Court information for transsexual parents.
DIVORCE proceedings are heard by a Judge in the County Court. Orders relating to the children of the marriage are usually dealt with at the same time. The County Court will usually keep jurisdiction in any case involving children, in respect of whom it has already made an Order. However, if no such Orders are made then and disputes arise at a later date in relation to the children, these matters, as well as matters relating to the children of unmarried parents, may be dealt with in either the County Court or the Magistrates' Court. The relevant law is The Children Act 1989 [CA 89]. The first principle of the CA 89 is that the child's welfare is paramount. However, this now has to be balanced against Article 8 of the Human Rights Act [HRA] which gives greater rights to parents:
"Everyone has the right to respect for his** private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
The most frequently sought Orders are:
• PARENTAL RESPONSIBILITY ORDER (PR) [section 4, CA 89]
• CONTACT ORDER [section 8, CA 89] (old-style access)
• RESIDENCE ORDER [section 8, CA 89] (old-style custody)
The 'standard of proof' in Family Courts is 'the balance of probabilities' [unlike criminal courts where matters have to be proved 'beyond reasonable doubt']. Traditionally, family proceedings have not been open to the public. However, members of the Press have had the right to attend but not to report in such a way that a child could be publicly identified.
* - applies to Courts in England and Wales, not Scotland.
** - 'his' is not gender-specific. It is used throughout the HRA to indicate any individual.
The Human Rights Act [HRA] may alter the situation slightly. Article 6 reads:
"Judgement shall be pronounced publicly, but the press and the public may be excluded from all or part of the trial in the interest of morals, public order or national security, in a democratic society where the interests of juveniles or the protection of the private life of the parties so require..."
The 'parties' to the case are those with Parental Responsibility, so mothers certainly and possibly fathers. Others, e.g. grandparents, may be joined as parties at the discretion of the court. If you are applying for an Order, you are the Applicant, your ex-partner is the Respondent.
PARENTAL RESPONSIBILITY [PR] ORDERS
A person with Parental Responsibility (PR) will include: the natural mother automatically; the natural father, if married to the mother at the time of child's birth or having subsequently married her, or having a section 4, 1a Order or 4,1b agreement (Children Act CA 1989); anyone with a Residence Order, §8 and §12, CA 89 or a Care Order, §31, §33(3) CA 89; anyone with a Special Guardianship Order, §14A, CA 89, an Adoption Order; or a Placement Order (§22 Adoption and Children Act 2002). Under a Placement Order the Local Authority and prospective adopters share PR, alongside any parents who have PR. The local authority determines the extent to which the PR of parents and prospective adopters is to be restricted (§25 Adoption and Children Act 2002). An Adoption Order will extinguish all PR held by anyone other than the adopters. Where step-parents adopt their partners' children, partners who are the natural parent retain PR (§46 3b, Adoption and Children Act 2002).
In relation to births registered from 1 December 2003, a natural father who is not married to the mother of the child but whose name was entered on the relevant child's birth certificate will automatically have Parental Responsibility. Step parents may acquire PR under §4A (CA 89). Where step-parents adopt their partners' children, the partner who is the natural parent PR (§46 3b, Adoption and Children Act 2002). In respect of children born before 1 December 2003, a natural father may now obtain PR by being entered on the relevant child's birth certificate at a later date, with the agreement of the mother.
CONTACT ORDERS
A Contact Order establishes, sometimes in clearly 'defined' terms, how often and under what circumstances a child shall have contact with the parent who no longer lives within the family unit. Courts accept the principle that a child is entitled to have a relationship with both natural parents. Research reinforces this principle. The HRA enhances the right of the parent who does not live in the family unit, to have contact with the relevant child. Contact is a separate issue from 'maintenance' payments, although they may be dealt with on the same occasion. A parent is not entitled to a Contact Order merely because s/he is paying maintenance; a parent who is not paying maintenance may not be denied a Contact Order merely because of that non-payment.
The process of seeking a Contact Order is initiated by making a formal Application to the court. [County Court Applications cost £80 each, so Applications, made simultaneously for, say, PR and Contact will cost £160.] A date will be set for you and your ex-partner to attend a Directions Hearing. This is an informal meeting which may be held in the County Court before a Judge or in the Magistrates' Court by a clerk or, occasionally, by three magistrates. The purpose of this meeting is to timetable future hearings and, if necessary, to appoint a Children and Family Reporter. [(CFR) This is the equivalent of the Court Welfare Officer. See 'CAFCASS' at end].
Courts vary; some may offer the opportunity to speak to a mediator or even a Children and Family Reporter before attending the Directions Hearing. It is in your interests to endeavour to reach agreement through this procedure if possible. If agreement is reached, but you still feel sure that the other party will not comply with the agreement, you may choose to continue with the court process in the hope of achieving a favourable Order. This will have the effect of making the agreement enforceable by law. In some cases, during the Directions Hearing, a Judge will, in effect, mediate, achieve agreement and immediately make a Contact Order.
CONTINUING DISPUTE BETWEEN PARTIES
Where agreement has not been reached, you may wish to seek legal advice if you have not already done so. You may be eligible for Legal Aid but the amount depends on your earnings. You are not obliged to be legally represented in court. Many parents represent themselves.
You will be told to provide the court with a written affidavit [or statement in Magistrates' Court], setting out your position. The court will usually ask the Children and Family Reporter to write a report which will be available to both parties and to the court prior to the next hearing. A court may make an Interim Contact Order, with closely defined conditions, in order that the CFR will be in a position to comment on, for instance, your relationship with the child. If you intend to ask an 'expert witness' to write a report and testify on your behalf, you should say so at the Directions Hearing so that a date for the submission of the expert's report can be scheduled. It is wise to have done preliminary enquiries to find out how long the expert will need to produce the report, how much the report and a court appearance would cost and any dates when the expert would not be available to attend court.
THE CHILDREN AND FAMILY REPORTER
Children and Family Reporters are regarded as 'the ears and eyes of the court'. They are independent of the parties. It is their function to interview both parents and, if possible, the child, to ascertain the child's view of the situation. If relevant, they may also speak to other family members, e.g. grandparents, aunts and uncles. Ideally, the CFR should have the opportunity to observe you with your child so that an assessment of the relationship can be made. Unfortunately, this sometimes has to be done under rather artificial circumstances, e.g. in the CFR's office or at a Contact Centre. It is vital that you are punctilious about keeping any appointments made. Always let the CFR know if, for any reason, you cannot keep an appointment. Co-operate to the best of your ability with any requirements laid down by the court or the CFR. You will see the CFR's report and, usually, where the issue of contact is disputed, the CFR will give oral evidence to the court. His/her report and evidence will refer to the Welfare Check List [WCL, see below] S/he may not be present at every hearing, however.
WELFARE CHECK LIST
In family cases, where there is a dispute between the parties, the Children Act 1989, requires the court to have regard to the WCL. This outlines the following principles which must be taken into account where relevant:
- the ascertainable wishes and feelings of the child, having regard to age and understanding
- the child's physical, emotional and educational needs
- the effect of any change in circumstances
- the child's age, gender and any other characteristics that the court thinks relevant
- any harm the child has suffered or is at risk of suffering
- how capable the parents [or any other relevant carer] are of meeting the child's needs
- the range of powers available to the court
In practice, where the issue is contact, some of the items on this list will not be deemed relevant. However, [1] The child's view, where ascertainable, is relevant. [2] The child's emotional need to continue a relationship with a loving parent will be regarded as crucial. [4] It will be regarded as important that the issue of the transsexual parent's gender re-assignment is dealt with in an age-appropriate manner. [5] The harm or risk of harm, largely as a result of society's response to gender dysphoria, will need to be addressed as it will, almost certainly, be raised by a hostile parent. The latter may even see gender dysphoria as representing a danger to children. [6] Is the primary carer capable of acknowledging the child's emotional need for contact with the transsexual parent?
YOUR STATEMENT or AFFIDAVIT
Focus on the benefit to the child of continuing to have a close relationship with you. Try not to indulge in criticisms of your ex-partner. Explain, in straightforward terms, those elements of your relationship with the child, which demonstrate your closeness. If you have been in sole charge of the child regularly, over a period of time, if you have shared activities with the child, these matters will help your application. Show that you are sensitive to the child's and to your ex-partner's need for time to adjust to your altered gender presentation. Show a willingness to comply with contact arrangements which you may, in fact, find irksome. If you are providing an expert opinion, you may refer to his/her report to allay any fears, expressed by your ex-partner, about the risk to children, posed by gender dysphoria. Sometimes, if unexpected evidence or allegations arise after you have made a statement, you may ask to have a further Directions Hearing at which you may be given permission to file a further statement, so long as this would not cause unnecessary delay. However, try not to have a written slanging match; it won't help your cause.
COURT HEARING [Interim]
The Court Usher will tell you where to wait and when the hearing of your case is likely to begin. Ushers know a good deal about the court process. If you have any queries, ask them. You will be asked for your name. Make clear to the usher how you wish to be addressed: Miss, Ms, Mrs, Mr.
Family Courts are less formal than criminal courts. Often the seating is all at one level; Judges do not always wear their wigs and gowns; Magistrates wear reasonably formal day clothes. It is advisable for all court users to dress discreetly. You should dress in accordance with your present gender status, but don't be flamboyant; office wear is appropriate. If you are legally represented, ask the advice of your solicitor.
If you and your ex-partner are both legally represented, it is common for your representatives to do some 'horse-trading' before coming into court. Again, if agreement can be reached, this is an advantage. The court may then follow the 'No Order' principle and decline to make an Order [an approach reinforced by Article 8, HRA]. If you and your ex-partner have reached agreement but only through mediation at court and you think the contact arrangements may break down despite that agreement, you can still indicate that you feel a Contact Order is necessary to ensure that your ex-partner complies with the agreed arrangements. Your representatives may write out these arrangements, which can be incorporated into a court Order. Under these circumstances you may not need to give evidence under oath.
The Judge or the Magistrates will have read the statements and the reports before coming into court. As the Applicant, if you are to give evidence, you will go first. You may be asked to take the oath in the witness box, but the court may then allow you to resume your seat, [unlike criminal court where witnesses remain standing in the witness box]. You will be asked to confirm the contents of your statement and to add any relevant update. The Respondent, your ex-partner [or his/her legal representative] will then have the opportunity to cross-examine you. If you are supported by evidence from an expert witness, s/he may now be called to give evidence on oath and be cross-examined by the respondent [or her/his representative]. Your ex-partner will then take the oath and go through the same process. If you are not represented, you will have to cross-examine him/her, yourself; you must remember to confine yourself to asking questions and not 'tell your story'. Later on in the hearing, you will be given the opportunity to explain the matters that are important to you.
If the CFR has already had the opportunity to assess the progress of any contact which has taken place, s/he may also give evidence and be cross-examined. You may challenge the view, but again, only by asking questions. The CFR's view is crucial and is usually accepted by the court. Almost always, the report will favour contact between parent and child. However, it may be frustrating to you to find that what is suggested by this officer and ordered by the Court is a continuing programme of defined contact, which initially allows contact only at a particular Contact Centre, at specified times and for limited duration [say, 2 hours]. Alternatively, contact may be organised in your own home, your ex-partner's home or at the home of, and in the presence of a named grandparent or other family member. Occasionally, this grandparent [family member] may also give evidence to the court. Children seldom appear at these hearings, but if they wish to be heard and are deemed old enough [possibly 12 upwards] the court may permit their attendance.
Sometimes, [where disputes between the parties continue to disrupt contact], a second Interim Contact Order may be made for a period of about two or three months, to give the opportunity for the parties and the CFR to see whether the contact arrangements can be made to work. Before the introduction of the HRA 'delay', unless it could be shown to be 'planned and purposeful', would have been regarded as against the child's interests. An interim Contact Order would, therefore, include specific directions as to the purpose of the delay, say for update reports from the CFR or further expert opinion. Since the introduction of the HRA, however, the court may balance the negative aspects of delay against the new concept of 'review' by the court of the progress of a particular case, before moving to a final Order
FINAL CONTACT ORDER
The final Contact Order will usually include an on-going regime of increasing contact between you and your children. It is always hoped that the initial position regarding contact will develop, through increased communication and co-operation between the parties themselves, to a more flexible regime of contact, progressing eventually to overnight staying contact and holiday periods of at least a week. Sometimes, the final Contact Order will encompass such details over a prolonged period, say, two years. Tiresome though this is, it may be in your favour to have all the details regarding dates, times, method of collection and delivery of the child, specified carefully in the Order then, if these commitments are not met by the Respondent, you may bring the matter back to court to show evidence of the breach of the Order. If a defined Order comes to an end and contact problems continue, you may always renew your Application to the court. However, in accordance with the HRA, courts will be encouraged to enforce their Orders and may, therefore, be more reluctant to make final Orders until they have had the chance to bring the matter back to court for further Interim Orders so that compliance may be monitored.
The court has the power to punish those who breach its Orders but does so with reluctance. The court may impose a small fine for each unwarranted failure of the Respondent to comply with the Order. Ultimately, the sanction of prison exists for persistent and unreasonable non-compliance. Since this would have a damaging impact on any child of the non-compliant parent, this is seldom regarded as a realistic solution.
JUSTICES' REASONS
Magistrates [Justices of the Peace] are required to write "reasons" for their decision. When a final order is to be made, this process of writing the "Justices' reasons" can take some time, but until "reasons" are completed, the announcement of the decision cannot take place. Copies of this document, including the details of the contact/residence arrangements, are provided to the parties, sometimes immediately afterwards, sometimes a few days later. Judges will also explain their reasons, but they are not required to give a detailed written account before making their judgement. Since it provides you with a record of the court's findings at the time, the "Justices' Reasons" document is an important one; read it carefully and keep it in a safe place. Older children may benefit from reading the document and understanding how and why the court has made certain decisions. Younger children may wish to read the document when they are older as it may also help them to understand and come to terms with the inevitable changes in their lives.
Such situations are fraught with difficulties for all families. The Applicant parent almost invariably has to show extreme patience and understanding at a time when s/he may feel that the respondent parent seems to show none. The Applicant needs to appreciate that children eventually make their own decisions and will often, of their own volition, seek out the absent parent to continue a disrupted relationship or build a new one. Transsexual parents' court experiences are not different from others in this respect but, of course, they do have many more obstacles to overcome owing to the likely inexperience of the courts in dealing with families where gender dysphoria is the central issue and, also, owing to the hostility of family members, especially where children's interests are at stake.
RESIDENCE ORDERS
A Residence Order establishes with whom a child shall live. If you have a Residence Order you will also have Parental Responsibility. Transsexual parents rarely seek Residence Orders. A natural mother, in theory, shouldn't need one; even after re-assignment of gender, the right to be the primary carer of the children remains intact. If a transsexual woman [who is a child's natural father] becomes the primary carer of the children, she may feel the need of the protection of a Residence Order, especially if she and her previous partner were not married and, therefore, she [the father] does not have Parental Responsibility. The court processes will be much the same as for a Contact Order. A CFR's report will be ordered to assess the parenting capacity of the carer, particularly if there is a dispute as to where and with whom the children should live.
THE HUMAN RIGHTS ACT [footnote]
On October 2nd 2000, the Human Rights Bill was enacted. This should enhance the rights of transsexual parents because, as indicated above, Article 8 states that everyone has the right to respect for his or her private and family life. It is not yet clear, exactly how that will be interpreted in the courts here. Article 8 is a "Qualified Right", not an "Absolute Right", therefore, it would be possible, for instance, for the legal representative of a hostile and uncomprehending mother, to use the argument that it was necessary "for the protection of health or morals" [of the child] to refuse contact with the natural father [transsexual woman]. This would not be right or just, but transsexual people will need to be aware that such arguments might be made, and be ready to counter them when they arise.
Basically, our law has to be interpreted, if at all possible, in such a way that it is compliant with European Human Rights legislation. If such an interpretation proves impossible, the government will have to change our law so that it is compliant with European legislation.
CHILDREN & FAMILY COURT ADVISORY & SUPPORT SERVICE [CAFCASS]
The roles of the Official Solicitors, Children's Guardians [old style Guardian ad litem = court reporter in Public Family Law cases], Parental Order Reporters [Human Fertilisation cases] and Children and Family Reporters [old style Court Welfare Officers] and all other Reporting and Welfare Officers have now been drawn together under the CAFCASS umbrella. Again, it is not yet clear what impact this will have on the practice of family law.
Proposals include:
- National provision and funding for mediation and child contact centres
- National standards of training
- National standards of report writing
- Legal representation for the child
PUBLIC FAMILY LAW
All the matters dealt with above come under the heading of 'Private' Family Law. Where there are serious child care issues which come to the attention of Social Services and cannot be resolved by co-operation between the family and the Social Services [Local Authority], 'Public' Family Law powers may be invoked. Supervision or Care Orders may be sought from the court, by the Local Authority. A Care Order confers Parental Responsibility on the Local Authority. In principle, this gives the Authority shared PR with the mother [and married father] but, in fact, it confers considerable power to determine the management of the children of a family.
Prepared by Terry Reed, on behalf of GIRES (Gender Identity Research and Education Society) [Registered Charity]
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