A judge in England recently refused an application for direct contact by a transgender father, who is now living as a woman.

The father had not seen any of the five children since separating from their mother in the summer of 2015.

Following the separation the children continued to reside with their mother within an ultra-orthodox Jewish community in Manchester, which the father had also been part of prior to the parties' separation.

The father, demonstrating some insight into the complex issues the situation gave rise to, sought a "sensitive reintroduction" to the children, who ranged from twelve to just two years of age.

The mother, backed by the religious community, was strongly opposed to any form of direct contact.

She feared the children would be ostracised by the Jewish community, which was far from accepting of the father's new identity. The children had only ever known their father as a male.

The judge, Justice Peter Jackson, made an order for indirect contact which will enable the father to send letters and cards to the children.

It was apparent from the terms of the judge's decision that he had been extremely troubled by the issues involved in the case and had not come to his decision lightly.

In addition to evidence from the parents, he considered issues of Jewish law and practice and obtained the views of the eldest child.

Courts throughout the UK are required to treat the interests of the child or children concerned as the paramount consideration in making decisions about their care and upbringing.

The judge in this case stressed that his decision should not be viewed as a victory or defeat for either party, but instead a regrettable consequence of the vast gulf between the parents which he considered was simply too wide for the children to bridge.

He focussed on the children's welfare in concluding that the decision to restrict contact to letters and cards was "upholding...the rights of the children to have the least harmful outcome in a situation not of their making."

Although the factual background to this case makes it perhaps an extreme example, there can be no doubt that many families in the UK today do not resemble the traditional model of a white, Christian, heterosexual, married couple with 2.4 biological children.

As a result the courts are faced with the increasingly difficult task of balancing the myriad of issues that the breakdown of a "modern family" can present, while still striving to safeguard the welfare of any children concerned.

The way in which any family breakdown is managed can be crucial in determining how children are affected by their parents' separation or divorce.

Minimising conflict, and shielding children from that conflict, is key.

Court proceedings are by their very nature adversarial and combative.

Litigation should generally be a last resort in matters concerning children.

Methods of alternative dispute resolution, such as mediation and collaboration, not only allow parties to participate more actively in resolving the issues between them but can also facilitate and encourage constructive dialogue going forward which will ultimately benefit their children.


Zoe Wray