The boy who ‘lived in stealth’: Judge challenges emerging orthodoxy
Re-posted from 4thWaveNow:
The following guest post, by 4thWaveNow contributor Artemisia, is Part 1 in a series. In this piece, Artemisia investigates a recently reported case of a 7-year-old child in the UK who was removed from the custody of his mother. The court found that the child had been essentially groomed into a transgender identity by his mother. UK charity Mermaids was banned from contact with the mother and child. Part 2 in this series will take a deeper look at Mermaids and the overall state of affairs regarding “transgender children” in the United Kingdom.
On 21 October the Family Division of the High Court published a judgement delivered earlier that month by Mr. Justice Hayden. The case was widely reported in the press under headlines such as ‘Boy “living life entirely as a girl” removed from mother’s care by judge’ (Guardian).
At once the organisation Mermaids began to kick up a fuss on Twitter. Mermaids is a UK charity. Its objects are ‘to relieve the mental and emotional stress of all persons aged 19 years and under who are in any manner affected by gender identity issues, and their families, and to advance public education in the same’. Mermaids asserted that it had been involved with the family for three years, supporting the mother and child. The claim that Mermaids has had a close involvement with the case is corroborated by a passage in the judgement, extracted from a report prepared for the local authority, which states that the child’s mother was receiving ‘support from the charity Mermaids’.
Mermaids strongly disagrees with the decision to remove the child from his mother. In a series of remarkable public statements on Twitter and elsewhere, the charity and its supporters have stigmatized the judge’s decision to transfer the boy to the care of his father as ‘a huge injustice and transphobic practice’, claimed (wrongly) that ‘there is no evidence … to support [his] views’, described the judge as ‘uninformed and cold hearted’, accused him of ‘abuse’ towards the mother and child and demanded that the judgement be ‘overruled by a higher authority’.
This seems like very indiscreet behaviour for a charity, particularly a charity which has not denied that it was made the subject of a court order, banning it from contact with either mother or child; but discretion, it appears, is not the Mermaids way.
The case arrived in the High Court as a child protection case. However, it began as private legal proceedings brought in the county court by the child’s father.
The child at the centre of the case, called in the judgement ‘J’, is seven years old. His parents separated while he was still a baby. The father (‘F’ in the judgement) continued to have contact with the child until he was about three or four, when there was a breakdown in the access arrangements agreed between the parents. In 2013 the father applied to the county court for a child arrangement order. He was not seeking to remove his son from the care of his mother; he just wanted to be back in contact with him.
‘M’, the mother, opposed F’s application. Among other reasons she claimed that her son was ‘gender variant’ and that F was resistant to allowing him ‘to present as a girl’. The case was heard by Her Honour Judge Penna, a specialist in family proceedings.
In April 2014 Judge Penna considered a report from the Children and Family Court Advisory and Support Service (CAFCASS). It recorded that F had stated that he would not have an issue with J’s being ‘gender variant’, though he did request proof that this was actually the case. CAFCASS suggested that ‘this could be provided by the support group’: presumably this was a reference to Mermaids. Regardless, CAFCASS recommended that the court proceedings should be concluded and that there should be no resumption of contact between J and his father. The stated reason for this was that ‘the animosity between the parents was likely to lead to “potential emotional harm not only to [J] but to [M] too” ’.
Mother Must Never Be Upset. This is a precept that more than one of the agencies involved in this case seem to have taken as a guiding rule.
Judge Penna did not accept the conclusions presented by CAFCASS, stating: ‘I am unable to agree that this recommendation addresses J’s welfare needs which include a need to have a rounded sense of his identity as he grows older.’
Early in 2015 Judge Penna directed the local authority to conduct a section 37 investigation. This is an investigation to determine whether the local authority should apply to the court for a care order. Evidently the reports that Judge Penna had been receiving had led her to the view that J might be at risk.
The section 37 report, dated 20 March, records that during the course of the previous two years a number of concerns relating to M’s parenting of J had been raised by a range of agencies, including the local authority housing department, two different schools and the health centre. Some of the concerns raised, but not all, were related to M’s insistence that J was ‘gender variant’ or ‘transgender’.
The child’s first school, for example, reported that M was claiming that J was being bullied because of his ‘gender variance’. She was unable to provide any names of the bullies and the staff had not seen any bullying take place. M wanted to send her son to school ‘dressed as a girl’. The school, however, found ‘that in class, [J] [didn’t] display any differences to the other boys’. M did not wish to hear this, and ‘on occasions she reduced a teacher to tears’ by ‘her “forceful and confrontational” manner’.
There are other reports of M behaving aggressively when she is challenged.
Transgender activist Fox Fisher, a strong supporter of Mermaids, has posted an ‘’ addressing J as a ‘trans girl’. Fisher says,
‘After having spent time with you and your mum on number of occasions I cannot understand how anyone could not see you as the girl that you really are. … When I met you at the age of 5, you were using female pronouns and were living happily as the girl that you are.’
I am sure Fisher is perfectly sincere and has reported the situation as it appeared. But has Fisher ever met J without his mother? Or witnessed J’s mother in one of her well-documented rages?
The section 37 report did make some acknowledgement that M could be a difficult person to have dealings with and that ‘on occasion’ she had ‘challenged professionals’. However, this was blamed on the schools and other agencies, who, it was said, ‘did not have a full understanding of gender non conforming children’. This made M feel ‘stressed’. (Mother Must Never Be Upset.)
In spite of the large number of referrals, the report concluded that ‘the concerns have not been substantiated and did not meet threshold for further intervention’: in other words, the local authority would not be applying for a care order.
At several points the report mentioned that M was receiving support from a charity. In each case this was given as a reason why there was no need for further action to be taken by the children’s services department. In one place the charity is named as Mermaids. In other places the name of the charity has been redacted.
No doubt the children’s services department is under-resourced. Probably the social workers felt off-balance and out of their depth, faced with a putatively transgender five-year-old and his articulate and sometimes very daunting mother. Still, with the best will in the world, the CEO and volunteers of Mermaids do not have the training that a social worker receives, nor could they have the overview of the case gained from multi-agency referrals. On the other side, handing J and his mother off to Mermaids meant that the department was committed to accepting without proper investigation the claim that J ‘feel[s] like a girl and want[s] to be a girl’, to use his mother’s words. Moreover, the department bestowed its authority on the ideology of transgenderism which Mermaids embraces and propagates, and in particular the highly questionable construct of the ‘transgender child’. And it led to the rather convenient assumption that whenever concerns were raised about J’s welfare, this was merely a sign that the agency involved was deficient in its ‘understanding of gender non conforming children’.
By October 2015 the court and the local authority had lost track of J. His home address was not known, he was not attending school, and M was not co-operating with the court-appointed guardian over her efforts to get in touch. In this situation, concerned for the child’s welfare, Judge Penna took the decision to transfer the case to the Family Division of the High Court, which has statutory powers that the county courts do not possess. At this point the case ceased to be a matter of private legal proceedings and became a child protection case, a matter of public law.
The case came before Mr Justice Hayden, the judge against whom Mermaids has directed so much bile. Anthony Hayden QC was made a High Court judge in 2013. Before then he was a senior barrister, acknowledged as an expert in family and children’s law. He was one of five specialists who contributed to a massive, ground-breaking legal handbook on Children and Same Sex Families (2012). Judge Penna was another of the contributors. The book includes a detailed section on ‘Gender Recognition’.
Mr Justice Hayden wrote in the foreword: ‘A society that respects diversity, values equality and promotes fairness is a healthier one for children to grow up in and a better one for us all.’
The judges who have dealt with J’s case are among the top authorities in the country on family and children’s law as it relates to transgender people. When Mermaids and its supporters call Mr Justice Hayden ‘transphobic’ and ‘uninformed’, they show up their own ignorance and prejudice.
At the first hearing before Mr Justice Hayden, in November last year, he made what he describes as ‘a variety of highly prescriptive orders, reinforced by a Penal Notice’ (that is, a warning that any breach of the order will be a contempt of court). He discreetly declines to say what was in these orders or to whom they were directed. However, Fox Fisher, a Mermaids volunteer with inside knowledge of the case who does not, it seems, appreciate that there are some things it is better to keep quiet about, has acknowledged being subject to a gagging order. Fisher has also stated that there has been ‘a ban on Mermaids being involved with either [J or M] for many months’. Presumably, after studying the reports, Mr Justice Hayden concluded that the continued involvement of Mermaids would not be helpful.
During that hearing M told the judge that her son was living ‘in stealth’, that is, entirely as a girl. She claimed that in bringing him up as a girl she was following advice that she had received from the Tavistock Centre (which runs a gender identity clinic for children). When the court asked to see the records that the Tavistock held on her child, she tried to bar their production; when, eventually, these were obtained, they did not bear out her claim.
The next hearing was in February this year. Mr Justice Hayden makes some telling observations about M’s behaviour in court:
What struck me forcibly … was that M spoke of J only in the somewhat opaque and convoluted argot of social work and psychology. She offered an impressive, intense and highly articulate evaluation of the problems faced by children with gender dysphoria but she conveyed no sense of J’s personality, temperament or enthusiasms, notwithstanding frequently being encouraged to do so. Repeatedly she struck me as a professional witness giving evidence about somebody else’s child.
This is reminiscent of some of the signs of Munchausen syndrome by proxy (also known as factitious disorder by proxy). An attention-seeking mother gratifies her needs by faking in her child an unusual condition or disease. Typically she is well-informed about medical care and is able to discuss the child’s symptoms in considerable detail.
I am critical of the modern tendency to class every problematic behaviour pattern as a mental disorder. But the fact that this kind of pattern in a mother-child relationship is recognised and documented is a useful notice that it is by no means unheard-of for mothers to treat their children as screens on which they project whatever gratifies their needs. And I think we need to be reminded of this sometimes. The meme of the ever-loving mother is very powerful and there are strong cultural taboos on saying anything that may tend to undermine it.
After the hearing in February, the judge concluded that J ‘was at risk of significant emotional harm’. He agreed with J’s court-appointed guardian that he should be removed from M’s care. A very experienced clinical psychologist had made assessments of M and F. On the basis of her reports and his own assessment of F as a witness, the judge made an order transferring J to the care of his father.
Mr Justice Hayden has set his views out plainly:
My experience in the Family Division leaves me with little doubt that some children, as young as 4, 5, 6 years of age may identify strongly with their opposite gender. Such children can experience rejection and abuse arising from ignorance both on a personal and institutional level. … It is important that such children are listened to and their views afforded respect but, to my mind, they are ill served by premature labelling. What they require … is the opportunity to develop their identity in which ever way it evolves. J was not only deprived of that space and opportunity by his mother, he was pressed into a gender identification that had far more to do with his mother’s needs and little, if anything, to do with his own.
J’s father has undertaken to give him that space; his mother remains convinced that he is ‘a girl whose true gender identity is being repressed by F and the professionals’.
What Mr Justice Hayden says in the passage I have quoted above is simply the epitome of good sense. To the ideologues of the transgender movement, however, it is heresy. The claim that a child’s ‘gender identity’ is immutably fixed, and identified by the child at four, or three, or even two, is often made by trangenderists and their allies and facilitators. It serves an obvious political purpose, bolstering the ‘born this way’ narrative. However, I have never seen any research evidence that supports it.
Is Mr Justice Hayden aware that he is going against a cherished tenet of transgender ideology? I think he probably is – he’s clearly well-informed – and doesn’t care one bit. No good purpose is served by pandering to the promoters of unsupported and unlikely notions. There is little point, even, in undertaking a debate with them, since their arguments typically disintegrate as soon as they are closely examined. There is a great deal to be said for simply stating reason plainly, and leaving it to the other side to find rational grounds to criticise – if they can.
The judgement is highly critical of the local authority for its persistent failure to intervene in a case where, as Mr Justice Hayden says, ‘there were strong grounds for believing that a child was at risk of serious emotional harm’. He continues: ‘I propose to invite the Director of Children’s Services to undertake a thorough review of the social work response to this case. Professional deficiencies to this extent cannot go unchecked…’ He raises as a special cause for concern the way the local authority ‘moved into wholesale acceptance that J should be regarded as a girl’, disregarding the fact that, as he states, ‘There was no independent or supportive evidence that J identified as a girl at all, indeed there was a body of material that suggested the contrary.’
He is certainly aware, at least to an extent, of the social and political pressures that have been placed on professionals as a result of the directions taken by transgender activism. He suspects (no doubt correctly) that this is part of the reason why the social workers involved with this case failed to conduct a proper assessment. He makes it plain that he does not find that acceptable. He refers to ‘an emerging orthodoxy’ with, I think, a clear implication that it hasn’t been adequately scrutinised:
Transgender equality has received a great deal of attention in recent times. I believe that in this case the profile and sensitivity of the matters raised by the mother blinded a number of professionals from applying their training, skills and, it has to be said, common sense. They failed properly to investigate M’s assertions, in part I suspect, because they did not wish to appear to be challenging an emerging orthodoxy in such a high profile issue.