When should a child’s trans identity be permitted to be a material issue in a family case?

This is a post by Sarah Phillimore

On March 26th I was alerted to what I was told was a blog post by a lawyer for the charity Mermaids. The lawyer does not identify him or herself or claim any affiliation to Mermaids but the title of the blog is clearly identified as about ‘Trans Law’ and the author purports to be a qualified and registered solicitor. I will assume therefore that this analysis of the law may be read with interest by charities and other campaigning groups which assert that they protect the rights of trans children.

The blog is entitled When should a child’s trans identity be permitted to be a material issue in a family case?

I am concerned by what I read in this blog post. Not because I am a bigot who hates transpeople. But because I am a lawyer and I respect the rule of law. The law is no salve to hurt feelings. The law exists to constrain or promote behaviour that can be identified on evidence, to either the civil or criminal standard of proof depending on the nature and quality of the act.  The law is interpreted and applied by those qualified and trained so do to. It is not something that is within the power of any one individual to describe and enforce.

So what is my problem with this blog? It promises to be 1 of a 4 part series. The inherent and fundamental problem is set out in its very headline which manages with admirable economy to set out a broad and undefined term – what is a child – coupled with an a priori assumption about the existence of ‘trans identity’.

So there are two issues we need to unpick:

First – what is a child?

Second – how and when is the transgender identity of a child discovered?

What is a child?

A child is a human aged between 0-18 years. The difference between a toddler and a 16 year old is vast. That span of time encompasses the growth of a child from not much more than a blob to a thinking, reasoning, decision making human being. There can also be huge differences between even neuro typical 12 and 15 year olds. For these obvious reasons, the law operates on a ‘sliding scale’ when it comes to children and the weight that must be attached to their wishes and feelings.

As a rough rule of thumb a child under 6 is highly unlikely to be able to formulate a world view that differs significantly from the adults caring for him or her. However, most children over 16 years old will be able to make their own decisions and the courts recognise the futility of attempting to impose orders upon them at this age – note for example the provision in the Children Act 1989 that private law orders will only be made about 16 year olds in the most exceptional circumstances.

The difficult age range is likely to be between 12 – 15 years when many children will present as articulate and fluent and may have quite decided ideas about what is in their best interests but have still only lived on this earth for a brief span of time and still require the guidance, love and support of their adult carers.

Most neuro typical children in this age bracket are likely to be considered ‘Gillick competent’ and able to make decisions about their basic health and welfare which must be respected by their adult carers.  However, even a Gilick competent child may find the court willing to force them into treatment if there are sufficient concerns about their welfare, for example when refusing a heart transplant. Such matters are clearly highly fact specific and will be decided on a case by case basis.

On this very short and rough analysis hopefully it is immediately clear that to talk of ‘a child’, defined in law as any person under 18, without any attempt to reflect the ‘sliding scale’ of a child’s autonomy and capacity to make serious decisions, is simply ludicrous. The court would not treat a 6 year old in the same way as a 16 year old and no one could assert in good faith that they should.

So the author of the this document will need to revisit it and set out their understanding of the law with regard to a) very young children and b) children who are Gillick competent but not yet 16 .

 

How and when is transgender identify discovered?

This question is of course inextricably linked to the issues raised above about Gillick competence. If the mother of a 4 year old asserts the her son ‘disdains his penis’ and wishes to live as a girl, the court is going to subject this to rather more anxious inquiry than if the same child was a teenager.  This is exactly what happened in the case of Re J which I discuss at length in this post in December 2018: ‘In whose best interests? Transgender Children: Choices and Consequences’

And who was the charity which supported this mother in court, which condemned the Judge’s decision to remove the child from the care of his mother into his father’s care (where he lived happily as a little boy), and promised an appeal of the decision that never came? Mermaids of course.

I commented in December that it would have been good to have seen a little humility from Mermaids that they had backed the wrong horse in this case and supported a mother to do significant harm to her child by way of emotional abuse. If this blog post is indeed from a self identified lawyer for the Mermaids charity, this shows me that any such hope was naive indeed.

The author comments:

As a matter of legal principle and good practice (and to avoid frustration from the Bench), a child being trans should not come in to a case’s dialogue unless

it is materially relevant to an issue in question; or

it can be legally justified as a materially relevant issue in and of itself, i.e. the child’s trans identity is a contested ‘fact’.

I don’t take issue with that. I accept that there are a small minority of children who experience ‘gender dsyphoria’ and who seek and are entitled to help and support about that. I would however be astonished if any child under 6 – and the child in Re J was four years old – could ever fit into that category. For younger children, any self declaration about ‘disdaining’ their body is going to come from one of the parents and it cannot simply be accepted at face value, as Re J clearly shows.

The author rather skates over Re J and its implications (and certainly makes no mention of the role Mermaids played in encouraging a mother to cause harm to her child) and says

Further case law is needed to clarify the nuance between the scenarios of ‘forcing a child to be trans’ as emotional abuse in itself,

I don’t agree with this comment. It does not seem to me a matter of any uncertainty that ‘forcing’ a child of any age into ANY identity which they do not in reality choose, can be anything other than emotional abuse of a really serious kind. However, the author seems to go even further and seems keen to discourage the very analysis that he/she says is necessary. There is a clear wish to turn the spotlight away from any anxious inquiry into the truth of a child’s circumstances:

It would and will always be deeply problematic and symptomatic of the historic ‘gender policing’ (to which the trans population, both in the UK and across Europe, have been subject to) should the court be used to decide on whether someone, in this case a child, is ‘actually transgender’ or not. This is not the courts (nor anyone’s) – save for the individual themselves – right.

And this of course is a nonsensical assertion. It is entirely the job of the family court’s to concern themselves with a child’s welfare and make decisions for them when their parents cannot or will not. To afford a very young child ‘a right’ to determine something so significant is not protecting children’s welfare – it is rather risking them as proxies for the psychological dysfunction of their parents.

The author then appears to argue that such anxious inquiry must also be avoided in case it ‘triggers’ the child.

…the Issue must be dealt with incredibly delicately. Not doing so would be extremely dangerous as it would have an intrinsic risk of violating the subject child’s Article 8 and Article 14 rights, but it is also exposing a child to a triggering scenario that may subject them to psychological harm.

Again, this is – in my view at least – an assertion that is both dangerous and foolish. To assume that investigating a child’s situation will in and of itself harm the child is to assume a great deal about what is actually being investigated. I understand that it may well be embarrassing and painful for a 15 year old to have to justify the decisions they want to make about their own body and I do not think that the court should inflict this upon any Gillick competent teenager.

However, to suggest that we shy away from what emotional abuse a parent might be inflicting on a 4 year old, in case we risk ‘triggering’ that child is utter, unmitigated hogwash. This line of thinking puts children at risk of very significant harm indeed.

But the real beating heard of the argument is here.

….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.

As I hope I have made clear, any such assertion made without attempting even the barest of analysis of the vast gulf in understanding and capacity between a 6 year old and a 16 year old is an assertion of no value. Worse than that, it is an assertion which attempts to pave the way to leave young children entirely unprotected from their parents.

Most parents love their children and want to do what is in their best interests. A small minority of parents fail to do that. The courts absolutely must be ready, willing and able to step in and to protect such children.

Further reading

Interesting discussion in Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30 around concerns that parents:

  • have acted in a precipitate manner in relation to perceived gender dysphoria in children in their care (aged 13 and 6 years)
  • are resistant to acknowledging any potential disadvantages to R and H of being identified as transgender prematurely and the impact on their emotional, physical and sexual development. They are unable to provide appropriate and balanced support to R and H to make informed decisions as they get older.

However, largely as a result of the experts reports, including that of Dr Dr Pasterski, a consultant psychologist specialising in gender identity,  the local authority accepted that the threshold as it was originally drafted, could not be sustained and should not be pursued. The LA therefore asked for permission to withdraw its application for care orders, and the court allowed this.

The most interesting paragraph, in my view, is 75 where the court concluded:

In respect of paragraphs 29(a) and (b) of the vestigial possible threshold in respect of the concerns about the early and complete social transition of R and H, and the alleged unwillingness of CP and TP to recognise the long-term implications of such an early transition the evidence of Dr Pasterski compellingly rebuts these concerns. Her evidence in respect of the ‘2 critical historical misunderstandings‘ not only explains the approach of CP and TP but provides clinical justification for that approach. Notwithstanding even the Guardian’s caution in respect of the openness of CP and TP to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of CP and TP it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

H at the time of judgment was 6 years old and had been ‘supported’ to transition at an even earlier age. The elder sibling had also ‘transitioned’ before the age of 8 years. I am not confident that it is a safe finding to conclude that there was no risk to the psychological integrity of such young children for adults to be ‘supporting’ transition. It is difficult for me to understand how the court can so cleanly draw a distinction between ‘active encouragement’ and ‘appropriate support’ when such activity was occurring when H was only four years old:

In addition, H was sent to primary school dressed in a girls’ uniform (aged 4), when the school expressly asked that this not happen.

No doubt there will be other cases to come, so watch this space. I hope that Dr Pasterski’s evidence can stand the test of time, otherwise some very young children are going to find their life course altered in ways that may not be in their best interests as they grow.

EDIT thanks to Twitter, I have been alerted to another case via a mumsnet thread, which makes the Judge’s apparent uncritical acceptance of Dr Pasterski’s evidence here even more worrying.

The link to the reported case in that thread no longer works: it is here Jay v Secretary of State for Justice [2018] EWHC 2620 (Fam) (08 October 2018).  I note para 29 and the evidence of Dr Barrett which raises the issue that a wish to transition may arise from other elements of disatisfaction. Dr Pasterski however was able to opine without any reservations that Ms Jay had gender dysphoria:

“Separately, and recently, she reports gender identity problems. Her history, if taken at face value, is reasonably consistent with this diagnosis but the difficulty is that other aspects of that history are rather directly at odds with the documentary records leading me to have doubts about the veracity of her whole history – which would include a reasonably consistent history of gender identity problems. This aspect might be made clearer if a source other than [Ms Jay] could be interviewed …. If collateral collaboration is elicited I would reach an additional diagnosis of some sort of gender identity disorder. Whether the intensity of gender dysphoria caused by that disorder is great enough to merit or require a change of gender role might be explored in the setting of a gender identity clinic; it might be sufficiently intense in a prison but not so outside one and in civilian life, for example. If collateral corroboration is not convincingly elicited I would have grave doubts and wonder whether [Ms Jay]’s somewhat dependent personality had caused her to unwisely latch onto a change of gender role as a seemingly universal solution to both why her life had gone wrong and how it might be rectified.”

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