by
C; the father has only worked more recently, and that part-time. It is clear that the father was much at home and fully involved with the children,
but
I am of the
view
(having considered amongst other things, reports from the schools, including one school that has employed
both
parents) that the mother has generally
been
the more organised and energetic parent in practical matters.
- The father claims that she was subjected to a wide
variety
of domestic abuse
by
the mother, something that is denied. The father also claims that the mother was aware from a
very
early stage in the marriage that she identified as
being
transgender. The mother does not accept this. She says that the father suffered from passing
bouts
of anxiety and depression,
becoming
worse from 2013 onwards,
but
that the father could not explain these to her. In September 2013, the police came to the home after receiving a report that the father had complained to another person of feeling suicidal.
- The parents have their own perspectives on events within their marriage.
Both
perspectives are honestly held, and it is unnecessary to choose
between
them.
- Unfortunately, during her last year at home the father confided in A about her unhappiness and desire to leave. She did not explicitly describe her gender issues,
but
did once allow A to see photographs on her mobile phone of male friends dressed as women, something she described in evidence as "dropping a hint" to him. The relationship
between
the father and A
being
a close one, this placed a heavy
burden
on the child. His schoolwork and
behaviour
deteriorated during the time
before
the father's departure and he
began
to receive counselling through his school, which continues.
- At the end of
June
2015, the father left the home and moved away from the Manchester area. The mother did not learn of the departure until she received a text message later in the day.
- The father alleges that she fled the relationship and the community
because
the environment was oppressive, and from fear of the community reaction, extending even to threats towards her life. Again, it is not necessary to reach conclusions about this.
- What is undoubtedly true is that the father's efforts to maintain contact with the children were ignored or rebuffed. She further alleges that the children were told that the reason for her absence was that she was in a mental hospital or that she had died. The mother denies this,
but
explains that, on professional advice, she told the younger children that their father was in London and not well. A's counsellor, Mr R, told him about the changes that his father had undertaken. A was
very
shocked and upset, and initially didn't
believe
him. Mr R considers that A found it 'safer'
just
to think that his father had left.
- At the time that she left, the father signed a change of name deed. She now lives as a woman and has a markedly different outward appearance to the male parent known to the children. She is considering hormone therapy and, in due course, surgery.
- When issuing her application in
January
2016, the father said that she would ideally like the children to move to live with her,
but
realised that this was not the right moment. She instead asked for
visiting
contact, leading to staying and holiday contact, including over the religious festivals in due course.
- At the first hearing of the father's application in February 2016, the mother revealed that D, then aged 4, had said at school in November 2015 that "my daddy always takes his hand and puts it in my pants". This was reported at the time
by
the school to workers at the Federation of
Jewish
Services ('the Fed'). Local authority children's services were
briefly
involved,
but
the case was closed. The issue then
belatedly
re-emerged during these proceedings, after the mother discussed it with a worker at a children's centre in May or
June
2016. She says that at this point D had made a similar statement to her at
bath-time.
This led to a renewed investigation and finally in August D,
by
now aged five, was spoken to
by
police and social services. In August, he was interviewed under ABE conditions. The father was interviewed under caution and strongly denied any improper
behaviour
towards D or any of the children.
- No action has so far
been
taken
by
the police against the father. In September, the local authority completed a Children and Families assessment and closed the case. The assessment concludes that there are no concerns
because
the father is not having contact with the children. If she was, consideration should
be
given to a comprehensive risk assessment to ensure that the children were not at risk of harm. Assessments of this kind (ducking the issue) are regrettably common and are of no real
value
to the children and families concerned.
- In consequence, directions had to
be
given at a late stage in these proceedings to gather information about the investigation from all sources. This has happened, and I have read the documents and
viewed
D's ABE interview.
- The mother, without much conviction, seeks a finding that the father touched D on his private parts in a sexual manner. The father seeks a finding that she has not touched D inappropriately. The Guardian does not support the making of a finding against the father.
- I will deal with the issue now. This allegation would not have
been
pursued
by
anyone if this hearing had not
been
taking place. It has not played any significant part in the hearing or in the professional assessments. Such statements as D has made are weak and contradictory and the process of investigation has
been
unsatisfactory from start to finish. Having reviewed all the evidence, I conclude that there is no credible evidence that the father has
behaved
in a sexual manner towards D or any of the other children. So far as this court is concerned, that is an end of it.
- Returning to the narrative, in April 2016 a meeting was held within the community. It described itself as a "Team around the children meeting". It was attended
by
the head teachers of the three schools,
by
A's counsellor Mr R, and, representing the mother,
by
her
brother
M and sister E. It was chaired
by
Mrs K, a community organiser. The meeting took place without reference to the father. The Minutes state under "
Background":
"Whilst every family
breakdown
is difficult for children, all had felt it was
valuable
to discuss the additional complexities in the specific case which involves transgender within the strictly Orthodox
Jewish
community.
By
sharing information across school, housing association and family, the schools hope to identify concerns and collaborate around action points."
Under "Specific issues":
- Sudden change in children's lives with father leaving – sudden departure with little explanation having
been
given to the children.
- Identifying risks to children's emotional and spiritual well-
being
due to family
breakdown,
loss of 'identity', conflict with faith and social norms.
- Risk of children
becoming
socially isolated due to other families wishing to conform to cultural norms around age appropriate teaching of gender/sexual identity. Parents may seek to 'protect' their children from
being
exposed to information that [family name] children may start sharing about these matters.
- Managing case within the school's religious ethos. The schools have a duty to its parent
body
to uphold a religious ethos which is the premise of the school's identity. The father has made a departure from Orthodox
Jewish
practice (dress styles, transgender) and this creates a tension for the children with respect to their school and social context.
- Consider options to increase family support so that [mother] can
best
support her children to achieve academically, socially and in their emotional and spiritual well-
being."
And under "Action Plan":
- "Schools wanted to consult with Rabbinic and Educational experts on presenting information to the children in a consistent, managed and supportive way.
- Schools will closely monitor the children for
behavioural
changes and achievement.
- The family will liaise with the schools on any changes in circumstances.
- Schools will expect the children to
be
fully compliant with school rules and ethos. They will take legal advice about how they may exercise their right to preserve their ethos."
- 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.
- At the first hearing
before
me in
July,
the parties proposed to instruct a single
joint
expert on the requirements of
Jewish
law in a situation of this kind. Considering it unlikely that they would
be
able to agree upon an expert, I instead allowed each of them to call two informed witnesses to speak about matters such as the response of the community to a transgender family member. I also approved the instruction of the Anna Freud Centre to prepare a psychological assessment of the children and to advise on whether and how the children should
be
informed of the father's transition, whether they should have contact and in what form, and what support could
be
provided to the children.
- There has
been
a high level of tension surrounding the proceedings, as seen from these examples:
- In March, the father read letters written for the purposes of the proceedings
by
two of the children's head teachers and
by
A's counsellor. In response, she sent emails complaining that she was
being
persecuted and encouraged to commit suicide. She notified them of complaints to MPs, OFSTED and the counsellor's professional
body.
- At a directions hearing in
June,
the mother's
brother
M photographed the father's witness Rabbi Abel in the court
building
in a way that was felt to
be
intimidatory.
- In November, after reading the report of the Anna Freud Centre, which described conversations with A's head teacher (Rabbi C) and with the community officer Mrs K, the father sent emails to them saying that they had treated her in the same way that the Nazis had treated the
Jews.
Rabbi C responded that he would not
be
spoken to like that and that if the father wished to communicate with him, she should "
be
a mensch". The father, receiving no further response, then reported the rabbi's statements to the police.
- In November, on the first morning of the hearing, an unidentified member of the community posted this What'sApp message:
"HELP! SAVE!
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."
- The father has not so far
been
willing to give the mother a get, fearing that she might flee with the children to Israel.
The law
Domestic welfare law
- The welfare of the children, individually and collectively, is the court's paramount consideration: s1(1) Children Act 1989.
- It is to
be
presumed, unless the contrary is shown, that an absent parent's involvement in a child's life will further the child's welfare: s1(2A) CA 1989.
- Expressions of the importance of such relationships are many: for example, see Re O (A Child) (Contact: Withdrawal of Application) [2003] EWHC 3031 (Fam), [2004] 1 FLR 1258 (Wall
J):
"Unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of
both
their parents. In particular the courts recognise the
vital
importance of the role of non-resident fathers in the lives of their children, and only make orders terminating contact when there is no alternative."
- 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: Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124.
- The Court of Appeal has considered two cases concerning transgender parents: Re C [2006] EWCA 1765 and Re T [2008] EWCA Civ 85. These cases emphasise the need for children to have skilled help in learning about their father's transition so that they can adjust to the change and if possible maintain a relationship.
- Reference has also
been
made to the decisions of HHJ Rowe QC in a recent series of
judgments
concerning a Charedi family: Re X [2014] EWFC
B230;
[2015] EWFC
B237
and [2016] EWFC
B29.
In that case, the father of young children had left the North London Satmar community and was living a lifestyle with less strict observance of religious rules. The mother agreed that there should
be
some face-to-face contact. The
judgments
show the court's patience and firmness in seeking to secure a continuing relationship
between
the children and their father, despite a level of community disapproval.
- Ms
Ball
QC and Ms Mann acknowledge that the transgender issue separates this case from Re X,
but
they point to the marked impact on that family of the father leaving the
ultra-Orthodox
community, and argue that the court's approach in this case should
be
the same.
Gender recognition legislation
- A number of pieces of equality legislation protect transgender persons from discrimination and accord rights to them: the Sex Discrimination (Gender Reassignment) Regulations 1999, the Gender Recognition Act 2004, and the Equal Treatment Directive (2004/113/EC), leading to the Sex Discrimination (Amendment of Legislation) Regulations 2008. These collectively set a statutory requirement to examine whether people who are undergoing, planning to undergo, or have undergone gender reassignment treatment, were receiving recognition of their acquired or chosen gender identity and protection from discrimination in employment, and more recently, protection from discrimination in the provision of goods, facilities and services.
- Notably, the Gender Recognition Act 2004 gives transsexual people legal recognition as members of the sex appropriate to their gender, allowing them to acquire a new
birth
certificate, and according them full recognition of their acquired gender in law for all purposes, including marriage.
Equality legislation
- In the present case, this particularly relates to the children's education.
- The Equality Act 2010 makes it unlawful for a school to discriminate against, harass or
victimise
a pupil or potential pupil
- In relation to admissions
- In the way it provides education
- In the way it provides any
benefit,
facility or service, or
- By excluding a pupil or subjecting them to any other detriment.
- The Act makes it unlawful for a school to discriminate against a pupil or prospective pupil
by
treating them less favourably
because
of the protected characteristics of sex, race, disability, religion or
belief,
sexual orientation, gender reassignment, pregnancy or maternity, or to discriminate
because
of the pupil's association with someone with those protected characteristics.
- Schools with a religious character
benefit
from certain exceptions,
but
these do not permit them to discriminate on the
basis
of protected characteristics. For example, a school would
be
acting unlawfully if it refused to admit a child
because
he or she is gay, or
because
their parents are: Department for Education Advice May 2014 paragraph 2.7.
- The Education (Independent School Standards) Regulations 2014 include a curriculum obligation to encourage respect for other people, paying particular regard to the protected characteristics set out in the 2010 Act.
- In the case of
Beis
Aharon Trust
v
Secretary of State for Education [2016] UKFTT 270 (HESC); [2015] 2531 INS,
Judge
Hugh
Brayne,
sitting in the First-tier Tribunal (Health Education and Social Care), had an appeal against the Secretary of State's determination that an Orthodox
Jewish
school should cease to admit new pupils. The appeal was dismissed
because
of a number of defaults in respect of curriculum issues. Amongst these, was the obligation to encourage respect for people of different sexual orientation or those undergoing gender reassignment. As to that, the Tribunal stated at page 22:
"The school agrees it does not acknowledge to pupils, or enable them to acquire any awareness, that some people are different
because
of gender reassignment. This prevents the school from encouraging respect for people who have such characteristics. People with those characteristics play a full and equal part in
British
society and pupils are not prepared for the experience of participating in a society, where, for example, families have same sex parents, same sex people can marry or form civil partnerships or have gender reassignment."
And at page 23:
"In our
view
… a school must encourage respect in relation to each of the protected characteristics. It is no defence to say that it is incompatible with the faith of the institution, nor to argue that these are matters of sex education and no sex education is required in the standards. Nor is it a defence to point to the ages of the children. The requirement does not specify how the particular regard is to
be
promoted, and an independent school is free to determine how to do that in an age-appropriate way."
International Conventions
- The case law under Article 8 of the European Convention on Human Rights (ECHR) is summarised in Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912: (Munby LJ):
"a) Contact
between
parent and child is a fundamental element of family life and is almost always in the interests of the child.
b)
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.
c) 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.
d) The court should take a medium-term and long-term
view
and not accord excessive weight to what appear likely to
be
short-term or transient problems.
e) 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.
f) 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."
- Article 9 of the ECHR provides that everyone has the right to freedom of thought, conscience and religion. This prohibits the court from determining the
validity
of religious
beliefs
and imposes upon it a duty of neutrality and impartiality in religious matters: see Re G at paragraphs 35-38.
- Article 14 provides that enjoyment of Convention rights and freedoms shall
be
secured without discrimination on any ground. Accordingly, neither the father's transgender status nor her decision to leave the community should affect her entitlement to Convention rights or that of the children.
By
virtue
of s.6 Human Rights Act 1998, it is unlawful for a public authority, and hence a court, to act in a way which is incompatible with a Convention right. However, in cases where parents and children have competing rights of comparable substance, ECHR and domestic case law makes clear that the rights of the children will normally prevail.
- The United Nations Convention on the Rights of the Child 1989 has
been
ratified
by
the United Kingdom and has persuasive effect. In addition to the above-stated principles, Article 2 protects children from discrimination on the
basis
of the status of their parents; Article 8 provides for respect to
be
paid to children's rights to preserve their identity, including nationality, name and family relations; Article 12 provides that children who are capable of forming their own
views
shall have the right to express those
views
freely in all matters affecting them, their
views
being
given due weight in accordance with their age and maturity, and that children shall
be
given the opportunity to
be
heard in any
judicial
proceedings affecting them; Article 13 provides that children shall have the right to freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds.
The evidence
- In the unusual circumstances of this case, I will summarise the evidence in more than usual detail.
- The father spoke movingly about her predicament. From the age of six she had felt unhappy with who she was,
but
did not speak to anyone during childhood. There were some good days,
but
she experienced a consistent nagging feeling of incongruity that was
very
painful in the community setting. She could not expect any sympathy so she kept silent and prayed to God to make it go away. She had attempted to delay marriage and after it arrived discussed the problem with the mother,
but
they had
both
treated it as "a stupid, silly issue". She (the father) was
ultra-Orthodox
and her
beliefs
would not allow this. At times she was able to repress the feeling through deep religious devotion. The prospect of having to leave the marriage came up many times,
but
the mother would make threats that she would never see the children and would
be
ridiculed and shunned
by
the community. In 2006 or 2007, she called the Samaritans and from 2011
began
to speak to people outside the community. She came to realise that this was her reality, that it was not going away, and that she would have to make decisions. She twice attempted suicide
by
taking pills. Since transitioning, she had not had suicidal thoughts. In 2014, she
began
to speak to a therapist outside the community, without the mother's knowledge. In 2015, she contacted the organisation
Broken
Rainbow and they gave her the confidence to leave. She described the decision as one that ensured the children would have two living parents. While this was going on, there were no outward changes, and she continued to perform her religious observances.
- The plan to leave was formed two months
before
it was carried out. She had told A about 15 months
before
she left that she could not carry on with the marriage, and told him of her actual departure five days in advance: she was unable to countenance A
being
faced with her unexplained disappearance. She had shown him the photographs on her phone as a way of opening him up to the deeper underlying issue. In hindsight she regrets having implicated A in these ways.
- Speaking of her present
belief,
the father said that she had let go of certain elements of her religious
belief,
such as rabbis
being
the messengers of God and the attitude that anyone who is not
ultra-Orthodox
should
be
frowned upon. She nevertheless remained an Orthodox
Jew,
maintaining a kosher diet to the
best
of her ability and attending Orthodox synagogue when she could. If she cherry-picked, she would not
be
alone. There are many different groups within the community. "These are real people who live real lives like anybody else. People watch movies and do Facebook and WhatsApp; they pretend that they don't,
but
they do,
just
like everybody else." The mother was not, however, aware of the father's Facebook presence.
- Having left the community, the father had
been
subjected to threats, most recently in February
by
a man that she named and who she suspected of fostering the allegations concerning D. Her previously open relationship with the mother's
brother
M had
begun
with promises of support on the latter's part that had turned to threats. She had not
been
consulted about any issue relating to the children since leaving, for example about counselling or choice of schools. A recent offer to pay modest child maintenance had met with no response.
- The father spoke of the medical possibilities that are open to her, understandably wishing to keep her options open and private.
- She was critical of the Anna Freud Centre and A's counsellor and the Guardian for lacking deep knowledge of transgender issues, and in particular of the life-threatening nature of gender dysphoria, and also for
being
biased
in favour of the mother's good qualities and for, as she saw it, treating the mother's sister E as a third parent.
- She said that there are quite a few
ultra-Orthodox
Jews
who are gay or who experience gender dysphoria,
but
she
believes
that she is the first transgender person to have left a UK Charedi community. She said that she had never heard of anyone coming out as gay in the community and that LGBT is non-existent. "So they have to get rid of me – I have sympathy with that."
- Asked about her emails to the head teachers and Mrs K, the father expressed her admiration for them and apologised for what she accepted were offensive messages; she had sent them in a sorrowful state, finding their attitude oppressive. She did not accept that she was now emotionally tormented; on the contrary, she was feeling confident and planned in future to work with everyone. She noted that the teachers had not approached her,
but
that special arrangements have now
been
made for her to have parents' meetings outside the community.
- The father described missing the children and feeling for them. She would accept any contact arrangements that were considered suitable, including supervision and a requirement to assume, so far as possible, her previous male appearance in the early stages. Provided that she was allowed contact, the children should live with their mother. She would comply with professional guidance on how not to destabilise the children. She expressed some fleeting sympathy for the mother and her family, saying that, like A, they were probably confused and
very
angry.
- Asked about the threat of ostracism, she said that the situation had never happened
before
but
she thought that the community followed the law and would probably not disobey rules. For her own part, she would prove herself, change her ways and
be
"on the same page" with any guidelines for contact.
- Any assessment of the father must make allowances for the existential changes that she has undergone and continues to undergo. The change from living as the male head of a family with five children living in an intensely structured religious community to living as a single woman could scarcely
be
more striking; it has and will continue to take courage to see it through. There was undoubtedly an element of fragility and a certain anguished self-absorption in the father's presentation. This is entirely in keeping with her situation,
but
it is relevant to the children's welfare.
- The mother spoke about how well the children have
been
doing in their different ways. She explained how shocked she had
been
at the father's departure, so much so that she had not told her own family about it for a week. After 10 days, news of the transgender issue came out through the father's use of Facebook: she didn't leave the house for three months and had an extended period off work. Even now, with everyone aware that the father is a transgender person, she is not comfortable to
be
at public gatherings. She has received extensive support from her own family.
- The mother denied that the marriage had faced serious difficulties and said that she had no idea that it would come to an end. The father had expressed feelings of
being
unhappy in his
body
but
she did not understand. She thought it was a religious crisis, not a gender issue (she knew nothing of transgender until after the father left). From the time of E's
birth
in 2014, she noted him
becoming
secretive and less religiously observant, something that caused her deep unhappiness.
- The mother acknowledged that the father had
been
a loving father to the children. She said that she constantly tells them that their father is thinking about them and cares for them. She said that from the first moment she had made a conscious decision not to
be
"that
bad
mother that poisons children against their father. I promote good memories and challenge negatives." She accepted that the children missed their father in their different ways, although A now feels deceived. She tells the children that their father is happy and thinks of them. They think that he is in London. In summary, she is prepared to
bring
the children up to honour and respect the father that they know and love,
being
the father as he was, not the father as she is.
- The mother has
been
receiving therapy to help her to understand why the father made these changes. She described how extremely difficult she finds it to see the man that she was married to for 14 years, and with whom she had five children, appearing as a woman.
- 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.
- 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".
- The mother also has no confidence that the father would comply with any rules surrounding direct contact. She feels that the changes in the father's appearance could not
be
disguised and that the children would
be
extremely traumatised to see them. "The children live in the community we
brought
them up in, and that's where they are staying. Contact would lead to contradiction."
- The father had written one letter to the children,
but
she had not read it to them. For the future, she was agreeable to the children having some information and knowledge,
but
not to them having an active relationship with their father until they were old enough to decide for themselves, perhaps at age 18. The mother had thought hard about the children's loss of relationship with their father and concluded that the impact of them having a relationship was worse than the impact of them having no relationship. She said that if the court awarded direct contact, she would of course have to obey,
but
the existence of an order would not make any difference to the attitude of the community to letting the children mix freely. If an order was made, she is not sure whether she could stay within the community. She would have to find somewhere where the children would
be
more comfortable and
better
able to fit in with their situation. She did not like to contemplate this and is not sure that she would cope at all. It would have a terrible effect on the children, who are now happy and safe in the only environment they know.
- Like the father, the mother has
been
placed in an extraordinarily difficult position.
Both
have experienced fundamental transformations. Although the mother was already
bearing
the greater share of the parenting responsibilities, it has
been
a profound shock to find herself in the socially anomalous position of
being
a single parent, and not at a time of her choosing, compounded
by
the unprecedented difficulties arising from the father's transgender status. In common with the professional witnesses, I looked for signs of malice towards the father in the mother's evidence,
but
could find none. Instead, the abiding impression from her evidence and from that of the father was of mutual incomprehension, of parents who had over the years
become
emotional strangers, and for whom the dramatic end to the marriage acted as a final severance. The mother, plainly a capable person, has responded to events in a child-centred way within the limited horizons of her upbringing. Her evidence was as sincere as that of the father. Although it was given in a more matter-of-fact tone, the stresses
beneath
the surface were evident.
- Rabbi Ariel Abel, called in
behalf
of the father, spoke to a learned paper that he had prepared. He has
been
a rabbi since 1997, describing himself as mainstream Orthodox and falling under the authority of the Chief Rabbi. He is a law graduate, studying to
become
a solicitor. He grew up in the North Manchester Charedi community and has experience of communities in London, Liverpool and Manchester at
various
levels of orthodoxy. The father in this case was referred to him for assistance as a member of his congregation.
- Rabbi Abel stated that he possessed a diploma one level
below
that of a
judge
and that he was qualified to express an opinion on
Jewish
law, which does not
vary
depending upon whether one regards oneself as orthodox, traditional or liberal.
- 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.
- Mr Robert
Bernard
gave evidence for the father as a representative of the GesherEU Support Network, a registered charity of which he is a trustee, that supports individuals that have left Charedi communities. He describes himself as
being
a progressive
Jew,
although he is plainly well-informed about circumstances within
ultra-Orthodox
communities. His organisation has supported the father in Re X and the father in the present case.
- In the course of his statement, Mr
Bernard
writes: "[The
ultra-Orthodox]
approach to religion leaves little or no room for personal deviations in the public realm. Personal decision-making is minimal with all major concerns
being
discussed with one's Rabbi… Leaving the community is always seen as a weakness in the person leaving.… The community will go to great lengths to stop this happening or to hide the fact that individuals go… There is not room here to describe the other coercive activities that keep individuals in the community even after they have lost their faith or wish to practice
Judaism
in a more relaxed environment or simply want to continue their education at university or college in the normal way of the country at large. However the loss of contact with children is one that is relevant here and not constrained to this case. If one partner leaves the community, the community tries to minimise the exposure of the children to the outside world. The fight to reduce contact can continue for years despite court orders giving the [absent] parent access... Anyone who does not conform to the norm may
be
threatened with
being
shunned
by
the community (and most probably
by
the family). This includes all LGBT individuals,
but
also includes those who lose their faith (and don't cover it up) …"
- Mr
Bernard
considered cases where a straight parent has left the community. The Charedi parent has no leeway for compromise. Exposure to the outside world is seen as dangerous for the children, who are educated to
believe
that the world is hostile to the
Jewish
community. It is common for the parents to claim that the children will
be
shunned
by
the community if they are exposed to outside knowledge. In practice, if the courts order access in a conventional way, the community will adapt, as will the children. Historically,
Jewish
communities hold the law in high regard and will make contact arrangements work once ordered
by
the court, though they will expect the family to offer no compromise and
be
seen to fight tooth and nail. What is important is that they have not colluded in an agreement.
- Mr
Bernard
emphasised the importance to the community of its children: "I still
believe
the community will want to keep the children – I can't see why the desire to keep the children in the community, which is so strong, will
be
affected
by
the sexual identity of the parent – hopefully the schools will support the children with this."
- Mr
Bernard
concludes: "We
believe
that, push come to shove, they will adapt to the prevailing attitudes to LGBT individuals if and only if they are forced to do so."
- On examination, it
became
clear that Mr
Bernard's
organization did not have experience of children
being
ostracised. He emphasised the community's concern to keep children within it. He spoke of "fearcasting" – putting into professional minds a fear that something
bad
will happen to the children if the community is contradicted.
- Rabbi Andrew Oppenheimer gave evidence on
behalf
of the mother. He is a rabbi, a legal academic and teacher, and an adviser to organizations and educational institutions in the Charedi community. He has extensive experience of mediating within the community and of mediating
between
the community and civil society, including the Department for Education. He was until recently resident in the North Manchester area.
- 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."
- 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).
- In support, Rabbi Oppenheimer produces opinions from two sources of higher authority within the Charedi hierarchy:
Rabbi S.F. Zimmerman, Grand Rabbi of the Gateshead Hebrew Congregation:
"1. Transgender and procedures to affect sex-change
violate
basic
Torah principles and are prohibited
by
Jewish
Law/Halacha.
2. Such procedures, post facto, do not affect any change in gender status from the person's
birth
status according to
Jewish
Law/Halacha."
Dayan Y.Y. Lichtenstein, Chief
Justice
of the Federation of Synagogues in London and its Halachic (
Jewish
Law) authority:
"I can state categorically that
Jewish
law does not recognise any change in sex of male to female or female to male under any circumstances.
In the case of a man who was married and has undergone a sex change, for all religious purposes he will
be
considered male and will
be
required to give a Get (a
bill
of
Jewish
divorce) to dissolve his marriage. Any subsequent marriage could only
be
to a woman and it would
be
forbidden for him to have relations with another man."
- Dayan Lichtenstein gives as his opinion that Rabbi Waldenberg (under whom he personally studied) did not hold the opinion that transgender is recognised in
Jewish
law.
- 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."
- 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".
- In his statement, Rabbi Oppenheimer had likened membership of the community to membership of the club or political party. Membership is
based
on a contract and if a person chooses to leave the club, they must accept the consequences of their actions. In his evidence, the Rabbi dropped this analogy. He nevertheless 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.
- Rabbi Oppenheimer has experience of advising
Jewish
schools in relation to compliance with the law. He stated that he fully accepts that there is a clash
between
the Torah and the equality laws designed to uphold the rights of protected categories of person, though he sought comfort in certain more peripheral paragraphs of the DfE Equality Act Guidance for schools [3.29-30], rather at the expense of the central theme of Guidance as paragraphs [2.6-7] – see paragraph 49 above. The heart of the issue, he said, is that the norms of society (seen in the protected characteristics) are at loggerheads with the
best
interests of the children (as seen from his perspective). As to Rabbi Abel's emphasis on respect for the parents, he considers that the obligation clearly falls away where it would cause pain and suffering to the children.
- 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".
- 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.
- 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".
- Asked whether a court order would make a difference to the community response, Rabbi Oppenheimer said that it might,
but
that the difference was unlikely to
be
significant.
- Mrs K (community officer supporting organisations and schools, committee member of the family's housing association, called
by
the mother): She described how life within the community is notable for its gender-separate activities, meaning that the father would not now
be
accepted in either the male or female groups. She asserted that the community will offer a huge amount of additional support to a family with an 'absent' father,
but
that this would drop off if the father was to return: "They will have a present father, yet a father that cannot properly
be
present for them." She spoke of the difficulties surrounding the arrangements for a
bar
mitzvah. Parents will keep their children away from these children if they are in contact with their father, and this would
be
particularly painful on such an important occasion.
- Mrs K described her absolute sense of shock at receiving the father's email with its extreme references.
- Mrs K produced the notes of the April 2016 meeting, which she had chaired. She said that the meeting had
been
called out of a strong sense that there was a duty to look after the children. They had never had to deal with transgender or gay issues and they questioned: "What do we do if there is a challenge to our religious ethos? How will we manage this in the context of the child and the classes and the duty to parents?" The meeting, she explained, was about
being
forearmed to deal with the "what ifs". The conclusion was that the participants would keep in touch and they may need to seek legal guidance if there was a challenge to the religious ethos of the schools, including about continuing to accommodate the children if the involvement of their transgender parent challenged the school's ethos and code of conduct. Mrs K accepted that the meeting had not given any consideration to the consequences for the children of the loss of their father.
- She explained that the difficulty with a discussion of gender change was that it would lead to a discussion about sexuality, which would
be
against the schools' ethos. For the children, it would mean having unmanaged information about something they would find difficult to understand and that they would worry about. For the community, transgender would
be
very
worrying and would
be
seen as a defection from core
values,
and expressive of hostility and disrespect.
- Mrs S (foster parent, called
by
the mother): Mrs S grew up within the Manchester
ultra-Orthodox
community and now lives nearby. She identifies herself as an observant modern Orthodox
Jew.
She is fluent in Yiddish and Hebrew. For 15 years she has
been
a local authority foster carer, specialising in caring for children from the community. The children have
been
of all ages, the majority aged 10 or over, and have stayed for
between
two weeks and six years. They have
variously
been
in care as a result of sexual abuse, neglect, parental incapacity or relationship difficulties.
- 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.
- 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.
- 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."
- 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."
- Other witnesses regarding community attitudes: Statements have
been
made
by
number of individuals not called to give evidence at the hearing. These include:
Rabbi C, A's head teacher (religious studies): "I feel strongly that a meeting
between
father and son would cause unimaginable and irreparable damage to A
both
emotionally and educationally and I'm also fearful that A's religious commitment could
be
compromised too."
And more generally:
"I have
been
asked to submit a letter detailing the difficulties a School like ours would have with a child that was
being
exposed to outside influences.
We would not
be
in a position to accept a child who was at risk of
being
party to what our culture would
view
as inappropriate material or experience. So for instance if a child had a Parent who was taking them to the cinema or reading newspapers around them, that child would not
be
offered a place at the School. If a child had one Parent that was not following the strict guidelines that we as a community school follow, that would give great cause for concern.
If a child was already in the School, the School would face tremendous pressure from the Parent
body,
private donors and the governors, to suggest that the child find a more suitable educational environment. This is due to the
very
real risk that some of this inappropriate information or exposure would
be
shared with other children, whose parents have chosen to raise within strict parameters of religion and lifestyle. It would
be
unfair to keep a child in a School like ours as inevitably they would
be
socially excluded due to concerns from other Parents."
Mr R (A's counsellor): "Seeing his father could stir up a lot within him and cause him a lot of pain/harm." Speaking to the Guardian: "… ideally A would
benefit
from a relationship with his father, however he struggled to comprehend how this could
be
managed given the complexities of the family's faith and culture."
Mr P (
B
and D's head teacher): " It has
been
a huge shock and hurdle for the children to contend with only having one parent at home. In the school they attend there are only a small handful of other pupils in this situation out of 281 families. The new lifestyle that [the father] has chosen is a foreign choice to them, something which they would have no concept or understanding of, as it is
basically
unheard of in the circles their parents decided to
bring
them up in.
Just
hearing about it would
be
terribly confusing and unsettling, let alone for them to see it in person… This may appear as a socially insular set up
but
it does not negate the fact that the children have
been
brought
up like this and it would
be
a major culture shock. Religiously too this would
be
at odds with their own lifestyle."
Mrs E (a teacher at C's school): "When a child is from a home that experiences negative change within the frameworks of the religion we keep or the way in which we choose to observe it, problems arise with the child's school place.
Whilst the School will make every effort to support the family in question, where there is risk of negative influences from the outside world to other children in the School, the School will experience tremendous pressure from the Parent
body
and the governors not to allocate a place to any child who will
bring
these potential risks. It would therefore
be
very
difficult for the School to process an application for a child who fits the above description."
Mrs S2 (a mother within the community, testimony produced
by
the mother): "My Ex-Husband left the folds of observant
Judaism
and our community approximately 30 months ago. He is no longer observant and does not conform to the religious standards and parameters within which we were raising our children. Despite the fact that as a single mother I am still of the same religious standards, as is my home, living in an ultraorthodox community, his new lifestyle has caused us untold difficulties.
My youngest child was not accepted into the school that my other children had attended, as the school would not risk the influences their Father's contact with the child might have on the rest of the student
body.
I had no choice
but
to apply to another school for my youngest child. It is and will remain a challenge as this is not the lifestyle my child is used to and is not the social or communal circle I mix in. [For my youngest] to feel the rejection and not have the ability to follow the path older siblings took is a painful experience.
This is the unfortunate price a child within an ultraorthodox community pays for the actions of their Parent(s)."
Mr S2 (the ex-husband of Mrs S2, testimony produced
by
the father): "I left the community over a year-and-a-half ago. It was tumultuous and
very
challenging. Despite the pain, upheaval and learning curve that
both
I and my former wife went through, we
both
agreed that the children and their well-
being
were our ultimate priority.…
The results nearly two years down the line is that our children are happy, doing well at school and feel supported and loved
by
both
parents. It has
been
give and take and having to walk a careful tightrope. No less
because
we were aware of the way some people in the community might react to our children.
Of course people in the community have their opinion and unfortunately not always kind ones.…
My youngest daughter did not get into the first school of her choice. We were told that this was due to the school
being
fully subscribed and not having any current siblings she was not a priority. It is possible there was some discrimination going on
but
as a state school they certainly didn't say so…
Unfortunately my ex was approached
by
people in the community telling her that she should fight for her children and that she should let them take the case up. I am ever grateful to her that she told them the children's well-
being
was paramount and that she was not prepared to traumatise them
by
forcing them through a
very
public and damaging legal
battle.
It is unfortunate that there are people willing to fight, even to the detriment of the children's well-
being
in order to keep children with what they perceive to
be
the only way of life. My children's experiences are that most people are friendly and encouraging. They have friends and socially achieve their goals. People in the community generally feel that
being
kind to my children is the only avenue to ensuring their continued connection to the community."
Mr
B
(neighbour, testimony produced
by
the mother): "[The] children are regular
visitors
to my house. They enjoy a positive social relationship with my children and I assist with School rotas and general neighbourly duties.
I can confirm that were the children in contact with their Father, I would not
be
able to continue this relationship as I would have serious concerns about the influences and information the children may pass on to my own children.
I feel
very
sorry that things have come to this,
but
ultimately, I have to make my children and the culture within which they thrive, my priority."
Mr X (father in the case of Re X, testimony produced
by
the father): "I separated from my wife six months ago mainly due to my leaving the religion. At the time my wife was concerned that if the children were to spend time with me this may cause them to
become
isolated from the community. Nevertheless my wife respected my right as a father to have
joint
access to the children.
I have always respected my ex-wife's decision to remain orthodox and do not do anything with the children that would give cause for concern with regards to the religion. The children have all maintained their friendships
both
with school friends and with members of my ex-wife's family. It is my experience that the community often act out of fear and would put tremendous pressure to keep the status quo. However once changes have
been
made and especially if the religious parent has a legal requirement to give
joint
access to the children the children do not
become
isolated as a result."
E, mother's older sister: From the report of the Anna Freud Centre: "[E], who is a huge source of support to the family and with whom the mother has a close relationship, was clear that if her nieces and nephews have contact with their transgender father, she will
be
concerned about how this will impact on her own children and she will need to
be
present and supervise when they see their cousins."
- The Anna Freud Centre In November, Ms
Judy
Henry (family therapist) and Dr Emma Morris (consultant clinical psychologist) produced a substantial report for the court after an inquiry spanning seven weeks. Having reviewed the papers, they carried out assessment sessions with the father, the mother and the children (individually and as a group) at the Centre. They
visited
the children at home, where they met the mother's sister E. They spoke
by
telephone to the children's teachers and to A's counsellor. It is unnecessary to repeat the
volume
of information, reflecting the evidence above, that they gathered from these interviews.
- 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.
- Dr Morris and Ms Henry accepted that their experience of working with the
ultra-Orthodox
community was limited, as was their specific experience in transgender cases. Although they
bring
their own professional perspectives, they
very
much spoke with one
voice.
They explained that they had tried as far as possible to look at things through the eyes of the children, who appear to
be
thriving despite the significant changes since their father left home.
- 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."
- 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.
- Dr Morris and Ms Henry accepted that the father's relationship with the children had
been
a good one and that the children, including A, would want to see their father if they could.
Both
parents clearly love the children
very
much and are committed to them. The children will suffer harm from deprivation of contact, and will feel sad and unsettled.
- Normally they would support a child's right to contact with the absent parent, unless it was demonstrated that this would not to
be
in the child's interests, for example in a case where there had
been
abuse. Here, the worst outcome for the children would
be
to
be
victimised
and excluded for having contact. At present, they are dependent and their identity is completely
bound
up with their place in the community. It is not possible to think of their needs as
being
separate from their identity. If they left the community, it would have a huge negative impact, particularly as the mother, who is their main carer, would not have the support she has now.
- Although the deciding factor in their analysis is the likely community response, they also expressed some concern about the father's ability to keep her emotions in check and prioritise the emotional needs of the children. During their meetings with the father, she was understandably
very
upset and angry with the community, and feels rejected and
judged.
In some discussions, her own needs were so great that she was unable to see things from A's point of
view.
At some times, she was insightful; at other times, her own needs and concerns overwhelmed her.
- They described the current situation as one in which the mother does not speak against the father,
but
rather does not speak of him at all. This
vacuum
contains the potential for anxiety and depression in the children if it is not dealt with.
- As to providing the children with a narrative, they described the stages
by
which information would
be
given. It would
be
a complex process requiring cooperation from
both
parents and there could
be
difficulties in controlling the narrative, which needed to
be
true,
but
judiciously
so. The first stage would involve the children learning that their father felt different and unhappy and that he could only feel
better
by
leaving,
but
that he misses them and thinks about them all the time. The second stage would introduce the idea of gender change: "The place where we live doesn't allow daddies to live like mummies, or to stay, or to see you". When the children were older, ideas of physical change (hormone therapy or surgery) could
be
introduced at an appropriate third stage.
- Dr Morris and Ms Henry recommend that the father writes to each child on his/her
birthday
and to all the children on two other occasions each year, perhaps associated with religious festivals. They accept that indirect contact only might in some ways
be
seen as the worst of all worlds, providing the children with a "
virtual
father" and not a real relationship. However, it can
be
said that this is what A, for one, is willing to accept. He has autonomously accepted the community
beliefs.
The longer the status quo has gone on, the more he wants it to remain that way.
- Dr Morris and Ms Henry indicated that if direct contact was to take place, intense planning would
be
required, leading to contact within six months. There would need to
be
supervision,
both
professional and
by
a mutually acceptable member of the community.
- The Children's Guardian Ms Emma Gauden has prepared two reports, in May and November.
- In her first report, she expressed concern at the way in which A had
been
used as a confidant
by
his father, and
by
the father's apparent lack of insight into the difficulties that this caused. She expressed concerns that the father's understandable fight for
justice
for herself was causing her to lose insight into the children's stability and emotional welfare. The father had at that point accepted that the community would discriminate against the children if they spend time with her,
just
as the community had discriminated against her directly, saying that it had minimal tolerance towards those who do not share its core
values.
- When the Guardian met the four younger children in April, they were curious that she was not
Jewish
and were keen and proud to tell her about their faith and customs. They asked her whether she knew their father and said that they missed him and would like him to return home. C said that he had
been
kind and funny.
- The Guardian met A and his counsellor later that evening. A appeared confident and articulate. He described a close relationship with his father and had fond memories of their times together. He avoided any discussion about the father's changes, saying that it made him feel under pressure. He said that he likes to hold onto his positive memories and that if he had a choice, his father would return to the family as it was
before
he left. He said that he would like to spend time with his father as long as he wasn't any different to how he recalled him. If he saw his father outside the family, he would need to keep it a secret.
- The Guardian writes: "Children are resilient to change, and I would expect without the cultural facet of this situation they could
be
supported to understand and accept their father's new identity. For the older children especially this may require therapeutic intervention. What is absent [sic] in this situation is the lack of support available to the children within their family and wider community. Any acceptance of such change would in my
view
require the children to have a solid structure of support enveloping them. This does not exist as a result of the conflict
between
the father's transition and the Orthodox
Jewish
way of life."
- 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."
- 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.
- 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.
- 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.
- The Guardian noted that the father was aggrieved that the professionals were not fighting the system that operates in the community,
but
she argued that it was not the court's role to exercise social engineering. Nor should she
judge
the community, although its
views
conflicted with hers. In any event, the court could not change the
views
of the community, even if it is
being
emotionally neglectful towards the children.
- The Guardian considers that the effect on the mother of losing community support would
be
severe. She is the only practical parent available to the children and also has to work.
- The Guardian acknowledged the serious disadvantages of separating the children from their father until they had reached a level of maturity to
better
deal with these issues. She also accepted that if the children are within the community, they are not free to make their own decisions.
- A's
visit
to court I offered to meet A
because
of his age and
because
he had found himself at the heart of the family
breakdown.
The Guardian conveyed the offer and A accepted. The purpose of the meeting, which took place in the presence of the Guardian and my clerk, was not to obtain evidence,
but
to allow A to
better
understand the court process; inevitably, a meeting with a child can also provide an additional perspective for the
judge,
and so it proved.
- It was a pleasure to meet A, who is a credit to his parents. After some general conversation and a tour of the courtroom, I asked him whether he would like to tell me anything. He said that if he saw his father, it would affect him in a
bad
way. He would get
bullied
and lose his friends. His
brothers
and sisters didn't know what their father had done and would not know what to do or think – it would affect their lives. If their mother remarried, they could have a father. As to the future, he wanted to have a good life. He might or might not make a different decision about seeing his father when he had married and settled down.
- A used a parable of his own to explain his point of
view.
He described a
British
Navy
boat
being
bombarded
by
a pirate ship that shot a
big
hole into the middle of it. While the
British
were fixing it up, another ship came along and smashed it again, this time fatally. He said that his father had already done him damage and that he had tried to fix it up and get his confidence
back.
Seeing him again will cause more damage and
bring
down his confidence: "It
just
won't work… If he cares, he will leave me alone...
Jewish
law says that we can't deal with this kind of thing. People think things."
- He said that his mother was anxious for all the children's futures. He did not feel proud of his father. He had told him confusing things. He (the father) had made his decision and had to go through with it, it wouldn't affect his life as much as the children's.
- I raised the possibility that in life we may all really
be
in the same
boat,
but
that is not how A sees it at the moment.
- A approached the meeting with earnest good humour. The only sign of stress was that he was exceptionally anxious to avoid a chance meeting with his father, even though he had
been
reassured that arrangements had
been
made to prevent this.
The welfare checklist
- I will
briefly
identify the main features as they appear from the evidence.
The ascertainable wishes and feelings of the children (in the light of their age and understanding)
- E has
been
least affected
by
her father's departure
because
of her young age when he left.
- D has confused memories of his father and may wish to
be
cared for
by
him again.
- C remembers her father with affection and would like to see him again.
B
has good memories of his father, misses him, and would like to see again.
- A worries that his siblings will
be
affected. He is nervous about classmates at school drawing attention to his father. His feelings are conflicted, remembering the good times
but
feeling angry that his father left the family and involved A in this. His expressed wishes are that he does not want to see his father until he is much older.
- On the face of it, these children would all want to continue to have a full relationship with their father. However, the
views
of the younger children are formed in ignorance of the fact that the father they knew can never return, and of the possible consequences of contact for the family as a whole. For A, his father is extremely important to him. His decision not to have contact does not reflect his true wishes and feelings. It is not a rejection,
but
a calculation
based
on his understanding of the family's circumstances. In addition, A's position is now complicated
by
feelings of responsibility for his mother and siblings.
Physical, emotional and educational needs
- The children's normal need for stability is increased
by
the disruption they have experienced with their father's departure. It is not in issue
between
the parents that the children should live and
be
brought
up in the community of their
birth.
Now,
being
in an undoubtedly exposed position, they need to feel safe and secure there.
- As a group, they have many unanswered questions about what lies
behind
the father's absence. They need an appropriate explanation. The younger children need to
be
armed with a reasonable understanding of their father's transgender status so that they are equipped to manage the topic as and when it comes up. A needs to learn the intense distress associated with gender dysphoria as a way of
better
understanding his father's situation.
- The children have the same educational needs as any other child, to
be
delivered
by
their faith schools in a way that should comply with the law of the land.
The likely effect of any change in circumstances
- There has already
been
a significant change in circumstances, with the father's departure, in the widest sense, from the children's lives. The question is whether her reintroduction could
be
achieved without causing greater harm.
Age, sex,
background
- The children are at a dependent age. They identify unconditionally with the cultural and religious ways of their community.
Any harm which the children have suffered or are at risk of suffering
- The children have suffered harm with the sudden disappearance of their father. A suffered harm
by
being
inappropriately involved in the marriage
breakdown
by
one parent to the exclusion of the other.
- The children will suffer serious harm if they are deprived of a relationship with their father.
- The children would suffer serious harm if they were excluded from the normal life of the community.
How capable each parent is of meeting the children's needs
- The mother is the children's main carer. She is the only parent who can sustain the children's lives within the community. She has shown that she has the ability to do this, physically, emotionally and educationally, provided she has family and community support.
- In the circumstances that have arisen, the father is unable to live in the community. She has the ability to meet the children's emotional needs as a second parent living elsewhere, provided she is not overwhelmed
by
her own emotional needs.
The range of powers available to the court
- Orders can
be
made for direct and/or indirect contact; for ensuring that information is given to the children; and for ongoing support to
be
provided
by
Cafcass for a limited period
by
way of a Family Assistance Order.
- If direct contact is to
be
ordered, the children would in my
view
need to
be
made Wards of Court so that the court assumed direct responsibility for ensuring that its order was carried out.
Assessment and conclusion
- 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.
- 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.
- 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.
- 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 arguments in favour of direct contact are formidable:
(1) Face-to-face meetings give the children and their father the lifelong
benefits
of a unique and irreplaceable relationship.
(2) Contact upholds the rights of the children and the father to respect for their family life.
(3) It is in accordance with the children's underlying wishes and prevents them from developing a deep sense of loss.
(4) It is strongly desired
by
the father. The effect on her of
being
deprived of contact cannot
be
predicted,
but
any further distress to her cannot
be
in the children's interests.
(5) It upholds the right of the father not to
be
discriminated against as a transgender person.
(6) It removes the harm to the children of finding that they were separated from a loving parent
by
the rules of their community, with the possibility that their sense of
justice
will
be
offended, causing them to resent their mother and their religion.
(7) It removes the risk that the children's sense of identity and self-worth will
be
affected if their father is treated as if he was a sinner who is not worthy to act as their parent.
(8) It provides the children with reassurance about their father's welfare.
(9) It confronts the issue now, when some professional resources are to hand, rather than leaving it to the children cope unsupported in whatever way they can at some future time.
(10) Without contact, the children will have an incomplete, controlled and possibly misleading experience of their father. Face-to-face contact is the only way in which they will truly
be
able to understand her transition and the reality of life as a transgender person.
(11) It prevents a situation in which one or more of the children will
be
locked in
by
community and family pressure (including perhaps pressure from their siblings), leaving them unable to choose to make contact with their father later in their childhoods, and possibly even into adulthood.
(12) It would give the children some small experience of the wider world and might even open the door to them
being
able to make life choices for themselves as they grow older.
(13) It removes the risk that one or more of the children may ask to see their father,
but
be
refused and have no recourse.
(14) It removes the risk that indirect contact will not
be
satisfactorily achieved as time passes due to a lack of clarity about its objectives, and
because
the lack of trust
between
the parents may lead to less than wholehearted co-operation on
both
sides.
(15) A possibly unprecedented decision
by
the court not to order direct contact in circumstances of this kind would not
be
an abstention
but
a positive act with Draconian consequences, stretching far into the children's future and producing an outcome almost amounting to adoption.
- None of the arguments that are said to favour contact depend on any disputed facts.
- The factors that speak against face-to-face contact are far fewer in number and they are contested:
(1) The father's dependability.
(2) The community's reaction to direct contact.
- Evidently, a
view
must
be
taken of the
validity
of these factors, and the weight that should
be
given to them. I take them in turn.
- As to the father's dependability, I accept that she has approached matters responsibly in a number of ways. She has accepted for the purposes of these proceedings that the children should remain in the community and that they should maintain their fully religious lifestyle. She has not taken any direct action to undermine the children's situation during the course of the last 18 months, despite
being
prevented from seeing them. She has offered to fall in with any reasonable requirements surrounding contact arrangements, including
by
agreeing to supervision.
- These commitments are commendable, particularly while the father faces such enormous personal challenges. Those challenges will continue, and may increase with the ongoing process of transition. It is no surprise that the father is, in my
view,
weighed down emotionally. Although she looks to the future in a positive spirit, I cannot share her
view
that she is now emotionally strong and confident. In my
view,
the professional witnesses are correct to assess her level of insight as uneven in consequence of other pressures. Her decision to co-opt A into her struggles was a serious misjudgement. The emails to the teachers and others were unwise, seen from the children's point of
view,
whether or not they were in any way
justified.
The road to direct contact, even approaching matters with maximum optimism, would
be
a hard one, requiring a
very
high level of collaboration. It is predictable that there will
be
anxiety on the part of the mother and flare-ups on the part of the father when difficulties arise. The consequences would depend on the circumstances,
but
could mean additional problems for the children, either directly or indirectly with other family members or third parties weighing in.
- I therefore consider that 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.
- I turn to the central question of the reaction of the community if the children were to have direct contact with their father.
- Ms
Ball
and Ms Mann submit that the
balance
to
be
struck is
between
harm that the children will suffer (through loss of contact) and harm that they may suffer (through ostracism). As to the latter, they rely on the evidence of Rabbi Abel and Mr
Bernard.
They suggest that the mother's witnesses are over-egging the pudding, and that the court should not assume the worst. They point to the outcomes in Re X and the case of Mr and Mrs S2. The cases of Child A and Child
B
revolved around issues of sex, not of gender. It is not clear why indirect contact is said to
be
acceptable, while direct contact is not. If the children in this family were to suffer from teasing, this could
be
managed with the support of individuals within the community and outside.
- More
broadly,
they invite the court to take the
view
that it is high time for the children's schools to put their houses in order: if the schools taught tolerance and respect in accordance with the law, attitudes would
begin
to change:
"If the children's schools had complied with the law in the present case, or were to do so now, then any potential difficulty for the children of this family would
be
significantly reduced or removed. It is not acceptable for the community or schools to raise the spectre of ostracisation or teasing when it is their failure to comply with their responsibilities under Government standards which would or might lead to this. Nor is it acceptable for the spectre of the children having to leave their schools to
be
raised when this could only
be
achieved
by
discriminatory
behaviour
under the Equality Act 2010."
- On the mother's
behalf,
Mr
Buckley
relies on the evidence from all the other community witnesses on this issue. He says that it is inflammatory to speak of discrimination or
victimisation
in a case where people are following their faith, and that the court should not
be
drawn into issuing "clarion calls". He argues that it would
be
asking too much of the children for them to see 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. 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.
- To explain my conclusion on this issue:
(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.
(2) The examples in the cases of Re X and the children of Mr and Mrs S2 show the difficulties that arise when a parent simply leaves the
ultra-Orthodox
community, without the compounding features found in this case.
(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.
(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.
(5) There is a consistent account from all those within the community of how it will
behave:
the mother, the mother's sister E, the neighbour Mr
B,
the community officer Mrs K, the single parent Mrs S2, Rabbi Oppenheimer, and not least A himself.
(6) The father, Mr X, Mr S2, Rabbi Abel and Mr
Bernard
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. 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.
(10) I also note the existence of others (described
by
Rabbi Oppenheimer as "hotheads") who are ready to exacerbate the situation
by
sending out messages on social media.
(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.
- 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.
- 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.
- I also 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 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.
- 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 (as Ms Henry and Dr Morris put it) "a negative impact on how they function in the widest possible sense
both
now and in the future".
- It is central to my thinking that this is not a case about whether children should or should not
be
brought
up according to
ultra-Orthodox
principles. This was the issue in Re G, and it was that which led Munby LJ at paragraph 82 to describe the task of the
judge
as
being
to recognise equality, foster aspiration and maximise the children's opportunities in every sphere of life as they enter adulthood, taking care not to foreclose on their ability to make future choices for themselves.
- This case is quite different. 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.
- The advice of the professional witnesses, which is unanimous, was subjected to the most rigorous scrutiny, entirely
justifiably
given its momentous nature.
By
my assessment, the opinions of Dr Morris, Ms Henry and the Guardian withstood that scrutiny. For obvious reasons, they had little previous experience of the circumstances that arise in this case,
but
they applied coherent principles and kept a steadfast eye on the children's welfare. I found that the Guardian has a sound appreciation of the overall situation, and I rely upon her professional
judgement,
underpinned
by
the Anna Freud investigation. Alongside these witnesses, I have (as required
by
Re C) 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.
- 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.
- 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 Ms Gauden 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 and I will if necessary postpone the making of the final order to ensure that all these matters are securely in place.
- 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.
- I decline to intervene in the matter of the get.
- In the light of the response of the schools to this family's situation, I shall send a copy of this
judgment to the Minister of State for School Standards at the Department for Education. If change is required (and that is for others to say), responsibility must fall on the shoulders of the schools, the community and the state, and not on the heads of young children.
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