After a prolonged custody battle, the High Court finally announced its verdict on a landmark physical custody case that has since captivated the media and legal community.The High Court announced that a seven-year-old child, who had been “living life entirely as a girl” had been removed from their mother’s care, with full physical custody awarded to the child’s father. Over the last three years the father has been denied access to the child, giving rise to a case that has pushed pertinent and political issues to the fore of court decisions. The judgment claims that the mother had “caused significant emotional harm” to the child, known only as J, through her conviction that her child, who was born male, identified as a girl. The case was heard by Justice Hayden in private hearings in the Family Division of the High Court.
The child’s parents had separated within a year of the birth, and the child had lived with the mother. It was an acrimonious break-up and, by 2013, child contact arrangements for the father had broken down. The father then applied for a Child Arrangement Order to restore contact.
The mother vehemently opposed the father having contact with her child, citing abuse, drinking and his resistance to recognise the child´s gender variance.
The former claims were all declared unfounded in court but the latter brought the issue of the child´s gender identity to the fore.
When the child was four the mother had sought out specialist help and later used female pronouns and allowed her child to choose girl´s clothes. She maintains that her child is a transgender girl who struggles with gender dysphoria, a condition where a mismatch between biological sex and gender identity causes severe distress.
As the father´s contact case moved on, the mother was subjected to numerous interventions when anonymous calls were made to social services in relation to her child’s gender, but no evidence of abuse was found. However, the case was transferred to the High Court amidst mounting concerns for the child´s welfare. By this stage the child was fully presenting as a girl.
As the basis of the abuse claims, the child´s gender identity became a custody battleground.
Justice Hayden´s judgment argued that it was the mother´s “active determination” that her child should be a girl that was harmful rather than the “puzzled” father who had “a less strong investment” in J´s gender identity:
“This is not a case about gender dysphoria, rather it is about a mother who has developed a belief structure which she has imposed upon her child.”
Abusive, or supportive?
Susie Green, the CEO of the transgender child and family support charity Mermaids was closely involved with the case, having supported the family since the child was four.
In an interview with Vardags, Ms Green explained that trans-supportive parents are often accused of being abusive:
“The mother has been branded as abusive … and the child’s voice went completely unheard.
Hundreds of families are in the same position. There isn’t the training, and there have been a number of occasions where social workers get called in and they don’t understand so they immediately take it up to the next level and make it a child protection issue. Then it goes to courts when it shouldn’t.”
Certainly given that there is little accepted orthodoxy about how to raise transgender children, gender issues and parenting issues are indeed easily conflated. Every case might be different, but the instinct to jump to the conclusion of abuse is a dangerous one. Central to the problem is that, with all the controversy surrounding transgenderism, people find it hard to agree what might be in the child’s best interest.
The ‘best interest’ principle
Is the trans-supportive parent looking after their child’s best interests? “Yes” says Ms Green. That’s “absolutely the truth”. She cites a recent Washington survey which shows that, despite the astronomical 48% suicide attempt rates in transgender youths, children who are supported to transition early, and brought up in accepting households have no worse mental health than the general populace.
With no real legal precedent in the UK, the decision is in the hands of the judiciary. Similar child custody disputes in the US, including Williams v Frymire  in Kentucky and Smith v Smith  in Ohio, which was subsequently appealed, both favoured the parent that doesn’t support the child’s transitioning.
Most custody cases are too complex to be reduced to this dichotomy but Ms Green worries what standard this judgement might set:
“We have already had a case of a parent who is supportive of her 10 year old child living as male has now been threatened by her ex partner with court, immediately following this judgement. The implications are very worrying.”
Justice Hayden forestalled this characterisation in his judgment, taking issue with the narrative of supportive mother and unsupportive father. He considered the child was “ill-served by premature labelling”, weighing in on the debate by arguing what was needed from the parent was “the opportunity to develop their identity in which ever way it evolves.”
The view is not intolerant, but certainly countenances more ambiguity and restraint compared to the intervention the mother felt necessary to protect her child’s wellbeing.
One missing link between the two approaches is medical input. The judgment refers to the “history of [the mother’s] non-compliance or partial compliance with professionals”. Similarly Ms Green has pointed out that two independent psychologists with extensive experience of gender issues in children …were ignored and given no weight in the judgement”.
However they find themselves in agreement concerning the inadequacy of local social services. Justice Hayden condemned the “naivety and professional arrogance” of the local social services for dismissing concerns about the mother’s parenting. However Ms Green contests Justice Hayden’s characterisation of the local social services as radically permissive.
“In this case, the fact that Social Services repeatedly found no issues in the Mother’s parenting is a positive report, when all too often these agencies let families down.”
“NHS waiting times are long and medical and social workers can be very obstructive”, she says, dispelling myths of uber-liberal state services.
It is undeniable that youth referrals to gender clinics are nearly always spearheaded by parents, who have an unequalled ability to act for their children.
It seems unhelpful for parents therefore that gender dysphoria isn’t covered in training for social workers, mental health and general practitioners, teachers, police or other professional bodies. A survey at the Royal College of Nurses this month revealed that only 14% of nursing staff said their current service was equipped to meet the needs of children who identified as transgender or non-binary.
“For parents it feels like a constant battle”, Ms Green shares, “every waking minute of every waking day”.
Unheard, unknown, unchanging
Parental disagreements about children’s gender identity are a relatively recent phenomenon and there is little precedent for a court to defer to. Opposition continues relatively unheard over European laws that require divorce as a prerequisite for legal recognition of a changed gender identity. It would seem that English courts are ill-prepared for the gender issues they will increasingly face in family law cases.
Whatever the truth of this case might be, it reveals some worrying trends.
That a custody case crystallised into a two-sided opposition between the mother and the judiciary, each touting their opinion of the child’s gender, undermines both parties and the proceedings as a whole.
That parents alone must pursue referrals to gender dysphoria services deemed necessary to be available, but so difficult to access, is absurd.
That they are so customarily accused of abuse, or amateur enthusiasm is damaging.
If it weren’t unfortunate enough that a child should be bandied about under the scrutiny of prolonged litigation, the dearth of professional training in gender issues stalled a secure outcome for the child.
J was failed by a system that couldn’t agree on what, if anything, was going wrong. The one certainty is that a child has suffered as a result.
You can read the full judgment here.
Mermaids have condemned the Judgment on Twitter as a “huge injustice and transphobic practice”. An online petition has also challenged the judgement.