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Five “Highly Pertinent” Questions: Discrimination, Contact and the Family Court following Re M (Children) [2017] EWCA Civ 2164

Hassan Khan and Charlotte Baker, barristers at 4 Paper Buildings, present a framework for approaching cases where issues of human rights and discrimination arise in contact cases.

Hassan Khan, barrister, 4 Paper Buildings

Charlotte Baker, barrister, 4 Paper Buildings

Hassan Khan and Charlotte Baker, barristers, both of 4 Paper Buildings 

Re M [2017] EWCA Civ 2164 concerned a transgender father's application for direct contact with her five children, living in an Ultra-Orthodox-Jewish Community. Her application was refused by the Peter Jackson J (as he then was), who made an order for indirect contact only. That decision was subsequently overturned by the Court of Appeal in a judgment which makes abundantly clear that human rights and discrimination issues must be addressed "head on" in the Family Court by both practitioners and judges alike. This guide has been designed to provide a framework for approaching cases where such issues arise, accompanied by a quick reference guide (for which click here). References in square brackets refer to the paragraph numbers of the judgment in Re M.

1. Does the parent have a "protected characteristic" which is being used as a bar to contact?

Protected characteristics include sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or "other status" (see Article 14 of the ECHR). This is not an exhaustive list. Gender reassignment constitutes a protected characteristic, by virtue of PV v Spain (2011) ECHR 35159/09 [§102(iii)] and is included in the list of protected characteristics in the Equality Act 2010 (see Part 2, sections 4 and 7). 

Different treatment: once a protected characteristic has been identified, the applicant parent must be able to show that he or she is being treated differently, as a result of it, compared to another parent in a similar situation. For example, in Re M, the father was treated differently because of her trans status, as compared to another parent leaving the Charedi community.

Who is responsible for the bar? Is it the other parent? Extended family? A community? Someone else? If it is a third party, the Equality Act 2010 may apply.

Is a distinction being drawn between direct and indirect contact? If so, consider why the former is opposed and the latter is not. In Re M, the objection to direct contact was formed on the basis that the community needed to shield and protect the children from the knowledge of matters such as transgender, which made little sense if indirect contact was to continue. Moreover, if indirect contact is possible, it may well be a stepping stone to direct contact.

2. Whose rights are engaged?

The parent with a protected characteristic: Article 14 is engaged when the facts of a case fall within the scope of another ECHR right [§102(i-ii)]. Family law disputes often fall within the scope of Article 8.

The child: the child subject to proceedings will also have rights under Article 14 if he or she is being treated less favourably as a result of a parent's protected characteristic.

The other parent and / or third party: if the bar to contact is founded on alleged religious grounds, Article 9 may be engaged. The definition of "religious belief" is wide-ranging, and manifestations of such beliefs may take the form of worship, teaching, practice and observance. In order to be worthy of respect, a religious belief or practice must have a certain level of cogency, seriousness, cohesion and importance. Article 9 does not protect every act motivated or inspired by religion, and in circumstances where a religious belief is inconsistent with the principle of non-discrimination, it may not be entitled to the protection afforded by Article 9 [§116-120]. In Re M, the Court of Appeal took the view that beliefs which result in the ready exclusion of young children from the rest of the community were unlikely to engage Article 9 [§131].

3. Is the difference in treatment objectively justifiable?

Article 14: if Article 9 is not engaged, then the Court's task is solely to consider whether the discrimination contrary to Article 14 (via Article 8) is justified. The discrimination, not only the underlying measure, requires justification, i.e. even if the measure is justified under Article 8, it will not necessarily follow that it is justified under Article 14. To assess whether a measure is objectively justifiable, the Court must scrutinise the evidence proffered by way of justification to consider whether it amounts to anything more than the subjective, negative attitudes of other people (see, for example, the exclusion of all gay people from the armed forces) [§108-9]. In Re M, the Court of Appeal has anticipated that the High Court may wish to scrutinise with care the suggested justification for the apparent discrimination which the father faces on the grounds of her transgender status [§115].

Article 9: Article 9(2) makes it plain that freedom to manifest one's religion can be subjected to limitations prescribed by law and necessary in a democratic society, or for the protection of the rights and freedoms of others. Religious freedom can be limited, for example, where it involves physical or psychological harm to children [§72]. A Court may make a child arrangements order (having determined that it is in the best interests of the child to do so) even if the implementation of that order does not fully respect the religious beliefs, practices and observances of the community of which the children are members, if those beliefs are not consistent with the values of a democratic society; a democratic society being one that is subject to the "rule of law" and characterised by "pluralism, tolerance and broad-mindedness." [§122 and §134].

The other parent and children may also have rights under Article 9, which must not be restricted by any greater extent than that permitted by Article 9(2).

4. Is this the decision of a judicial reasonable parent?

The Court of Appeal's guidance as to the role of judges considering such cases cannot be improved upon and are set out below, in full [§60]:

"The function of the judge in a case like this is to act as the 'judicial reasonable parent', judging 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. We live, or strive to live, in a tolerant society. We live in a democratic society subject to the rule of law. We live in a society whose law requires people to be treated equally and where their human rights are respected. We live in a plural society, in which the family takes many forms, some of which would have been thought inconceivable well within living memory."

5. Has the Court grappled with all available alternatives before abandoning hope?

Per Re C (Direct Contact: Suspension) [2011] EWCA Civ 521, [2011] 2 FLR 912, the Court has a positive duty to attempt to promote contact; must grapple with all the available alternatives before abandoning hope and must be careful not to come to a premature decision. Contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

As always, welfare is king, and the Court must take a robust approach to intransigence, as it would in parental alienation cases [§61-68].

Where there are difficulties re-establishing and maintaining contact, specialist organisations may be able to offer insight and assistance.

Hassan Khan was instructed as junior counsel representing the father in the Court of Appeal by Anne-Marie Hutchinson OBE QC (Hon) and Colin Rogerson, Dawson Cornwell.