(Family Division, Hayden J, 21 October 2016)
Public law children – Gender identity – Child arrangements – Evidence that mother had forced son to live as a girl – Child living as a boy in father’s care – Whether a care order was necessary – Contact with the mother
A care order was made in respect of the 7-year-old child to ensure maximum support for the father.
The parents of the, now 7-year-old, boy separated when he was a year old. Since then he had lived with the mother. Contact with the father broke down in 2013 and the mother remained resistant to contact on the grounds that the father abused alcohol, he had been violent towards her and that he was resistant to the child’s gender variance.
While in the mother’s care the child presented as a girl. The mother asserted to various concerned professionals that the child had been diagnosed as transgender despite being only 4 years old. During local authority investigations those working with the family came to accept that the child should be treated as a girl without independent or supportive evidence that he identified as a girl.
The case was transferred to the High Court. The mother had become less co-operative with professionals and the child was increasingly isolated. The mother had decided that the child should live ‘in stealth’ and was even registered with the GP as a girl. She claimed she had been advised to do so by a specialist facility but when the records were eventually released to the court they did not support that claim. The judge was in agreement with the guardian that the risk of leaving the child in the mother’s care was unacceptable. The child moved to live with the father and his partner.
In his father’s care the child was given the choice of how to dress and activities to engage in but since the removal from the mother’s care the guardian reported that he identified himself as a boy. He had settled well and was reportedly doing well at school.
The court was satisfied that the threshold criteria were met based upon the mother’s rigid approach to gender identity, her resistance to engagement with professional advice and her failure to acknowledge the child's right and need to have a relationship with the father and the significant harm that had flown and was at risk of flowing from those deficiencies. She had caused him significant emotional harm in her active determination that he should be a girl.
The profile and sensitivity of the matters raised by the mother in this case had blinded a number of professionals from applying their training, skills and common sense. They failed properly to investigate the mother’s assertions, in part possibly because they did not wish to appear to be challenging an emerging orthodoxy in such a high profile issue.
Given the reports of contact it was impossible to construe it as anything other than harmful to the child, it was corrosive of his emerging identity and it pressurised him to be something that he did not, at least at the moment, want to be.
Although the child had settled well in his father’s care there remained risks to his well-being. The father would be best supported by the local authority being granted a care order. An order under 34(4) of the Children Act 1989 would also assist in giving the local authority permission to refuse contact with the mother if necessary. Contact would generally be suspended for a period to allow the child a period of decompression and would thereafter take place on a monthly basis.