J-v-B and The Children (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4

17 Feb

Father leaves the strict Jewish community and changes gender; the Court refuses him/her direct contact.

Extracts from the Judgment:-


165. Here, the best possible outcome would be for the children to live with their mother, grow up in the community, and enjoy a full relationship with their father by regular contact. The worst outcome, I find, would be for the mother and children to be excluded from the community. The question is whether, in striving for the best outcome, the court would instead bring about the worst.

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Father leaves the strict Jewish community and changes gender; the Court refuses him/her direct contact.

Extracts from the Judgment:-


165. Here, the best possible outcome would be for the children to live with their mother, grow up in the community, and enjoy a full relationship with their father by regular contact. The worst outcome, I find, would be for the mother and children to be excluded from the community. The question is whether, in striving for the best outcome, the court would instead bring about the worst.

170. 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.
 
171..  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.


172.  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.
 
  

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.

Hugh Merry

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