In this blog Family Law in Partnership associate Hannah Greene examines a recent divorce case which demonstrates the difficulties faced by the Courts where the gulf between the parents’ communities is “too wide for the children to bridge”.

J v B and The Children (Ultra-Orthodox Judaism: Transgender) [2017] EWFC4 is the latest case in a string of recently reported judgments which have highlighted the issues faced by parental separation and alienation within religious communities.

This case entered the public consciousness as it deals with a scenario believed to be the first of its kind. Although previous cases, such as F v M, have examined the ongoing relationship between a parent who has left an ultra-orthodox Jewish sect and his children, J v B has another distinguishing factor.

In J v B the mother and father of five children separated when the father left the Charedi community to live as a transgender person. She (the “father”) believes that she is the first person to have left a UK Charedi community in order to do so. It should be noted that “Charedi” refers to a number of groups within Orthodox Judaism.

Mr Justice Peter Jackson ruled that there will be no direct contact of any kind between the father and her children who remain within the Charedi sect. This is a marked move away from the usual child arrangements cases where there is a presumption that it is in child’s best interests to have a continuing relationship with both parents.

Mr Justice Jackson pointed out that both parents in J v B belonged to minority groups within the population – notably the Charedi community and the transgender community – both of which have the protection of anti-discrimination laws. Unfortunately, Mr Justice Jackson was hard pressed to find a balance between the Charedi community and the transgender community, given that the former will not acknowledge the existence of the latter.

This case acts as a reminder that the welfare of the child is the Court’s paramount concern. Mr Justice Jackson’s ruling seems extreme, given the statutory law[1] and case law’s reiteration[2] that there is a presumption that an absent parent’s involvement in a child’s life will further the child’s welfare. In his ruling Mr Justice Jackson limited contact by the father with the children to letters four times a year to mark the Jewish holidays of Passover, Sukkot and Hanukkah and the children’s birthdays.

By contrast, in F v M, where a father had left the Orthodox Satmar sect, Judge Rowe did not accept that the father’s ongoing contact with the children – which involved the children spending time with the father outside the sect and the father not committing to giving the children the full Satmar experience when they were with him – would be prejudicial to the children. Judge Rowe did, however, recommend a focus on introducing outside ideas to the children in a “slow and sensitive manner”.

If we consider this case in contrast with J v B, where before the father left the Charedi community and was still outwardly identifying as male, he attempted to “drop hints” to his eldest child by allowing him to see photographs of male friends dressed as women. This was clearly the father’s attempt to introduce to her son the idea of something completely beyond the child’s experience in as sensitive a manner as possible. However, as transgenderism is so beyond the Charedi experience, it is very difficult to imagine what would be considered as a “sensitive manner” in this particular case.

Mr Justice Jackson makes reference to a meeting held within the Charedi community in April 2016, described as a “Team Around the Children Meeting”. This was attended by the head teachers of the three schools the parties’ children attended, one of the children’s counsellors, and the mother’s brother and sister. The minutes of this meeting explain the specific issues considered including:

• The changes within the children’s lives with their father leaving.
• Identifying the risks to the children’s emotional and spiritual well-being.
• Risks of the children becoming socially isolated and other parents wishing to protect their children from being exposed to information that the [family name] children may start sharing.
• Managing the case within the school’s religious ethos, and the schools duty to its parent body to uphold the religious ethos.

It is interesting to note that this Team Meeting took place without reference to the father, and that equal weight was given to the impact on the community as to the impact on the children. Whereas we usually consider the welfare of the child to be not solely but heavily the prerogative of the individuals who have parental responsibility, here parenting has extended beyond the immediate family unit, and has become the remit of the entire community.

Mr Justice Jackson also referred to two Court of Appeal cases concerning transgender parents: Re C[3] and Re T[4]. Both of these cases have emphasised the need for children to have skilled help in learning about the parent’s transition to adjust to the change and, hopefully, maintain a relationship. This poses the question of how the children in the case of J v B would be able to receive skilled help in learning about their father’s transition within a community which categorically “does not recognise any change in sex of male to female or female to male under any circumstances”.[5]

Ultimately, and with great reluctance, Mr Justice Jackson found that he could not see a way to reconcile the differences between the parents, stating that the “gulf between the parents was too wide for the children to gap”. This is a poignant reminder that the Court has a duty to children above all others, and child welfare is deeply impacted by being caught between two worlds. In this instance, cutting the children off from one of these worlds and thereby maintaining their status quo as much as possible, was deemed to be the only way forward.

Hannah Greene is an associate at Family Law in Partnership. She advises on all aspects of divorce, children and cohabitation matters. Contact Hannah at E: hfg@flip.co.uk or T: 020 7420 5000.

This article first appeared in Solicitors Journal, July 2017 and is reproduced by kind permission.

Footnotes:

[1] S1 (2A) Children Act 1989

[2] Re O (A Child) (Contact: Withdrawal of Application) [2003] EWHC 3031 (Fam), [2004] 1 FLR 1258

[3] Re C [2006] EWCA 1765

[4] Re T [2008] EWCA Civ 85

[5] Dayan Y.Y. Lichtenstein, Chief Justice of the Federation of Synagogues in London and its Halachic (Jewish Law) authority.