M (Children)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 20 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2164 |
| Docket Number | Case No: B4/2017/0571 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2017 |
[2017] EWCA Civ 2164
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Lady Justice Arden
and
Lord Justice Singh
Case No: B4/2017/0571
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
Sitting at Manchester
Mr JUSTICE PETER JACKSON
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Alison Ball QC and Mr Hassan Khan (instructed by Dawson Cornwell) for the appellant father
Mr Peter Buckley (instructed by Steinbergs Solicitors) for the respondent mother
Ms Frances Heaton QC and Ms Jane Walker (instructed by Alfred Newton Solicitors) for the children's guardian
Ms Karon Monaghan QC and Ms Sarah Hannett (instructed by Baker & McKenzie LLP) filed written submissions on behalf of the first intervener Stonewall Equality Limited
Ms Jane Rayson and Mr Andrew Powell (instructed by A City Law Firm) filed written submissions on behalf of the second intervener Keshet Diversity UK
Hearing date: 15 November 2017
Sir James Munby, President of the Family Division:
This is the judgment of the court to which we have each made significant contribution.
This is an appeal from a judgment and order of Peter Jackson J, as he then was, made in private law proceedings between the father and the mother of five children, whose ages now range from 13 to 3 years old. His judgment was handed down on 30 January 2017: J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4, [2017] WLR(D) 142. The judgment, which was necessarily lengthy, is freely available to all on the BAILII website, so we can be more limited in quoting from it than might otherwise be appropriate. We do, however, urge anyone who has occasion to read our judgment to read Peter Jackson J's judgment first.
The order was made on 2 February 2017. It was expressed as being a final order. The judge dismissed the father's application for direct contact (the children live with the mother). The order contained a child arrangements order providing for limited indirect contact, a specific issue order directing that the children were to be provided with “staged narratives” in age-appropriate terms, and a family assistance order under section 16 of the Children Act 1989, naming the children's guardian as the relevant officer, to remain in force until 1 February 2018. The father sought permission to appeal; the perfected grounds of appeal are dated 17 March 2017. Permission to appeal was given by King LJ on 16 June 2017. On 27 October 2017, McFarlane LJ gave both Stonewall Equality Limited (“Stonewall”) and Keshet Diversity UK (“KeshetUK”) permission to intervene in the appeal, limited to making written submissions. On 10 November 2017, the father applied for permission to admit further evidence, which we admitted de bene esse.
The appeal came on for hearing before us on 15 November 2017. Ms Alison Ball QC and Mr Hassan Khan appeared for the father, Mr Peter Buckley for the mother, and Ms Frances Heaton QC and Ms Jane Walker for the children's guardian. Ms Karon Monaghan QC and Ms Sarah Hannett filed written submissions on behalf of Stonewall and Ms Jane Rayson and Mr Andrew Powell filed written submissions on behalf of KeshetUK. At the end of the hearing we reserved judgment, which we now hand down.
The case in outline
The outcome of this appeal is of very great importance to the father, to the mother and the children, and to the ultra-orthodox North Manchester Charedi Jewish community in which the children have always been brought up. But in its potential implications this appeal is of profound significance for the law in general and family law in particular. For on one view it raises the question of how, in evaluating a child's welfare, the court is to respond to the impact on the child of behaviour, or the fear of behaviour, which is or may be unlawfully discriminatory as involving breaches of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms or of the Equality Act 2010.
The facts of the present case are stark, deeply saddening and extremely disturbing. In due course we shall need to explore the judge's reasoning in more detail, but at this stage we can summarise the essence very shortly.
The father is transgender and left the family home in June 2015 to live as a transgender person. She now lives as a woman. Because she is transgender – and for that reason alone – the father is shunned by the North Manchester Charedi Jewish community (the community), and because she is transgender – and for that reason alone – the children face ostracism by the community if they have direct contact with her. Peter Jackson J (judgment, para 178(7)) characterised the practices within the community as amounting to:
“ unlawful discrimination against and victimisation of the father and the children because of the father's transgender status (emphasis added).”
Peter Jackson J identified (judgment, para 166) fifteen arguments in favour of direct contact which he described as “formidable”. He could identify (para 168) only two factors that spoke against direct contact. Of the first, relating to the father's “dependability”, he found (para 172) that “if it were the only obstacle to direct contact, it could probably be overcome.” That left only one factor, which he described (para 173) as “the central question”, namely “the reaction of the community if the children were to have direct contact with the father.”
On this, his findings were as clear as they were bleak. He found (para 156) that:
“The children will suffer serious harm if they are deprived of a relationship with their father.”
Nonetheless he decided, as we have seen, that there should be no direct contact. He explained why. First (para 177):
“Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father.”
Then (para 181):
“I … reject the bald proposition that seeing the father would be too much for the children. Children are goodhearted and adaptable and, given sensitive support, I am sure that these children could adapt considerably to the changes in their father. The truth is that for the children to see their father would be too much for the adults.”
And then this (para 187):
“So, weighing up the profound consequences for the children's welfare of ordering or not ordering direct contact with their father, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its manydisadvantages, must prevail over the many advantages of contact (emphasis added).”
We suspect that many reading this will find the outcome both surprising and disturbing, thinking to themselves, and we can understand why, how can this be so, how can this be right?
The judgment
Having thus introduced the issues which confront us, we turn to a more detailed analysis of Peter Jackson J's judgment. After an Introduction (judgment, paras 1–11) and a section dealing with Terminology (paras 12–16), he set out a Narrative of events (paras 17–36), to which we refer the reader. For present purposes, there are only two matters we need to refer to. The first, (para 33) relates to the minutes of a “Team around the children meeting” held within the community in April 2016. Of these minutes, the judge made this observation (para 34):
“These Minutes are of interest. Not having been prepared with these proceedings in mind, they illustrate the prevailing mindset. There is at least as much concern for the community as for the children. The father was entirely ignored.”
The other matter relates to something which the judge referred to (para 36) as an example of the high level of tension surrounding the proceedings:
“In November [2016], on the first morning of the hearing, an unidentified member of the community posted this WhatsApp 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 judge then turned to the law (paras 37–56). There has been no challenge to his analysis.
Then in a long section (paras 57–142) the judge rehearsed the evidence. For present purposes we can be selective. In the course of setting out the mother's evidence (paras 69–77), the judge said this (paras 73–74):
“73 The mother described the father as having been “severely ostracised” by the community. She had no other experience of the reaction of the community to transgender or homosexual people, but described the problems for a neighbour's children when their mother wanted to leave the religion and the consequences when one of her female cousins began to deviate in her style of dress. She said that she was very aware that the schools must uphold British values, but that “the parent body are the school”. Respect must be shown for people, no matter who they are, but at the same time the ethos of the school must be upheld, no matter what. Transgender is extremely alien to the community and against religious law. As for homosexuality, young children are not faced with it. As she put it: “I uphold the British law within our faith.” If there is a conflict between law and faith, she would follow her faith, though she would not commit a crime. The present circumstances put her in a very difficult position.
74 The mother said that there is no way that direct...
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