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Re J v B (The Children (Ultra-Orthodox Judaism: Transgender)

The importance of contact between a child and a separated parent is wholly recognized by the courts. One would expect that such an approach is applicable to transgender parents. Cases which involve one or more transgender parents have proven to be challenging for the courts. However a recent judgment demonstrates that the court balanced the rights of a transgender parent with the needs of the children including the importance of contact.

Under s.12 of the Gender Recognition Act 2004, the fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of a child. Recently, Mr Justice Peter Jackson was faced with a novel set of facts involving five children, their parents, and their community. The circumstances of this case gave rise to an exceptionally difficult welfare assessment.

J v B and The Children (Ultra-Orthodox Judaism: Transgender) involved a father who had left his family home to pursue his life as a transgender person; the father subsequently had no contact with his five children due to the outlook of the Charedi Jewish community in which the family had been raised. The parent’s marriage ended in June 2015 when the father left the family home, the father then issued an application for contact in January 2016. The father’s position was that he should be re-introduced to the children in his new state, and that they should be assisted to understand his new identity as a woman and be permitted to have regular contact with him in the community. The mother was opposed to any contact between the father and the children, as she believed that this would lead to the mother and the children being ostracised by their community. Her case was that this may ultimately lead to the family having to move away from the community which was the chosen way of life of both parents.

The Children’s Guardian concluded with hesitancy that the benefits to the children of resuming contact with the father would be outweighed by the harm caused to them by community reaction. Mr Justice Peter Jackson weighed up the consequences for the children’s welfare of making an order for direct contact with their father. He reached the decision that there was a real likelihood of the children and their mother being banished by the ultra‐Orthodox community, and on that basis refused the father’s application for direct contact. He granted indirect contact four times a year for each child.

The decision reached in the case and the content of the judgment demonstrates a profound analysis of the facts and evidence presented to the court. The Judge considered and balanced the rights of the transgender father alongside the significance of contact in the circumstances, against the needs of children to be accepted by their ultra‐Orthodox community.

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