Presumption of contact with child after parental separation

A recent hearing before High Court Judge Peter Jackson flagged up the often very difficult decisions the Family Court is forced to make when parents separate. The case was unusual in that it involved members of the Ultra-Orthodox Charadi Jewish Community.

The mother and father married in 2001 and had five children born between 2004 and 2014. All of the children of school age attended single-sex faith schools. They had been brought up to adhere to the strict rules of the Charadi Community, which ensured that children were not exposed to outside influences, including television, Facebook and other social media.

The father suffered from gender dysphoria (identifying yourself as the opposite sex) throughout his life and, in June 2015, left the family home and moved away. Since then the father has lived as a woman and might, in due course, undergo gender reassignment surgery. Having previously suffered bouts of depression and having made two suicide attempts, the father is said to be now much more content with her life.

However, the mother refused to allow the father to see the children. The father made an application to the Court for an order that would allow her to see all of the children on a regular basis, to include a provision that they stay with her.

Although the circumstances of this case are somewhat out of the ordinary, the principles the Court applied are relevant to all cases where parents cannot agree about the arrangements for their children following separation.

The Judge made very clear that in considering disputes between parents about the care of their children, the welfare of the children is of paramount consideration. There is also a presumption, unless the contrary is shown, that the involvement of the parent who does not have day to day care of a child will further that child’s welfare.

There are numerous examples of the importance of a child being able to have a relationship with both of their parents. Unless there are very good reasons indeed, the children of separated parents are entitled to know and have direct contact with both of their parents. A Court will only make an order which terminates that right if there is no alternative.

In this instance, the Court, with very considerable reluctance, ordered that the father should have only indirect contact with the children, rather than seeing them face to face. It did so because the evidence before the Court suggested that the children and their mother risked being excluded from the Charadi Community if direct contact took place.

Evidence suggested that others within the Community would cut themselves off from the family and the children might risk being asked to leave their respective schools because of concerns about the impact of the influences to which the children would be exposed by the father and his new life, which might in turn impact upon others, particularly children, within the Community.

The Court was not required to make a judgement about the Community’s attitude to the father’s transgender status, although it was argued by the mother that this was not recognised by the Community. However, it was clear that simply exposing the children to discussions about their father’s transgender status could itself impact upon whether the Community would be content for the children to continue to engage freely with their friends and even their extended family.

Whilst the Court had sympathy for the father, the welfare of the children came first and so the father lost the opportunity to have direct contact with her children.

This case is a timely reminder that parents who cannot agree about the future arrangements for their children need to have regard, first and foremost, for their child’s welfare rather than their own wishes and feelings, and that a parent who seeks to prevent face to face contact will have to demonstrate a very cogent reason if they are to succeed.

If you are in any doubt about your rights and responsibilities as a separated parent you should contact one of our Family team, who would be happy to advise you.

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