Children under 16 are very different to children over 16, both in legal terms and cognitive capacity. What happens when arguments are made for ‘children’s rights’ that does not make this explicitly clear?
Dear Ms Hirst
I attended your presentation at the webinar on November 11th ‘An Uncharitable Alliance? Mermaids v Charity Commission and the LGB Alliance’ where you spoke about children’s rights in the context of medical transition and your concerns about how the activities of the LGB Alliance and others might limit those ‘rights’. I note that prior to joining the University of Sheffield you taught Medical Law, Children’s Rights and Public Law at the University of Liverpool as a Graduate Teaching Fellow, so you clearly have knowledge and expertise in this area.
This increases my concern over some of your assertions made at your presentation, which I set out below.
As I think this is a matter of significant public interest, I am posting this on my substack and on the Child Protection Resource website. I would be very happy to publish a guest post from you in reply to all or any of this.
I set out some of my specific concerns below, as I tweeted my thoughts during your presentation. While I would be grateful for any further information you can give about these specific concerns (most notably, the treatment offered, the ages, sex and outcomes for the ‘children’ who presented for ‘gender affirming’ treatment in the 1930s) my over-arching concern is that you apply a ‘rights based’ narrative of child welfare on ‘children’ as a whole, without any distinction between those who do or do not have capacity.
You point out the dangers of treating children as a ‘homogenous group’ – which I agree is often antithetic to the paramountcy principle of the Children Act 1989 which requires an intense focus on the welfare of the individual child who is the subject of legal action. However, you fall into exactly that trap, by failing to make explicit any distinction between children over and under 16 years of age. This is a particularly important distinction because a 16th birthday imports a statutory presumption of consent in many areas. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2)  UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”
Referring simply to ‘children’ as you did throughout your presentation therefore in my view presents a significant risk to those younger children who in my view are highly unlikely to be able to offer consent to even social transition, let alone medical or surgical transition. They must not become ‘lumped in’ with children of 16. Applying a ‘rights based’ analysis to the welfare of children under 16, is in my view not merely inapt but can be actively harmful to the welfare of these children, when the adult making decisions on their behalf is working on prior ideological assumptions.
The law clearly recognises and applies the importance of the child’s maturation in any decision making process. The House of Lords in Gillick approved the following dictum of Lord Denning MR
… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.
If a person cannot understand the nature or consequences of a particular ‘right’ then the decision to enforce that person’s access to it is inevitably made by another. Despite the commendable efforts made by the Mental Capacity Act 2005 to underscore the importance of the ‘best interests’ analysis for those lacking capacity, it remains an inevitable truth that those who lack capacity will have decisions made about them and for them. It is essential that the adults who do this, approach the ‘best interests’ test with an open mind and free from prior assumption.
For children under 16 what you are in fact advocating for is that an adult’s agenda must prevail where those children – I argue the overwhelming majority – are not Gillick competent. It was clear what this agenda is from your presentation and those of your colleagues that I heard. ‘Transition’ is presented as a ‘right’ of a child, attempts to argue for caution in the light of the lack of any compelling evidence for its efficacy, are dismissed as ‘transphobia’ or attempting to ‘erase’ trans people.
I was not aware of any attempt in your presentation to engage with the Cass Review or how this has translated into the NHS England draft specifications regarding treatment for gender dysphoria. You made a brief mention of the Review and then spoke about how transition was not merely a medical issue but a social and emotional one also. I am sure you are right about that. But it does not mean that clinicians ought to be encouraged to provide treatment for a child which is irreversible, significant and has no evidence base. To do this is not merely wholly at odds with the welfare of the child, but requires clinicians to abandon the ethical foundations of their practice.
This blurring or simply ignoring the crucial differences between children’s capacity to consent as they age and mature is sadly a common feature of discussion in this area from those who advocate medical transition as a moral and social good. I note for example the claim from Mermaids that if a child says they are trans, at ANY age, they are trans. The recognition that children ‘age into’ capacity is not some capricious, arbitrary or ‘transphobic’ whim – it is supported by decades of research into child development and noting how children’s ability to understand, retain and weigh up information is compromised by the development of their brain. The solution to this cannot be – as you suggest – to simply offer them ‘more information’ and was explicitly rejected by the Divisional Court in Bell v Tavistock.
This is a matter of particular concern for me as I note a ‘industry’ growing up of those who have not merely staked their professional reputations on the ‘trans child’ but also their income streams.
I would welcome any comment you feel able to give about any of the points I raise.
Comments via live tweeting of the presentation
Says there is evidence of children seeking gender affirming care from the 1930s ??? <I would like to see this>. Thinks true numbers of children seeking care now could be much higher as difficulties accessing care.
Recognises concerns about GIDS – inadequate rating and Cass Review. No acknowledgment of ‘gender diverse’ GD children’s rights. Under 18 not included in GRA. Gaps in EA and UNHRC.
accuses courts of not engaging with GD children’s rights and AGAIN refers to ‘rhetoric’. Access to medical transition has become a ‘power dynamic’ re access, compares to abortion and contraception (???)
Says Mermaids action has impact on child’s right to identity. Children are not one homogenous group and don’t have a identity separate from being a child. We don’t describe them as ‘agender’ or ‘nonbinary’
This might be linked to adult ‘discomfort’ about children having an ‘identity’ (OR we reject any assertion that a child can have an ‘agender’ identity as it is made up?)
Says the medical treatment of children has ‘moral and social’ benefits. (and isn’t this the problem? Clinical decisions and evidence overshadowed by adult preoccupations about what is morally good)
Says implications for child’s rights to information. They have rights to ‘all kinds’ of information (that’s certainly an interesting way of putting it).
Says ‘puberty is not reversible’ so treatment needed to prevent adults from surgical intervention. Children will pay hormones from unregulated websites (focus then should be on criminalising those providers, not making them an excuse to prescribe cross sex hormones).
‘we don’t have long term data because its so difficult to get children to engage’ WELL EXACTLY. they are children. They don’t have the capacity to engage in discussion or thought about this.
Now citing Sally Hines who says there is a lack of information for GD children (I think this can only mean a ‘lack of information promoting gender identity treatment). how can it be made accessible for children. (how indeed)
Child’s right to be heard in all matters affecting them (yes but their wishes and feelings can rarely be determinative, particularly when under 16). We need to engage with them.
LGBA have not involved GD children in their activities. Has due weight been attached to their views? (NO! because they are CHILDREN) Heavy reliance on Micheal Biggs but they should listen to Sally Hines.
Is this part of wider problem in hearing GD children who were also excluded by Gov in conversion therapy debate. An adult agenda put on children. No child witnesses in Bell (this is not true. statements from children. Which horrified the court)
Thinks LGBA will end up erasing minority groups, saying they ‘don’t exist’ and ‘shouldn’t be heard’ (this is NOT what anyone is saying. We are asking to listen to evidence). ‘Rolling back Gilick competence’ – (what is this? 16 years old have statutory competence.)
What impact does this have on GD adults and their experiences?