The Reasonable Judicial Parent and Implacably Hostile Communities: The Presumption in Favour of Contact Remains Strong in Child Arrangements Orders

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Our latest blog post discusses the intriguing case of Re M (Children) [2017] concluded in late 2017. These proceedings covered the topic of child arrangements orders in circumstances where a father had left his former religious community for his decision to live as a transgender woman, and initially ruled to only have indirect contact with his five children.

Re M (Children) [2017] EWCA Civ 2164

The Court of Appeal has overturned a child arrangements order that there is to be no direct contact between five ultra-orthodox Jewish children, aged 3 to 13, and their father who had left the Charedi community to live openly as a transgender woman.

The mother, supported by the children’s guardian, contended that direct contact would be harmful for the children because they would be alienated by their religious community, who would not accept the father’s new identity or lifestyle.

Mr Justice Peter Jackson heard extensive evidence from eight live witnesses including both parents, two Rabbis, a charity worker, and a foster carer, as well as read statements from various other members of the Charedi community and met with the eldest child, then aged 12.

Jackson J reached the reluctant conclusion that direct contact between the children and the father would be harmful to them overall given the discrimination and alienation the Judge found the children would suffer if they had direct contact. The Judge did however order indirect contact in a child arrangements order.

The Court of Appeal considered that the Judge had failed in his duty to act as the ‘judicial reasonable parent’. This required him to:

“…judg[e] the child’s welfare by the standards of reasonable men and women today, 2017, having regard to the ever changing nature of our world including, crucially for present purposes, changes in social attitudes, and always remembering that the reasonable man or woman is receptive to change, broadminded, tolerant, easy-going and slow to condemn[Paragraph 60].

It is clear that the ‘judicial reasonable parent’ is an objective standard, with the Judge considering what would be reasonable by the standards of society as a whole, rather than what would be reasonable by the standards of the particular community the family were a part of.

It remains to be seen whether any court will, as a matter of practicality, be able to introduce positive direct contact between the father and children in this highly unusual case. Non-resident parents will, however, take heart that the presumption in favour of contact remains strong, even in the face of overwhelming opposition, not only from the resident parent, but from whole communities.

What is a Child Arrangements Order?

Introduced in April 2014 as a replacement for contact orders, Child Arrangements Orders are legal agreements between the court and the parents and guardians of a child to help ensure their living arrangements act in their best interests.

If you would like to learn more about the law surrounding Child Arrangements Orders, how these are enforced and action you can take should these be breached, please read our previous blog on this topic, or get in touch with our experienced family law barristers.

Dependable Family Law Advice & Representation

Our team of skilled Family Law barristers can be relied upon to provide diligent advice and representation in all cases, particularly those in relation to the Children’s Act 1989. This includes Child Arrangements Order cases in which our professionals have a long history of delivering the best results for our clients.

Please contact us for further information; phone 01245 605040 or email clerks@trinitychambers.com.

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