“This is a troubling case and the judge found it troubling,” she told the three Appeal judges, who included the president of the Family Court Sir James Munby.
In denying the father direct contact, the original judge, Ms Ball said, had “allowed himself to be held to ransom” by fear of the repercussions on the mother and children from within their community.
She said he had not been “sceptical enough” towards evidence that had been given to suggest the children would be shunned if they met their father.
It could not be right to prevent a child seeing their father, she said.
One question the Appeal Court may have to resolve is how far legal protection of religious freedom extends to a community ostracising people who do not conform to its practices. Or whether excluding children because they have a transgender parent amounts to discrimination which overrides religious rights.
Ms Ball observed there was “nothing in the Torah itself which in some way deals with the question of transgender”.
One Torah law which had been cited as relevant, against castration, did not apply in this case, she said.
A second law, against cross-dressing, she explained, had been intended to stop men dressing up as women in order to gain entry to women’s sections and was “nothing to do” with transgender.
The case has attracted considerable interest with one member of the public gallery arriving in court with a rainbow flag with a Magen David.
The judges were expected to reserve their decision.
