Should children always have contact with both parents?

March 20, 2017

Justice Peter Jackson has recently reached a conclusion that a transgender mother (the children’s birth father) should only have very limited indirect contact with her five children due to the pressure and disapproval of the ‘ultra-orthodox community’ in which they live as a result of her transgender character.

The community

The woman, who is the biological father of the children, left the Jewish Community 18 months prior to the decision of the Family Court. She understood her Jewish Community had strong views on her being a transgender person however she had hoped she would have the support to be slowly integrated back into her children’s lives.

Children can be affected drastically by the smallest of changes in their lives. These children were brought up in a strict ‘ultra-orthodox’ Jewish Community, and every aspect of their lives was integrated with the community. Justice Jackson said “these children are caught between two apparently incompatible ways of living, led by tiny minorities within society at large. Both minorities enjoy the protection of the law: on the one hand the right of religious freedom, and on the other the right to equal treatment”.

Best interests of the children?

Debates are currently arising as to whether this decision was solely made on the basis of the best interests of the children or whether the faith of the community overruled any welfare issues of the children. These children will now grow up with limited indirect contact consisting of 4 letters per year, from the person who is their father. There is no evidence of the children ever suffering harm from their father, the only issue that has arisen is that he underwent transgender operation.  The main issue for consideration, was that experts gave evidence, that contact with their father would inevitably lead them to be ostracised from the ultra-orthodox community in which they live which, it was considered, would lead to more harm to the children than a very limited relationship with their father would.

What does this mean for parental rights?

The message to take from this case is that the welfare of the child should always be considered a paramount when discussing whether they should continue to have a relationship with both of their parents. There is a presumption of parental involvement, which is capable of being rebutted (as in this case there is no direct contact with the children). However, unless serious harm will be incurred by the children as a result of contact, children should and will have an ongoing relationship with both of their parents. When the Court is involved the Judge has to determine their decision on a case-by-case basis.

If you are having any difficulties agreeing the arrangements for your child or children you may wish to consider mediation. The involvement of a third party can often allow civil negotiation to take place which is more favourable and less stressful than a full Court process.

At Edward Hands & Lewis we can guide you through negotiation, mediation, collaborative processes and court processes relating to child contact and care. If you have any questions, please contact us on 0800 999 8880

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