It’s not the job of the courts to change society
By:1 commentFebruary 1, 2017
On Monday Mr Justice Peter Jackson handed down a judgment that made the headlines in various newspapers, including this in The Independent:
“Transgender woman stopped from seeing children because it is ‘incompatible’ with their Jewish faith”
Briefly the case, J v B (Ultra-Orthodox Judaism: Transgender), concerned an application by a father for contact with the five children of the family. The family belonged to the ultra-Orthodox Charedi Jewish community. The parents’ marriage ended in June 2015, when the father left home to live as a transgender person. Since then, she has had no contact with the children due to the attitude of the community to people in her position, hence the contact application. Expressing “real regret” Mr Justice Jackson concluded that the father’s application for direct contact must be refused, due to his:
“…unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.”
In the circumstances, Mr Justice Jackson ordered indirect contact only, via letters four times a year.
The decision has understandably not gone down well in many quarters, but despite his obvious misgivings, Mr Justice Jackson was only doing his duty. That duty is of course to apply the law, which in private law children disputes means deciding what he believes to be best for the welfare of the children. In this case he reluctantly came to the conclusion that it was best for them not to have any direct contact with their father. Whilst it is of course possible that the decision could be overturned on appeal, Mr Justice Jackson cannot be criticised for not doing his job.
If there is any fault in all of this then it does not lay at the door of the court, as Mr Justice Jackson made clear. After considering the evidence concerning the reaction of the community to an order for direct contact he said:
“In these circumstances, I do not consider that there is any real prospect of a court order bringing about a beneficial alteration in the attitude of the community towards this family, even to the extent of some relatively limited normalisation of approach. This must be a subject for regret, not only for this family, but also for others facing these issues in fundamentalist communities, for whom this will be a bleak conclusion. However, these considerations cannot deflect the court’s focus from the welfare of these five children.”
He was, however, concerned at the evidence of the practices of schools within the community, which suggested that the children may be barred from the schools if they had contact with their transgender parent. Such practices, if they exist, would of course amount to unlawful discrimination against and victimisation of the father and the children. Mr Justice Jackson therefore stated at the end of his judgment:
“In the light of the response of the schools to this family’s situation, I shall send a copy of this judgment to the Minister of State for School Standards at the Department for Education. If change is required (and that is for others to say), responsibility must fall on the shoulders of the schools, the community and the state, and not on the heads of young children.”
And that is the point: the court is only concerned with the welfare of the children. If any change is required, then that is not for the court to bring about. Much as we may want them to do so, it is not the job of the courts to change society.
You can read Mr Justice Jackson’s full judgment here.
Photo by Paul Simpson via Flickr
February 1, 2017
Categories: Family Law