In J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4, J and B, an Ultra-Orthodox Jewish couple, had parted in 2015 when J decided to live as a woman. From then on, though J sought to remain an Orthodox Jew, keeping kosher and attending synagogue when she could do so, she had had no contact with the children because of the attitude of the Charedi community to transsexuals. Peter Jackson J had decided, with regret, to refuse her application for direct contact and, instead, made an order for indirect contact four times a year. J appealed.

The Court of Appeal concluded, in short, that Jackson J had not struck the correct balance between the needs of the children, the wishes of J, the wishes of the mother and the views of the Charedi community generally. In its view, two principles were central to the issues before it: the core principle that the function of the judge in a case like this is to act as the judicial reasonable parent, judging the child's welfare by the standards of reasonable men and women today; and a positive duty to attempt to promote contact, under which the judge was obliged to consider all alternatives before abandoning hope of achieving some contact, to be careful not to come to a premature decision and to stop contact only as a last resort. The court was of the opinion that the approach should have been no different merely because religious belief, practice or observance was in play. Jackson J had not asked a number of highly pertinent questions about such matters as the effects of behaviour that was, or might be, unlawfully discriminatory and how the outcome could meet even the medium- let alone the long-term needs and interests of the children. In short, he gave up too easily and decided the question of direct contact then and there.

As to the issue of Article 9 and the right of the Charedi community to manifest beliefs that resulted in the exclusion of young children from the rest of the community, this did not meet the Convention's criteria for protection under Article 9. On the more general issue of whether a direct contact order would violate the community's Article 9 rights, such an order would be made only after careful consideration with the parties of the children's best interests. If this involved any interference with any rights of the community to manifest their religious beliefs, it was doubted that there would be any violation of the community's rights under Article 9. This was because the court, as an organ of the state, had decided that a restriction of their right to express their religious beliefs served the legitimate aim of protecting the children's rights to have contact with their father and thus to enjoy family life with him, which rights were vital to their wellbeing. The appeal was allowed and the case remitted for a further hearing. [Frank Cranmer]