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Transgender Parents and Private Law Children Proceedings

Lyndsey Sambrooks-Wright, barrister of 2 Dr Johnson's Buildings, considers issues arising in private law children proceedings when one parent undergoes gender reassignment.

Lyndsey Sambrooks-Wright, barrister, 2 Dr Johnson's Buildings

Lyndsey Sambrooks-Wright, barrister, 2 Dr Johnson's Buildings

Cases in which one parent is undergoing gender reassignment present specific challenges for any practitioner. Whilst there is little relevant guidance forthcoming from public law proceedings, the issue arises increasingly regularly in the private law arena. This article therefore deals with private law proceedings when one parent is transgender, whether pre- or post-operative. As all cases predate the changes brought about by child arrangements orders, the terms 'contact' and 'residence' are retained.

Practitioners will also be aware of the concomitant issues arising for transgender clients, whether legislative, procedural, practical or emotional. A subsequent article will deal with issues arising under the Gender Recognition Act 2004, as well as approaches taken by experts in the field.

A child's knowledge and the importance of avoiding delay

A point of bitter contention in gender reassignment cases is the manner in which the children of the relationship should be informed of their parent's new gender role. The non-transgender parent frequently does not wish for this information to be imparted to the child: the transgender parent understandably wishes to reintroduce themselves to the child in their new gender role and build or resurrect a relationship. Problems also arise however when the transgender party does not wish for the children to be informed of their gender reassignment. Whilst J v C and Another [2006] EWCA Civ 551 encompasses a number of discrete points regarding parentage in cases of gender reassignment and artificial insemination, the basic application was simple. The parties had married and subsequently had two children, conceived by means of artificial insemination by donor. Following the breakdown of the marriage, the respondent wife learned that the applicant husband was female at birth. Significant exploration of the applicant's 'correct' gender followed, which is outwith the remit of this article. Ultimately, however, the applicant's appeal against a declaration that he was not the children's father was dismissed.

The court went on to note that the 'real question in the case is how both [children] are to be informed about their respective origins'. The applicant had sought an order that the parties' younger child (who remained within the provisions of the Children Act 1989) should not be informed of her parentage, the reason for the relationship breakdown or the father's gender except in a manner advised by an agreed consultant child psychiatrist. The respondent had previously given an undertaking in similar terms and the applicant's appeal was consequently dismissed. As a footnote, Lord Justice Wall concluded that informing the children of their parenting is 'a highly sensitive matter, but it does not seem to me to be one which is ultimately justiciable by way of orders under CA 1989 section 8. What [the mother] says to [the children] is, in my judgment, a matter for her, and not for the court to determine. There is a limit to which the court can and should seek to govern parental behaviour' (paragraph 41).

This approach may surprise many practitioners who have dealt with issues of gender reassignment within Children Act cases, in which the issue most urgently requiring judicial intervention is how to inform a child of their parent's gender reassignment. In the author's experience, such challenges are best dealt with in a comparable manner to issues regarding parentage in other Children Act proceedings: agreeing on a structured approach which avoids delay is paramount.

In the same year as J v C, Re C (Contact: Moratorium: Change of Gender) [2006] EWCA Civ 1765 highlighted the importance of adopting that approach. Lord Justice Thorpe (with whom Lord Justices Wall and Hooper were in agreement) emphasised the importance of breaking the news to children appropriately, without delay and in a precisely planned manner. The father in this matter had not had contact with the children (aged 11 and 8 at the time of the application) for five years. An expert report had urged the importance of telling the children the truth without delay, expressing real concern that they were likely to be damaged if they found out independently. The expert recommended assistance from the National Youth Advocacy Service (NYAS) in informing the children, a suggestion rejected by the judge at first instance. The judge instead put in place a 20 month moratorium on proceedings with indirect contact only; only towards the end of that time would the mother effectively be required to inform the children of their father's gender reassignment.

The court held on appeal that Coleridge J had failed to distinguish the two separate issues of contact and disseminating relevant information about their father's gender to the children. Coleridge J recognised the importance of the children being told the truth sooner rather than later and particularly before they could discover it for themselves: the moratorium imposed stood in the way of that objective. The children were therefore joined as parties and NYAS involvement was directed.

Perhaps reflecting a growing recognition of the need for speed when dealing with children, Re T (A Child) [2008] EWCA Civ 85 rejected an appeal from the applicant – the child's biological father – that the child should not be informed of her gender reassignment. The applicant had a relationship with the child in her new gender role. The applicant objected on the grounds that the child was too young for such information at 8 years old and that this knowledge would damage her relationship and contact with her son. Lord Justice Wall was sympathetic to the applicant but noted that 'conventional wisdom is that a child, one of whose parents has undergone gender reassignment, needs to be told at as early a stage as is consistent with his or her welfare that this is what has occurred, so that the child can adjust to the change and, it is hoped, maintain a relationship with the parent who has undergone the change' (paragraph 3).

In a rather different approach from that set out in J v C, Wall LJ gave detailed instructions regarding the information to be imparted to the child. Such information included the identity of his father, the fact that the father had undergone gender reassignment, the father's new identity and clarification as to the parents' biological roles. The child would also be made aware of the identity of his paternal grandparents, often one of the first familial links to break in any private law matter.

Under s12 of the Gender Recognition Act, the fact that a person's gender has become the acquired gender does not affect their role as father or mother of a child. Any appropriate application for parental responsibility should feasibly prove less problematic than the issues of disclosure and – the most problematic – contact.

Contact between the child and transgender parent

The importance of contact between a child and their parents is fully recognised by the courts and it is arguable that such an approach applies just as fully to transgender parents. Pertinent authorities on contact between transgender parents and their children are, however, few and far between. In the authorities noted above, contact was not wholly ruled out but did not resume within those proceedings and the outlook was generally bleak.

In Re C, Lord Justice Thorpe went further by suggesting that the father's application for contact was potentially unwise. He noted:

'The father might well in this case have sought not an order for contact; he might have accepted that that was something that could only develop in a, perhaps, distant future of the children's own volition; he might have sought only the order to ensure that they were protected from chance discovery of the reality' (paragraph 12).

It is fair to note that there had been no contact in this matter for five years, contact apparently ceasing when the father began to live as a woman. Proceedings also seem to have been put on hold whilst the father underwent gender reassignment surgery. Given the inevitable delays incurred when a parent transitions to another gender – as well as the time and emotional effort often required for the other parent to accept that change – it is a sad reality that most cases may involve a significant break in contact.

One exception is a situation such as that set out in Re T, where contact has continued in the new gender role but without the child knowing the relation between the parent and him or herself. The court held that the 'critical issue in the case is whether or not and in what circumstances the applicant should be able to resume her relationship with her son. That is the crucial issue. ...S is rising eight, he will be eight at the end of this year, and of course he has his entire life before him. I agree with the applicant when she submits that it is very important that we should now, if possible, get things right so that the relationship can be restored at an early stage, and S can form – or re-form, I should say –  a proper and sensible relationship with the applicant'.
The likelihood for contact succeeding will inevitably turn on the preexisting and current relationship between the transgender parent and their child. In a case where one parent is immovably hostile to the idea of contact with the transgender parent, it is unfortunately doubtful that contact will resume in an organic way. Practitioners representing transgender clients might derive some small assistance from the hope expressed within Re T that a child should form or resume their relationship with a transgender parent where possible.

Expert assistance for children and parents

It is, of course, accepted that the gender transition of one parent can present extreme emotional challenges, both for the other parent and for the child. Expert evidence had been sought in Re C and the difficult issues surrounding gender reassignment were highlighted for the court. Professional support was recommended, particularly given the mother's reaction to the father's decision. The expert in that matter emphasised that the highly specialised work required could not be undertaken by the Child and Adolescent Mental Health Services (CAMHS), which – at least at that time – did not have the resources. The expert recommended the National Youth Advocacy Service (NYAS), which was willing to complete the work.

NYAS was able to provide a specialist social worker to assist in Re C, whose suitability to undertake the work was not in doubt. Despite the increasingly scarce resources available in the family courts, particularly in relation to expert evidence, it may be that psychological or sometimes psychiatric assistance will be more appropriate in certain cases. Such was the approach taken in Re F (Minors) (Denial of Contact) [1993] 2 FLR 67, albeit not in the current financial climate. The children were aged 9 and 12 and had previously lived with both parents. Following the father's departure from the home, the elder child – unaware of the father's gender dysphoria at the time – refused to see him and received assistance from a child psychiatrist in treating consequent phobias. The younger child had seen his father dressed in his female role and also refused to see him: the psychiatrist was clear that the younger child suffered no psychiatric illness.

It is to be hoped that, whether with the intervention of expert assistance or simply a judicial guiding hand, any issues experienced by the children could be overcome to allow contact to resume. It was emphasised in Re C that the judge at first instance might have assisted the mother in making the 'adjustments that have to be made, for the sake of the children, if he had more strongly emphasised to her the very deep psychological roots and impulses that underlie transsexuality'.

Many transgender parents will have to overcome a significant amount of emotional and practical resistance from their ex-partners. In Re L (Contact: Transsexual Applicant) [1995] 2 FLR 438, an unmarried couple had separated when their daughter was four years old; the father (the applicant) continued to have regular contact with the child. The applicant had experienced gender dysphoria from a young age and began the process of gender reassignment. The applicant presented as a female in public but reverted to a male role for the purposes of contact, meaning that the child remained unaware of the applicant's transition. This approach was ultimately unsustainable and the respondent mother refused to allow any further contact. No contact took place for nine months, during which time the applicant had almost finalised her transition to the female gender.

Thorpe J held that the applicant had clearly displayed sufficient commitment and attachment to warrant a parental responsibility order. The issue of direct contact was however conceded by the applicant at the conclusion of the hearing. Indirect contact was ordered and a family assistance order made.  The application for direct contact was adjourned in the hope that therapy would assist the mother to accept the position, although she appeared adamantly against this course.

Thorpe J noted that 'transsexuality is a huge challenge for any family, particularly when its emergence postdates the breakdown of the relationship and when its progress is so rapid and when its disclosure is through antagonistic and not co-operative channels of communication'. Thorpe J therefore felt that 'the strength of the mother's emotional rejection of what has happened' and any therapeutic assistance was 'entirely understandable'. The reaction of the non-transgender parent is of course case-specific and it should not be forgotten that many families manage to adapt to their new reality, often without the assistance of the courts.

The way forward

Even within the current funding regime, expert assistance for children should be sought wherever possible. Whilst it is highly unlikely that the legal aid budget would stretch to therapeutic input for the non-transgender parent, every effort should be made to locate alternative resources. Importantly, the non-transgender parent should be encouraged to engage with any professional assistance offered during a potentially profoundly painful time. The non-transgender parent often becomes the child's primary carer and may correspondingly have to act as their primary support whilst the child adjusts emotionally: therapeutic input for the parent may be imperative. The emotional challenges of gender dysphoria and gender transition cannot be understated for either parent but the potential damage for a child of the process being managed inappropriately must supersede both.

The wider family, despite being outside the remit of the court, will also play a significant role in the child's ability to accept the new reality. In conjunction with expert intervention, is there also a role for family mediation to assist in the transition – both physical and emotional – that the family will need to undergo? 

(Some terminology in this article has been revised: 17/3/18)