As with any dispute concerning arrangements for children after parents separate, if parents cannot agree who their child should live with and spend time with, the family court can make an order. In any family court application, the child’s welfare is the paramount consideration, and the court will expect it to be in children’s best interests to have a relationship with both (or all) their parents. The law is no different if a parent identifies as trans (using the term trans inclusively to cover transgender, non-binary, gender diverse and other non cisgender identities).
For many trans parents the issue of gender identity is not a feature of any dispute concerning arrangements for their children after a separation. But for some it can become a big issue, or be the unstated but underlying reason why the other parent is hostile to contact.
The important case of Re M (2017) involved a trans woman who had been part of an orthodox Jewish community. After leaving the family and transitioning, she had been excluded from her five children’s lives and applied to the family court for help. In court she was initially denied any direct contact, the court being concerned about the implications for the children within their religious community. However, M appealed and won an important Court of Appeal ruling that too much weight had been placed on the discriminatory practices within the mother’s and children’s community and that the children’s right to a relationship with their father should not be ruled out due to potential prejudice against her as a trans parent.
In the context of a parental gender identity issue, the family court should approach an application by a parent who wants to spend time with their child (or live with them) as they would any other application for a child arrangements order. The child’s welfare is always the court‘s paramount consideration, assessed within the framework of the ‘welfare checklist’ as set out in the Children Act 1989. The checklist is:
· The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
· Their physical, emotional and educational needs
· The likely effect on them of any change in their circumstances
· Their age, sex, background and any characteristics that the court considers relevant
· Any harm which they have suffered or are at risk of suffering
· How capable each of their parents and any other person in relation to whom the court considers the question to be relevant is of meeting the child’s needs
· The range of powers available to the court under the Children Act.
The child’s welfare will be determined by the standards of a ‘reasonable man or woman, being receptive to change, broadminded, tolerant, easy going and slow to condemn’. The child’s welfare also has a broad definition, encompassing welfare at the time of any decision and throughout the child’s minority. The court will also be mindful of the Equality Act and the European Convention on Human Rights.
There should be no exceptional considerations or additional hurdles for trans parents and the personal circumstances of the parent, their transitioning journey and any negativity or prejudice from the other parent is not relevant to the application other than how it feeds into the welfare checklist. However, in reality cases involving trans parents may not be that simple, as transphobia or lack of education about trans issues may be a feature of any case and may be dressed up as being relevant to welfare. It can be important to have specialist legal representation from the outset of the case to ensure that this does not happen and the case is fairly decided.
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