Transgender Charedi wins landmark appeal

THE COURT of Appeal has overturned a family court ruling that barred a transgender Charedi father from having face-to-face contact with her children.

In a decision with widespread implications, the three appeal court judges held that the religious views of a child’s community should be secondary to the need to maintain contact between a parent and child. Writing of this specific case, Sir James Munby, President of the Family Division, ruled: “The best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved.

“So strong are the interests of the children in the eyes of the law that the courts must… persevere. As the law says in other contexts, ‘never say never’. To repeat, the doors should not be closed at this early stage in their lives.”

In January of this year, a family court in Manchester ruled that the transgender father should not have direct contact with her five children because there was “a real risk, amounting to a probability, that these children and their mother would be rejected by their community” if that happened.

The family court judge also ruled that there was “no evidence that any person in a position of authority or influence within the community wishes to challenge the behaviour of its members” and consequently there was no prospect of a court order bringing about a change in the community’s attitude to the family.

The judge did, however, permit the father indirect contact, such as writing to the children on their birthday.

In overturning that ruling, the Court of Appeal noted that in cases where “religion is not in play” courts were willing to “invoke robust methods where that is required in the child’s interests”. In a significant widening of previous decisions, Sir James held: “Should the approach be any different

because religious belief, practice or observance is in play? The answer in essence must be: No.”

The case will now be sent back to the family court, where it will be heard again by a different judge who will need to take into account the recommendation that direct contact between the father and her children be established.

Alison Ball, QC, who acted for the father, told the JC that the latest ruling would make “a big difference, because it is [talking about] a real relationship rather than an artificial sort of virtual relationship, which is what the court below had set up.” She said her client “will be very delighted and will do her utmost to make this work”.

Jason Braier, a lawyer with experience in discrimination law said that, following the ruling, when Charedi practices are “at odds with ordinary democratic belief within ordinary UK society”, the community would have “great difficulty” in the courts.

Benjamin Ellis, a trustee of Keshet UK, which promotes LGBT equality within the Jewish community, said: “No one should have to choose between being LGBT and their Jewishness. No child should have to choose between their family and their community. No child should be deprived of contact with a parent because they are LGBT.

“Keshet thinks the Jewish community should be more inclusive and this ruling supports that aim, it seems.”