What did the Court of Appeal decide, and to what extent does the judgment clarify the law in this area?
The following core points were emphasised:
- the judge’s function is to act as the ‘judicial reasonable parent’, judging the child’s welfare by the standards of the reasonable man or woman in 2017 and with regard to the changing nature of society, including shifts in social attitudes;
- the reasonable man or woman is receptive to change, broadminded, tolerant, easy-going and slow to condemn; the laws of our society require equal treatment of people and respect for their human rights;
- family life within our plural society takes many forms;
- the judge has a positive duty to attempt to promote contact and must consider all available alternatives; and
- contact must be stopped only as a last resort and once it is clear that the child will not benefit from continued efforts (paras  and ).
The Court of Appeal found the following:
- by being led by the practices of a community that he described as discriminatory, the judge did not act as the ‘judicial reasonable parent’, and he should have challenged the parents and community with the consequences of their position, including the possibility of transferring residence from one parent to another, making the child a ward of court or contemplating care proceedings under s 37 of the Children Act 1989; his conclusions did not address the medium or longer-term interests of the children or the father’s role in their lives (paras  and );
- the judge had failed to address ‘head on’ the human rights and discrimination issues arising in this case (para );
- the judge did not explain why indirect contact was feasible if direct contact was not, given that the community’s aim was to restrict knowledge of transgender issues (para ); and
- the judge made a premature decision on direct contact without any attempts to ‘make it work’; A final decision on direct contact should have been deferred pending further work, including that envisaged by the guardian and the Anna Freud Centre (para ).
The matter was remitted for further hearing before Hayden J, in the expectation that a compromise position would be reached. The Court of Appeal observed that the best interests of the children in the medium to longer term necessitated more contact with their father. While the children were likely to have received professional assistance by the time direct contact took place, the court must ‘persevere’ with the issue of contact (para ).
What are the practical and/or wider implications of the judgment? Why is the case significant?
This appeal considers how the court should manage the impact of discriminatory behaviour on a child when evaluating welfare. The outcome is rightly deemed to have ‘profound significance for the law in general and family law in particular’ (para ).
While Peter Jackson J found that psychological harm would be caused to the children if rejected by their religious community, the Court of Appeal went further. It was determined that freedom of religion reaches its limits when it involves psychological harm to children (para ). It was also emphasised that religious issues should not restrain a court from taking a robust approach to intransigence in contact cases (para ).
While the Court of Appeal declined to determine issues arising under the Equality Act 2010 (EqA 2010) or the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the following guidance will assist both family law and human rights practitioners.EqA 2010
Only the children’s school was potentially in breach of EqA 2010 – the idea of ‘community’ is too nebulous (para ). ‘Associative discrimination’ falls under the Act. Should a school therefore discriminate against a pupil because of a parent’s transgender status, that constitutes direct discrimination (para  and ). Discrimination motivated or mandated by religious belief does not make that discrimination lawful (para ).
As a matter of public policy, unlawful action under EqA 2010 should not be treated as a reason to refuse direct contact (para ).
Article 14 ECHR
The court is under a duty to act in a way that is compatible with ECHR rights under s 6(1) of the Human Rights Act 1998 (HRA 1998), including the right to enjoy ECHR rights without discrimination (Art 14) (para ).
This issue was insufficiently addressed by Peter Jackson J. Parental agreement cannot absolve a court of the duty to comply with HRA 1998 (para ).
Article 9 ECHR
Article 9 provides for freedom of thought, conscience and religion, but distinguishes between having internal beliefs and manifesting those beliefs. The latter can be restricted under Art 9(2) by the necessary limitations of a democratic society or for the protection of the rights and freedoms of others. Such restriction must be proportionate and promote a legitimate aim (para ).
The required level of cogency, seriousness, cohesion and importance of any belief must be established, but it is not for the court to consider the legitimacy or manner of manifestation of that belief (para ). In the light of the father’s protected characteristics under EqA 2010, a discriminatory religious belief – particularly ostracisation of children from the community – might not be protected under Art 9 (para ). The community would therefore be expected to exercise flexibility in respect of their religious beliefs. In any event, enabling contact between father and child might justify a restriction under Art 9(2) (para ).
An order for direct contact was unlikely to violate the community’s rights under Art 9. This is because restricting the right to express religious beliefs would protect the children’s right to enjoy family life with their father (para ). The interests of the child remain the paramount consideration in matters of religion.
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