When should a child’s trans identity be permitted to be a material issue in a family case?

Part 1 of Family Child Law Series

Pre-Intro Comments

I admit I felt slightly overwhelmed by the plethora of issues I could talk about on the #TLB which has led to me procrastinating writing my first post (it’s true: lawyers are only human…and need to be given deadlines). However, I reminded myself that I got more than 10 retweets (which is rare for me) and that I therefore owed it to my fans to write something: so here we go…

FIRST OFF ­­— lawyers, those interested in law/legal theory (and those that are thinking of being so) please note: being trans[1] may or may not have an impact on issues faced by trans people. I’ll be looking at when being trans may have an impact on legal scenarios.

Opening

This is the first of a four-part ‘series’ that shall focus on child family cases that involve people who identify as trans[2].

This first post looks at the delicate scenario of a party submitting that a child’s trans identity should be an issue for the court to consider within family proceedings.

Introduction

As a matter of legal principle and good practice (and to avoid frustration from the Bench), a child being trans should not come in to a case’s dialogue unless:

  1. it is materially relevant to an issue in question; or
  2. it can be legally justified as a materially relevant issue in and of itself, i.e. the child’s trans identity is a contested ‘fact’.

(Hereafter, the ‘Issue’.)

I would suggest that these two Issues are inherently interlinked, but that Issue (ii) can only ever be justified within the context of Issue (i). It would and will always be deeply problematic and symptomatic of the historic ‘gender policing’ (to which the trans population, both in the UK and across Europe, have been subject to) should the court be used to decide on whether someone, in this case a child, is ‘actually transgender’ or not. This is not the courts (nor anyone’s) – save for the individual themselves – right.

It seems in considering these Issues within the context of child law, that unless it is submitted that a child being trans is as ‘a result of harm’, court time cannot be used to consider the child’s gender identity; let us not forget that which is paramount to the family court: the child’s welfare.

In those cases a child’s gender identity is considered, the Issue must be dealt with incredibly delicately. Not doing so would be extremely dangerous as it would have an intrinsic risk of violating the subject child’s Article 8 and Article 14 rights, but it is also exposing a child to a triggering scenario that may subject them to psychological harm.

To mitigate such a risk, any conversation (and hearing) on the Issue can only be had with the following principle at the heart of it: someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings.

More often than not, if a child says they are trans, they will be trans. Asserting the counter argument is often premised on the idea that being trans is ‘not natural’ (i.e. must have been due to environmental reasons) or not desired for any child. This attitude should have no standing in modern day and our courts must make this clear within decisions going forward. The argument that a child being trans is a result of harm must have an incredibly high threshold to satisfy and one that I imagine (and hope) will require robust expert evidence if the Issue is to be permitted to be considered in future cases. This position is borne from the following principle, which all should keep in mind throughout these types of cases also: A child being trans is not evidence of harm in and of itself. The Issue in relation to a young person’s gender identity can only be premised on conduct that may be exposing a child to harm, which as we know is the basis of any Section 31 application or Section 37 investigation.

 “My partner is making my child trans”: Initial considerations

Questions practitioners should be asking when approached with such an instruction by a client:

  • How should practitioners approach it with the care it requires?
  • How should the court look to deal with it if it is submitted?

The title of this subheading is a line that I hear on a regular basis and will no doubt form the basis of family applications going forward. Such assertions must be dealt with the utmost care and practitioners certainly should be ready to explore any such suggestion made by clients to ensure that no court time is wasted, but more importantly, to ensure that the dignity of the child is maintained and human rights respected.[3] Considering this, courts making any determination/finding in relation to a child’s gender identity should be alive to the fact that there could be a claim for unlawful interference if not relevant and necessary. And a question around whether a decision of this nature can ever be justified as relevant and necessary needs to be asked.[4]

Practitioners must not ignore the reality that trans children exist and that the subject child on their case could indeed be trans themselves. Within this context, a legal battle premised on this existence being questioned could trigger a future of distress and harm for that young person. Our family courts cannot be involved in such work if there are no concerns for the child’s welfare.

It would be prudent for us all to be woke to trans existence being subject to a degree of negative political/social dialogue currently (to put it mildly). As a result of this climate, assertions such as the above subtitle may be more frequent. Acknowledging this, we must all instil an even higher level of due diligence around our merit reviews than would perhaps ordinarily be the case when taking such instructions.

Those Rare Cases

Alas, as indicated above, there may be rare cases where a child identifying as trans is thought to be an Issue by the court.

An example is the case of Re J (A Minor) [2016] EWHC 2430 (Fam)where the child’s gender identity was a concern that was raised by the father and thereafter investigated as a result. The relevance and necessity in this case therefore was borne from the applicant rather than the court itself. Re J started off as a private application by the father that led to a Section 37 investigation being ordered. The case was eventually transferred to the High Court and in the end a final Care Order was made by Mr Justice Hayden to the effect that the child was placed with the father together with a contact order for the mother (which the local authority could review).

I am not here to comment on the decision of this case. Instead, I refer to it because the decision around residency and contact was ultimately made as a direct result of the court considering whether the child (who is explained in the judgment to have been presenting as a boy whilst in their father’s care and as a girl in their mother’s care) was being ‘forced to be transgender’ by the mother or not. The father sought to allege that the child was suffering harm within the mother’s care as a result of ‘being forced’, and on that basis asserted that the child should live with him. Therefore, the issue of whether the child was trans was deemed to be relevant and material to the outcome of the application because it was decisive of whether the father’s allegations of abuse were valid or not. The concern from the father in this case was ultimately that the child may have been seen to be reacting to a form of emotional harm and identifying as trans as a result, not whether the child was trans or not in itself.

Further case law is needed to clarify the nuance between the scenarios of ‘forcing a child to be trans’ as emotional abuse in itself, and a child identifying as trans can be a sign of other ‘emotional abuse’ happening in the home. Here, the argument seemed to be the former.

Should the Issue be tested before proceedings consider it in full?

Of course, family cases are supposed to be timetabled in acknowledgement of the disruption proceedings can cause to family life (e.g. public cases should be timetabled for their completion within 26 weeks[5]). However, what is fast enough when dealing with a young person’s gender identity? Should we not have a faster mechanism in place that deals with an assertion that essentially questions the existence and nature of a child? Can we do more to clarify whether an alleged Issue holds merit at an earlier stage to mitigate potential emotional harm proceedings could have on a trans child?

Some food for thought as to how to approach the issue include creating a Practice Direction (PD) similar to that of Practice Direction 12J to ensure that cases dealing with a trans children are dealt with in a uniformed and gentle way. This PD could involve an approach similar to what we see in Ancillary Relief cases in which the parties are obliged to file a concise statement of issues 14 days before a first appointment hearing[6] that would deal with the specific Issue. Parties would be expected to summarise their apparent cases around the Issue so the court can take a view as to whether there is enough factual evidence to warrant full proceedings with the child’s gender identity considered as part of that. We must also consider whether there should be the option of calling expert evidence to such appointments.[7]  

Whatever the answer (and I’m keen to hear your ideas and thoughts), it is vital that a child’s dignity is maintained throughout and that they are protected from the family court becoming a court of gender policing.

NEXT – Part 2: When is a parent being trans an issue?


[1] When I use the term transgender/trans this also includes those that identify as non-binary, gender fluid, agender, gender queer etc… (non-exhaustive)); I write ‘trans’ with a fully inclusive intent.

[2] I have phrased it this way considering the blog’s title and purpose.

[3] See UNCRC Preamble: “Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity” as well as Article 8(1) “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.” (Non-exhaustive list of child rights that could be deemed relevant here.)

[4] Something that we shall explore in the blog looking at expert evidence.

[5] https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12a#para.

[6] Family Procedure Rules, Rule 2.61B(7).

[7] A separate blog post will address the issue of expert evidence.

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