Britain's Court of Appeal yesterday reversed the decision of a Family Court judge who had ordered that the Orthodox Jewish father of five children who left the family to live as a transgender woman could have no direct contact in the future with the children. The Family Court judge based his decision on the ostracism that the children and their mother would face from the North Manchester Charedi Jewish community in which they continued to live. (See
prior posting.) In
In the matter of M (Children), (EWCA, Dec. 20, 2017), the appeals court remanded the case to the Family Court, suggesting that some compromise might be found. The appeals court, however, made clear what result should follow if a compromise could not be found:
If the matter has in due course to be determined by the court, we would take the view that in the light of developments in Strasbourg jurisprudence there would be force in Ms Ball's submissions that the community’s beliefs, which resulted in the ready exclusion of young children from the rest of the community, did not meet the criteria set by the Strasbourg court for a religious belief that was entitled to protection under Article 9 [Freedom of thought, conscience and religion].... In that situation, we would expect the leaders of the community to help the community to adopt a more flexible attitude to their beliefs as they might affect the children....
Provisionally ... it seems to us that, if a court were to make an order granting the father some form of direct contact to the children, it would have to have concluded, after the most careful consideration with the parties, that that course was in the best interests of the children. If this involves any interference with any rights of the community to manifest their religious beliefs, we doubt that there would be any violation of the community’s rights under Article 9. This is because the court, as an organ of the State, will on this basis have decided that a restriction that may be involved of their right to express their religious beliefs serves the legitimate aim of protecting the children’s rights to have contact with their father and thus to enjoy family life with him, which rights are vital to their well-being.
The appeals court also issued a
Press Summary of the decision.
LGBTQ Nation reports on the decision.
