Author Archives: Sarah Phillimore

Parental Alienation: The Modern Way

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My near 30 years in practice have shown me that without a doubt, there are parents of both sexes who do or say things that have a negative impact on their children and which turn them away from a parent they either previously loved or at least tolerated. Sometimes that behaviour is calculated and malicious, sometimes it is a reflection of a huge amount of emotional pain and a genuine, if unreasonable, narrative that the child must be ‘protected’ from the other parent. Both men and women do this but it does seem from my experience at least, the most typical dynamic is a child in the primary care of a mother who makes allegations of abusive behaviour against a father who in turn asserts his child is being influenced against him.

The shorthand term for this kind of dynamic was ‘parental alienation’, now ‘alienating behaviour’ and regardless of what term you use, it continues to provoke increasingly polarised reactions from a male/female divide. Some fathers argue that ‘parental alienation’ is routinely practised by mothers and courts either deliberately fail to get to grips with it or are wholly ineffectual, leading to ‘good dads’ being frozen out. Some mothers assert that it’s a fictional concept, weaponised by abusive men to hide their harmful behaviours and make everything the mother’s fault.

We have moved on from the efforts to establish it as a ‘syndrome’ which has never been a helpful lens through which to examine bad behaviour. The issue is not whether a parent is suffering from some diagnosable psychiatric condition but the facts of what they have done and why, and what is the impact on the children. Of course, if a parent has been abusive then a child has a very good reason not to want to spend time with them. When abuse is established or admitted, it is unlikely to be a case of ‘parental alienation’ and its unlikely to be in the child’s best interests to strive to establish direct contact.

But the cases that cause the most trouble are when the allegations of abuse are not accepted and not proved. The ‘domestic abuse’ complex has grown significantly from my beginnings as a baby barrister in 1998, still 2 years away from the seminal judgment in re L 2000.

The family courts did need to take action to understand domestic abuse and deal with it better. But as the Court of Appeal confirmed in Re H-N (Children) (Domestic Abuse: Findings of Fact Hearings) [2021] EWCA Civ 448 it is not now correct to say that Judges have no or little understanding of abuse and its consequences. The Court of Appeal confirmed that Practice Direction 12J is fit for purpose.

But there are many groups determined to push an opposite narrative – their livelihoods and expensive training programmes depend on it – and the concept of ‘parental alienation’ has thus become more and more of a football to be kicked around opposing camps.

The danger of this is obvious. Those with hammers see nails everywhere they turn. Each camp has developed its own narratives and ‘expertise’ has grown up in each camp which has risked becoming less an objective investigation into the facts of alienating behaviour and more about adherence to a pet theory. The court has to be always alert that it is not getting drawn into any narrative or theory, over and above the proof of necessary facts.

How should we approach cases of ‘parental alienation’?

A good example of where it went wrong, and details of the ‘modern approach’ to parental alienation, can be found in the recent case of Y (Experts and Alienating Behaviour: The Modern Approach), Re [2026] EWFC 38.

Background

This case involved separated parents; the father wanted the children to live with him. Both parents alleged abuse from the other. The court heard evidence from a psychologist in 2019 and on that account alone made findings that the mother had alienated the children. The children, a daughter aged 12 and a son aged 9 were removed to their father’s care and had no contact at all with their mother for the next 6 years.

The son when aged 15 travelled to his mother’s home but was removed into foster care. The mother attempted to challenge the court decision in 2025 under Part 18 of the Family Procedure Rules.

The expert psychologist was not registered with the Health and Care Professions Council and had no clinical or therapeutic practice. There was no trace of any formal application to instruct her.

The original judge concluded that the matter had been set down for a combined finding of fact and welfare hearing and therefore he would consider the expert evidence first. The psychologist applied ‘Attachment Science’ and found ‘significant psychopathology’ in the mother’s profile which impacted the way she organised her relationships with others. She had ‘directly influenced’ the children to hate their father and if they continued to live with her they would be at ‘significant psychological risk’. It did not matter if the mother’s allegations against the father were found or not as the problem was the mother’s ‘hatred’.

She recommended the children were removed from the mother’s care. This lead the children’s guardian to recommend that the children’s wishes and feelings could not be given much weight, due the negative influence of the mother.

After the psychologists evidence, the Judge asked for submissions about whether other evidence was necessary. The mother’s barrister argued that there should have been a finding of fact before expert evidence was heard. The mother’s case was that she had experienced domestic abuse from the father and this puts her feelings towards him into a necessary context. The President commented that the barrister had been ‘entirely correct’ and her submissions fully in line with the guidance now given by the Family Justice Council. But the father and guardian’s barrister argued for no further evidence and the judge agreed.

He accepted the psychologist’s evidence and that a finding of fact hearing would not change her recommendations. He wanted to move straight on to a welfare hearing. The mother’s barrister sought permission to appeal; this was refused. At the final hearing the mother was criticised for not engaging in the therapy recommended and although the children wanted to see her, they could not until she had undertaken therapy. The Judge set out that the court accepting the psychologists conclusions and her findings stand as the court’s findings.

The mother tried again to challenge in 2021 and failed. She tried again in April 2025 and her application wended its way slowly to the High Court until finally in January 2026 the court ordered her son could return to her care. The mother also requested the original findings were set aside, relying on the approach to parental alienation now set out in Re C (Parental Alienation; Instruction of Expert) [2023] EWCH 345 and the December 2024 guidance of the FJC. The case and the guidance made it clear that unregulated experts should not be instructed in such cases and expert evidence should only be directed AFTER findings of fact.

The court considered the law on when a finding of fact should be reopened in family proceedings; this requires ‘solid grounds’ and the court must balance the public interest in finality of proceedings against the importance of establishing the truth and the significance of the findings. There must be genuine new information. The mother did not seek any relitigating of the parties allegations against each other as it would now be pointless; she wanted them set aside. She had never accepted she needed therapy. The father did not want to participate in the court proceedings but asserted that the psychologist’s views had been shared by CAFCASS and LA social workers. The child supported his mother’s application for the previous findings to be set aside.

The President found that the approach adopted in this case had been ‘fundamentally flawed’ and must be set aside (para 83). This case was not about the particular psychologist but the ‘failure of the whole process; which was unsound. He determined that ‘every agency’ involved in these proceedings had failed – CAFCASS, the children’s solicitor, the local authority and the court.

The modern approach

The court sets out the ‘modern approach’ from para 40. The starting point is the Family Justice Council Guidance issued in December 2024, on how to respond to a child’s ‘unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour’. The court must determine any relevant allegation of domestic abuse before deciding if a parent has exhibited ‘alienating behaviour’. Alienating behaviours will not be found in cases where findings of domestic abuse are made which have resulted in a child’s ‘appropriate justified rejection’.

The key point is that the factual matrix around allegations of alienating behaviour is a matter for the court alone; it is not a matter for expert psychological evidence (para 45). A summary of the approach is set out at para 75.

Experts may be necessary to inform the welfare outcome once facts are found, but need to be scrutinised with regard to their regulation, qualifications and access to psychological tests. The guidance from the British Psychological Society (BSP) is that only HCPC registered psychologists have the relevant clinical experience and training to conduct psychological assessments. One problem is that the loose but formal sounding title ‘psychologist’ is not a ‘protected’ title for the purposes of regulation with the HCPC. This covers ‘clinical psychologist’, ‘educational psychologist’ etc. Thus this area is ripe for confusion about who is claiming what.

The President had warned in the earlier case of Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 that court must keep its eyes ‘wide open’ with regard to clarity over claimed expertise in this field but the court would not prohibit the instruction of an unregulated psychologist. It would however require caution.

From para 57 the President referred to other cases where the psychologist had offered expert opinion. In 2023 the court was critical of her approach, which was based primarily on her assessment process of ‘attachment based interviews’ rather than a holistic overview of all the circumstances. In 2025 there was a further case where a judge purported to make findings of fact based on the psychologists own ‘findings’ which was an ‘uncertain’ and ‘mistaken’ foundation. The judge should have embarked on a factual investigation of the mother’s specific behaviours.

Commentary

It is clear that things went badly wrong in those cases where a judge allowed an unregulated expert to find the facts of the case; this is a matter for the judge and judge alone. The problem is compounded when the expert operates through a narrow lens of a particular position, such as ‘attachment science’, which necessarily prevents a holistic over view of the evidence.

I note with interest the developing thinking in the family courts about the need for regulation. In 2019 I published an open letter on this site, signed by 77 parents, psychologists and lawyers, which urged the President to agree to a change in the rules to prohibit unregulated experts providing reports. We were ignored.

We said

We feel strongly that the requirement to consider such regulation on a ‘case by case basis’ is potentially unfair to parents who may be acting in person and who may not initially appreciate the potential significance of a failure by any professional to submit to external regulation.

We are very concerned that parents who wish to raise significant concerns about the conduct of an expert who is not subject to external regulation, have no where to go other than the appeal process, which is clearly not a suitable mechanism to deal with the majority of complaints against an expert’s conduct.

However, by the middle of 2025 the Family Procedure Rule Committee consulted on proposed changes to the rules to restrict appointment only those those who are regulated. The outcome of the consultation is not yet known but it is now clear that the courts are ‘strongly encouraged’ to favour the instruction of regulated experts. The President gave guidance from para 73 to say that a ‘psychologist’ should not be instructed unless registered by a relevant statutory body nor chartered by the BPS. This requirement should only be departed from when there are clear reasons for doing.

I agree it is not the ‘fault’ of an individual who has a hammer and is looking for a nail, to be let loose in family proceedings. I doubt that these individuals are deliberately malign or dishonest. But the risk is that they operate in a myopic and hence dangerous way. If they are not regulated, there is no external check or balance. They may claim a formal sounding title that lures a Judge into deferring to an ‘expertise’ that may not stand up to examination. Courts must remember that foundational principle that finding facts is the job of the judge, no one else.

But I do wonder what would have happened if my open letter had been taken seriously in 2019. Perhaps it would have helped in this case and the others cited, to prevent them going so firmly off the rails and the impacts of those court decisions reverberating through many years. My only reassurance in this is that my instincts are sound. Any person who ought to be subject to external regulation but refuses, is someone to treat with extreme caution, and certainly not someone who should ever be paid to provide reports to the Family Court.

The death of adoption

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The rise and fall of adoption

In 1968 there were 25,000 adoptions, reflecting a society where illegitimacy was still stigmatised and there were many babies available with mothers who offered reluctant consent, having no other way of providing for their children. The rates plummeted due to increased access to contraception, legalised abortion and a sea change in society’s attituded to having children outside marriage. However, the number of children ‘looked after’ by local authorities continued to rise.

In 2000 the government introduced a national target to increase the number of ‘looked after’ children adopted, given concern over the number of children who remained in care for long periods of time without a permanent home. This led to the Adoption and Children Act 2002 but by 2006 the national targets had ceased.

The year ending March 2015 saw 5,360 adoptions in England out of about 70K looked after children. This figure had risen sharply from about 3K in 2011, driven by those government policy pushes for permanence via adoption.

By 2025 only 3,040 children were adopted in the year ending March 31st – a slight increase of 20 children from the year before. So we are back to 2011 levels but now with about 80K looked after children.

But even with a drop back to about 3K per year, the UK remains a very obvious outlier when compared to European countries. Germany has a similar number but about half are stepchild adoptions, not adoption from care. The UK does appear to still have a unique emphasis on adoption as the most favoured permanence option; other European countries favouring kinship care or long term fostering.

So adoption appears to be on the decline in the UK. I wonder if a forthcoming decision in the UK Supreme Court may herald its end.

This site was started in 2014 in an attempt to counter the narratives around ‘forced adoption’ – that social workers were paid a bonus of £30K to target babies etc. This post about ‘forced adoption’ was one of the first I wrote, and despite starting with a quote from Lord Wilson in 2014 I am not now confident, looking back, that I fully appreciated the impact of his words

I am a passionate believer in the value of adoption in appropriate circumstances… But I fear that, in making all those orders, I never gave much attention to the emotional repercussions of them. In particular I fear that I failed fully to appreciate that an adoption order is not just a necessary arrangement for the upbringing of some children… the order is an act of surgery which cuts deep into the hearts and minds of at least four people and will effect them, to a greater or lesser extent, every day of their lives…

There are a variety of factors at play. One may be the influence of the ‘nothing else will do’ line of court authorities from 2013 which emphasised that adoption was to be seen as a last resort. Local authority decisions to pursue adoption were reported to fall by 46% by 2014 and the number of placement orders halved.

But the more important factors I suspect are these, which all make up an attack on the continued legal fiction that adoption rubs out the birth family and creates a new one.

  • the increase in post adoptive direct contact, now provided for by law but also made far more obtainable for children via the internet and social media
  • the lack of support for adopted children and parents, particularly given the likelihood that adopted children, even those who are very young, will have suffered significant trauma and loss before being placed for adoption.

The Adoption Barometer 2025 sets out some concerning statistics. It gathered responses from 3,591 including 380 adoptees aged over 16. Those families who had adopted children before 2023, 42% described their family as ‘facing severe challenges or at crisis point’. 72% of those who accessed CAMHS support did not agree it made a positive difference. This experience is echoed by support groups for parents such as Parents of Traumatised Adopted Teens Organisation.

The BBC File on Four released ‘Adoption the Blame Game’ in December 2025. The journalists made freedom of information requests of every local authority. Not all responded but those that did revealed 1,000 adopted children in the UK had been returned to care over 5 years. The true figure is likely to be much higher as only one third of local authorities collect this data.

It is also interesting to note that adoption appears to have collapsed in Australia, and I wonder if this is for similar reasons. From adoption data collected by the Australian Institute of Health and Welfare, there were just 207 adoptions in 2023-24, down from 9,798 in 1971-72, a 98% decline and against Australia’s population more than doubling since 1972. Adoptions now represent less than half of one percent of the number of Australian children in out-of-home care.

International adoptions in American have fallen from 22, 991 in 2004 to just 1,275 in 2023. I assume this reflects a decrease in the number of available babies as birth rates fall and many countries prohibit international adoption, plus of course the booming surrogacy industry. People want babies not traumatised toddlers.

Revoking adoption orders – now before the Supreme Court

It is possible for the court to revoke an adoption order – i.e. discharge/end that order –  using its ‘inherent jurisdiction’ but this is an exceptional and rare step for the court to take because an adoption order is supposed to be an ‘order for life’.  

The case law so far suggests there are only two categories of case where you might be successful

  • procedural irregularities that have led to a breach of natural justice
  • a mistake in finding that the threshold criteria had been reached in care proceedings

The case of PK v Mr and Mrs K [2015] EWCH 2316 considered the law about revoking adoption orders, and is a rare example of where the court agreed to do it given the wholly exceptional nature of the case. A four year old child was adopted but only two years later she was sent to live in Ghana with extended family members where she alleged suffering serious abuse. She was later reunited with her biological mother. The adoptive parents initially attended court but then disengaged completely.

An adoption order was revoked in the case of Re J (Adoption: Appeal) [2018] EWFC 8 but again, the circumstances of this were unusual; the child had been adopted by his stepfather and his mother had lied about the father’s whereabouts. When the father found out he applied for the adoption order to be revoked and the court agreed – but it made no difference to the child’s day to day life as he remained living with his mother.

In AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam) the court did agree to set aside an adoption order after the placement broke down as its continuance was upsetting for everyone.

But the court declined to follow this decision in in X and another [2024] EWHC 1059 (Fam) and held it was not possible to revoke an adoption order due to a change in circumstances after the order was made – here the two adopted children had returned to their birth mother and did not want the adoption order to remain.

The court found that although it was established that the inherent jurisdiction of the High Court included a power to revoke an adoption order made under the Adoption and Children Act 2002 in a case where there had been a fundamental procedural irregularity, the inherent jurisdiction did not include a power to revoke such an order on welfare grounds since such a power would cut across or be incompatible with the scheme of the 2002 Act , which in section 55 expressly dealt with revocation of adoption orders, but only in a very limited category of case, that of legitimation.

The power in section 31F(6) of the Matrimonial and Family Proceedings Act 1984 to rescind an order of the family court was never intended to apply to the revocation of adoption orders under the 2002 Act , since such a broad and unfettered power would be obviously contrary to the public policy considerations in respect of the finality of adoption orders; and that, accordingly, there was no power to revoke an adoption order made under the 2002 Act on the grounds of the child’s welfare (post, paras 73–93).

This decision was affirmed by the Court of Appeal in January 2025 who said the remedy would be to apply for leave to appeal out of time, when the welfare of the child could be considered RE X and Y (CHILDREN: ADOPTION ORDER: SETTING ASIDE)

The Court of Appeal held

Adoption orders are transformative, have a peculiar finality and are intended to be irreversible, lasting throughout life, as if the child had been born to the adopter. That high degree of permanence, from which the benefits to the child of long-term security and stability should flow, is the unique feature that marks adoption out from all other orders made for children; it is, at its core, what adoption is all about. We agree with the SoS that it would gravely damage the lifelong commitment of adopters to their adoptive children if there were a possibility of the finality of the adoption order being challenged on welfare grounds.” 

The Court of Appeal also commented that in cases that do not involve adoption, there is no legal mechanism by which natural parents or children can extinguish the parental bond between them, however much they may wish to do so.

But it has now gone to the Supreme Court – X and Y (Children: Adoption Order: Setting Aside) UKSC/2025/0039 – who considered these arguments on 4 February 2026.

I will very interested to know the outcome. I am not confident that in 2026 assertions about shoring up the legal fiction of adoption can continue to have weight. Adoptions do not seem to be faltering because families are worried about a challenge to the adoption order, but rather that they cannot cope with traumatised children without significant support, which is not often available. I am not confident that the continued ‘public policy’ justifications for a legal fiction could or should survive the very clearly stated wishes and feelings of children who do not wish to be adopted.

As I commented in discussions about this case on LinkedIn, a system that expects to shore up a legal fiction on traumatised children, without providing considerable and consistent support, is one that cannot survive.

I think adoption is finished. It could only survive as a model that denied the existence of the birth family. Once it was accepted that this was unhealthy and unworkable, and direct contact post adoption was promoted, the notion of adoption as creating an unshakeable legal fiction is unsustainable.

I think adoption has faltered as it was offered as a ‘solution’ to infertility. But the children available for adoption are unlikely to be little babies with clean slates – they will often have experienced huge loss and trauma and it seems the true rate of adoption breakdown – children returning to care via section 20 – is much higher than research suggests. Egg donor IVF may have more ‘success’ rates as child presumably not exposed to trauma in the womb, but I remain uneasy about any process involving children which has as its primary focus making adults feel better.

Gender Affirming treatment for a child – the role of the court to determine disputes

On 3rd June 2025 the High Court handed down judgment in the case of N v N (Expert Evidence on Gender Affirming Treatment) [2025] EWHC 1325 (Fam)

This case involved a child B who was 17 in May 2025. The court refers to the child as ‘she’ but it is clear that B is male so I will use male pronouns. His parents wanted a declaration that B lacked capacity to consent to taking cross sex hormones as ‘gender affirmation’ treatment. The child had a Guardian but instructed his own legal team. The father had also made an application for judicial review of the decision of B’s GP to prescribe hormones to children.

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B lives with his parents and had been prescribed female hormones by a GP since October 2024 pending referral to a specialist gender service. B forged his mother’s signature to get this prescription. In March 2025 CAMHS confirmed that B had ‘gender incongruence’ and accompanying distress.

B’s parents were concerned that there had been no proper holistic assessment of his overall mental and physical health to inform such treatment and this was not in line with the Cass Review and other professional guidance.

This judgment followed a case management hearing, all parties agreeing it was necessary to instruct an expert endocrinologist to assist the court. However, they couldn’t agree that expert’s identity. The parents also wanted to instruct a psychiatrist to report on B’s capacity and asked the court to agree that this was a special ‘medical treatment’ case so each party should be allowed to instruct their own experts. The usual way forward in family cases is for a single joint expert.

B disagreed that a psychiatrist was necessary on the basis that there was no evidence he lacked capacity or that the current treatment risked serious harm to him. If the court didn’t accept B’s position, it should not endorse the parents’ chosen expert, as he sought to advance a particular view about ‘gender affirming’ treatment, i.e. he was not a fan. Equally, the parents’ chosen endocrinologist should not be appointed, as she too ‘has a fixed agenda to advance’ (para 11).

The relevant law

The court then examined the relevant law regarding children’s capacity and referred to the earlier Court of Appeal decision in O v P which I have written about here.

It is useful at the outset to distinguish between three possible issues with which the courts have to deal. First, there is the issue of whether a child under 16 is competent to consent or to refuse medical treatment (see Gillick v West Norfolk and Wisbech AHA [1986] AC 112 (Gillick), and more recently R(Bell) v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All ER 416 (Bell v Tavistock). Second, there is the issue of whether a child (but also an adult) has mental capacity to consent to or to refuse medical treatment (see sections 1-6 of the Mental Capacity Act 2005). Thirdly, there is the issue of what is in the child’s best interests. This issue arises once the presumption as to competence of a child over 16 to consent or refuse medical treatment is engaged (see section 8 of the Family Law Reform Act 1969 (FLRA 1969), which provides that a child over 16 can give consent in the same way as an adult, and not further consent is required from parents or guardians). Despite section 8, the court still retains the right to override consent given or withheld by a child over 16 on welfare or best interests grounds in very limited and well defined circumstances (see Re W (A Minor)(Medical Treatment: Court’s Jurisdiction) [1993] Fam 64 (Re W).

With regard to the instruction of experts in family cases, the court has to be satisfied that this is ‘necessary’ and where ever possible provided by a single joint expert (see r.25.12 of the Family Procedure Rules 2010).

The court agreed that it was necessary to instruct an expert endocrinologist, and that should be B’s choice of Dr Cotterill, noting at para 38

…the evidence before the court demonstrates that B is currently receiving HRT in the form of spironolactone and oestrogen. The parents seek to prevent B from continuing with that treatment. Within this context, the court does not have expertise on the benefits and risks of HRT used as “cross-sex hormone” gender affirming treatment. Further, the court has no expertise on the benefits and risks of ceasing such treatment after it has commenced, or of continuing such treatment once it has commenced.

Dr Cotterill had been instructed in other cases in this country and could report in 2 weeks. The court noted at para 41

An expert who focuses on the relevant science and medicine and its impact or otherwise on the subject child, rather than on the wider social, philosophical and political context in which that science and medicine is developing, is likely to be of most assistance to the court, having regard to the role of a jointly instructed expert and the duties of that jointly instructed expert under FPR 2010 Part 25. None of this is to impugn the work of Professor Dahlgren and her informed point of view, but rather simply to prefer the expertise and clinical focus of Dr Cotterill on the facts of this case.

The court did not agree that this case was part of a ‘special category’ where a second opinion should be allowed as a matter of course (para 43). The parents could make further application to the court after receiving Dr Cotterill’s report if they considered it was necessary to request a second opinion. The court would also limit the questions to the expert, as the parents’ questions went more to the merits and consequences of gender affirming treatment generally, rather than the impact on B.

But with regard to the instruction of a psychiatrist, the court noted that he parents wanted the court to ‘examine wider questions of policy with respect to gender affirming treatment’ (para 25). The court reminded itself of what the Court of Appeal said in O v P – matters of policy regarding this treatment are for the NHS, the medical profession, the regulators and Parliament. This case was not a forum for determining the wider political, social or philosophical questions arising from the treatment.

The parents had not provided the court with any evidence that B lacked capacity to consent to taking hormones, other than expressing ‘concerns’ about his mental health and doubt as to whether he had been fully informed of the risks. But the court noted that B had litigation capacity to instruct his own solicitors and he wished the court to know he found it ‘insulting’ to have his capacity questioned in this way.

The court did not find there was cogent evidence that B had mental health difficulties to an extent that would impact his capacity. The court balanced the diagnosis of the CAMHS psychiatrist that B had gender incongruence against the parents’ strongly held views that gender affirming treatment would be inevitably harmful and considered that it would have an adverse impact on B to direct an assessment that he is ‘vehemently against’ (para 36). The court therefore declined to instruct a psychiatrist.

The court’s conclusion is firm at para 47

Finally, and to repeat, this case is and always will be about only one thing. Namely, B’s best interests. This is not, as it has been described in some correspondence the court has seen, a “landmark” case. It is already difficult for a young person when their parents decide to engage lawyers and commence litigation as a means of challenging their choices. Those difficulties can only be enlarged if attempts are made to use such already emotionally charged family litigation as a collateral means of addressing matters of policy with respect to gender affirming treatment that are properly the province of the NHS, the medical profession, the regulators and Parliament. The court will not permit that to happen.

Commentary

It is reassuring to see that the court, indeed both parties, agreed that it was necessary to have some expert medical evidence about the impact of cross sex hormones. I also agree that the court is right to warn against using the welfare of an individual child to wage war on a broader ideology. I agree that the courts cannot overstep into matters which are rightly left to Parliament or the good sense of individual doctors.

But. That doesn’t mean the wider setting of these issues can simply be ignored and this is particularly relevant with regard to the issue of capacity to consent to this treatment. The courts should have no doubt following the Cass Review and the investigations into the Tavistock, that this is a field of medical intervention with children that has itself been hijacked by ideologues. The family court remains the last defence of children who have been dangerously let down by medical and social work professions that have rushed to ‘affirm’ any child’s bare wish to ‘change sex’, despite the lack of any compelling evidence that medical interventions have a positive benefit. This is obvious from the response of the Government to banning puberty blockers and now consulting on the wisdom of providing cross sex hormones to children over 16.

It is disappointing to see no discussion at all in the judgment of the Court of Appeal’s reasoning in O v P as to why the court should continue to have oversight over the provision of cross sex hormones, even to a child with presumed capacity to consent. The Court of Appeal were able then to recognise the rapidly changing ground beneath their feet and the need for caution – why couldn’t this Judge?

And of course, in O v P the 17 year old child in that case was found to be articulate and intelligent just like B – but it was later revealed that the child in conspiracy with her father had set out to deceive the court and the Guardian and had been taking hormones for many months. I note that B was also dishonest in forging his mother’s signature to get his hormones on prescription.

Of course one may be dishonest and have capacity, but in my view, that both children were willing to engage in such deceptions is a measure of how significantly matters have spiralled out of control in this field, where those who have decided that this is what they want to do cannot or will not hear any cautionary voice. This is a very dangerous place to lead children.

I was reminded of a comment at the Genspect conference in Lisbon in September 2025, that stuck with me. Parents were often simply dismissed as ‘transphobic’ by medical professionals, but it was forgotten that it was usually only the parents who saw the whole arc of their child’s life and worried about it.

There is a huge and broad canvass of worry and doubt over what is being done to children in the name of ‘gender identity’. It is difficult for me to see how any child has the capacity to consent to a course of treatment that is unevidenced and irreversible. It is not meddling in policy for a court to agree that great caution is needed here. The fact that a child simply refuses to engage in a psychiatric assessment is not an indication that one is not needed (I would argue the reverse), however I agree it makes it practically difficult to arrange.

Of course, the court should never be asked to determine who is on the ‘Right Side of History’ as this cannot be their role in a democratic society. We have to leave the creation of law and policy to the elected politicians.

But the court interprets the law and it cannot do so in a vacuum. Any court dealing with the welfare of a child ought to be willing to consider the wider negative impact of unevidenced and dangerous medical practice in this field on a child’s ability to offer informed consent. That is neither playing God nor dabbling in policy decisions but rather doing the job with which the High Court is entrusted – to exercise the ancient parens patriae jurisdiction to secure the welfare of every child before it.

Naming a parent in private law proceedings

The forward movement of the family justice system towards embracing greater transparency continues. As of 27th January 2025 new open reporting provisions apply in all family courts in England and Wales, allowing accredited journalists and legal bloggers to report on what they see and hear whilst attending any family court if a transparency order is granted  see PD12R Family Procedure Rules 2010. This initiative was described by the President of the Family Division as a ‘watershed moment for family justice

However, it remains usual to protect the anonymity of children involved in family proceedings, by keeping identifying details out of the published judgments. Children have no choice whether or not they get involved in acrimonious parental disputes and have a right to be shielded from the potentially harmful consequences of wider public knowledge of their family’s dysfunction or trauma.

Thus there are statutory restrictions on the publication of information from family proceedings. When permission is sought to relax existing statutory restrictions (see section 12 of the Administration of Justice Act 1969 and section 97 Children Act 1989) the court must have an ‘intense focus’ on the competing rights at play – articles 10 and 8 of the ECHR which protect freedom of speech and privacy rights – see  Re S (A Child) [2005] 1 AC 593

I represented a father in a recent contested application by a journalist to name him in private law children proceedings. I resisted that application, which in my view represented a flawed understanding of both the nature and extent of the journalists’ article 10 rights.

This case had been long running and very acrimonious. An initial finding of fact was successfully appealed as unsafe, following by a second finding of fact, a costs judgment and a welfare decision. The father had not objected to the anonymised publication of any of these judgments so there was already a wealth of information in the public domain to inform discussion about how the family justice system had dealt with issues of abuse and coercive control in these proceedings.

The court had made significant findings that he had caused serious physical, sexual and emotional harm to the mother. Consequently, his parental responsibility was extinguished and he was to have no direct contact with the child, due to the harmful impact this was likely to have on the child’s mother. The court did not however make a finding that the father posed a risk of direct harm to the child and carried out no wider risk assessment.

At the conclusion of the welfare hearing, a journalist made an application to name the father in her reporting of proceedings. This application was supported by the mother and unusually, the child’s Guardian. The father resisted.

The judgment sets out a helpful examination of the various authorities where naming parents or others involved in proceedings was permitted. Often information was already in the public domain and thus the risk to the children of being identified was already apparent. The Judge noted Griffiths v Tickle and Others [2021] EWCA Civ 188 where it was clearly in the public interest to name Mr Griffiths. He had occupied a position of power as a Minister of State and had been publicly dishonest about his previous behaviour.  

The main thrust of the journalists’ argument in the present case was that she was under a duty to make the public aware of the risk the father posed and she considered that ‘every perpetrator’ against whom findings were made in the family court should be named if there was no professional body to take the findings into account. She accepted that this would represent a ‘leap’ from other cases, but it was needed for the protection of the public – ‘rape was rape’ and the father would not be on the Sex Offenders Register as these were not criminal proceedings.

The journalist elaborated by arguing that the father was a ‘public figure’ and held various ‘positions of power’ with links to educational settings. Any risk to the child of association with his father’s name could be handled by the mother and that risk was low in any event given the child’s very young age.  If the court did not publish the father’s name, it would be ‘silencing a rape victim’.

The father responded that he was not by any definition a public figure and did not hold any positions of power. He was worried that he had put information online linking his son directly to him so there was a risk of jigsaw identification. Naming him would be devastating; if he lost his job that would impact his ability to continue to provide financially for the child. This risk of identification and his own article 8 rights, outweighed the claimed article 10 right of the journalist to name him. There was an obvious and important distinction between criminal and family courts, given their different roles and different standards of proof. The role of the family court was not to punish parents but to determine the welfare of children.

The court did not accept the journalists’ submissions and found that the ‘grave public protection’ argument had not been established, and appeared to rest on perceptions of the journalist and the mother, rather than the findings of the court.

The father was not a ‘public figure’, he was not a figure of ‘moral leadership or standing’ there was no information about this case already in the public domain, the mother was not being ‘silenced’ if the father was not named, there is no public interest in ‘holding the father to account’ although the court felt it understandable the mother wished to do so.  Griffiths v Tickle was easily distinguished. Although the findings against the father were serious, they should not be exaggerated to support an application to name him.

The judge noted at para 63 that naming the father was effectively to ‘expose the father to public shame’. It was not the court’s task to carry out a risk assessment of the father towards third parties, there had been no psychological assessment of the father and thus no basis to justify naming his as a measure of public protection (para 65).

Conclusions

As the Judge stated at para 30

As the Master of the Rolls stated recently in Tickle & Another v The BBC & Ors [2025] EWCA Civ 42, the principle of open justice, “is applicable as much in family proceedings as in any other proceedings”. The statutory limitations contained in section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1989 do not displace the open justice principle or create any separate “shielded justice” environment. They provide a degree of privacy for certain proceedings relating to children according to their terms [45]. Open justice is of vital importance to a democratic society and a properly functioning judicial system.

The Judge also noted the President of the Family Division’s report: In Confidence and Confidentiality: Transparency in the Family Courts, October 2021. The issue of fathers who have committed sexual violence having contact with their children is an important issue and will benefit from the different perspective brought by independent media.

I do not quarrel with the obvious public interest in continuing public scrutiny of the family justice system. I would happily welcome journalists to all and any of my cases, but note with sadness that the vast majority of my work does not attract a scrap of media interest, despite often dealing with matters of obvious public interest – the harmful consequences of the lack of available foster carers or residential placements, the lack available support for parents with disabilities and children in mental health crisis, the dangerously high numbers of cases social workers are expected to juggle. All issues equally worthy of journalistic scrutiny and yet which do not appear to attract much journalistic interest. 

It was unfortunate in this case that the journalist and the mother chose to base their application on assertions which were not supported by the court’s findings. Also, that the Guardian (para 90) did not assist the court, by failing to carry out a proper balancing exercise of the factors for and against publication. It did appear that the application was driven by a desire to ‘hold the father to account’ – but that is the role of the criminal courts and the mother had chosen not to involve the police at any time.

What such applications require is always an ‘intense focus’ on competing rights. Part of that focus must be recognition that what the public are interested in does not always necessarily align with what is in the public interest. Having a named father as the villain of a piece makes for more titillating reporting but does not necessarily advance the public interest in understanding more about the family justice system, and it puts children at risk of identification. As more journalists continue to blur the line between impartial reporting and active campaigning, the court must continue to scrutinise their submissions with care.

Family proceedings are generally private, not to allow professionals to escape public scrutiny, but for the welfare of the children who have very little control over the many ways their parents fail them and usually very little appetite for public discussion of these failings.

NB The judgment should have been published but I can’t find it so far – I will keep looking!

Good news from Down Under re medical transition of children

Commentary

The decision of Strum J on 9th April 2025 is a very welcome indication that the Australian Family Court is moving away from the notion that medical transition of children should be seen as automatically ‘therapeutic treatment’, in a meticulous and lengthy judgment which unpicks the mother’s case and her expert witnesses with care.

It is both disturbing and alarming to see how the mother was ‘affirmed’ by various experts in a ‘fixed and rigid’ view that her son wanted to be female, but heartening to see a Family Court Judge who was very aware of what was going on and was having none of it. There are clear echoes of Re J [2016] here and a very welcome indication that we are returning to a strict focus on the welfare of the child, rather than a continued pandering to an unevidenced and ideological perspective about the benefits of medical transition for children.

Para 92 is for me particularly interesting. The Judge in this case rejected criticisms by a fellow Judge of the Cass Review as politically motivated calling such remarks ‘speculative’. It is clear that this Judge found the Cass Review authoritative and helpful, relying on its developmental considerations for children and adolescents and citing at length its conclusions about the efficacy and impacts of puberty blockers.

I cheered internally when reading the Judge’s firm rejection at para 106 of any ’emotive suggestion’ that the Cass Review should be seen as part of a ‘third wave’ of transgender oppression, akin to Nazi book burning. Such suggestion had ‘no place whatsoever’ in independent expert evidence and demonstrates ignorance of the true evils of Nazism.

The Judge was clear that earlier decisions of the Australian courts that treatment by way of puberty blockers is ‘therapeutic’ would need to be reconsidered on the better evidence that he had before him (para 194).

It is a relief to see recognition that the mother derived ‘benefit’ from being the parent of a trans gender child (para 203) and the court had grave reservations about her operating sole parental responsibility.

While the judgments meticulous and clear eyed unpicking of the partial and misleading positions of the mother’s experts is very welcome, it remains a matter of great sadness that for so many years, the Family Courts, in a variety of jurisdictions, have been willing to abandon evidence and sense to support an ideology that has the potential to cause irreversible and significant harm to children.

Let us hope this judgment heralds the return of Family Courts all over the world to their fundamental values; to identify and protect the welfare of the child as its paramount concern.

The Judgment

Re: Devin [2025] FedCFamC1F211

This case involved a 12 year old boy. His parents separated when he was 4 years old. Final parenting orders were made in 2018 which provided for the parents to have equally shared parental responsibility. By 2019 the mother had concerns about Devin’s wellbeing and wished him to undertake therapeutic counselling with an organisation dedicated to the well being of LGBTIQ+ community. Devin’s mother said he was suffering from gender incongruence/dysphoria and should be medically transitioned by way of puberty blockers as he had an ‘enduring female gender identity’. This wish to block his puberty was first expressed in 2021 when he was 8 years old and already significantly socially transitioned.

Devin’s father disagreed, asserting that he was rather ‘gender expansive’ and presented with some stereotypically feminine interests/preferences. The hearing took place over 20 days with a significant volume of evidence.

The ‘Reasons for Judgment’ begin with a quote from Maria Montessori

A child has a body which grows and a mind which develops. Both his physiological and psychic development have a single source, life. We should not corrupt or suffocate his mysterious potentialities but wait for their successive manifestations.

The Judge noted that this illustrated the central issue for determination in this case; there are restrictions on the activities and choices of children because their wishes and feelings, while potentially deep seated and genuinely felt, have ‘potentially grave ramifications for their future lives’ and may not be wishes that survive into adulthood.

It is troubling that the Judge comments at para 10

Despite my repeated exhortations to the parents and, to some extent, the experts who supported their respective cases, as well as the lawyers who represented them, to recall that the Court was deciding a case involving the best interests of the child and not the cause of transgender people, that occasionally seemed to fall on deaf ears.

The mother’s experts strayed from their obligations to give objective and unbiased opinion, such as Professor L who described herself essentially as an activist for the transgender cause and who gave misleading responses that omitted findings/material that detracted from her opinion (para 101). She went even further, suggesting that ‘we are currently living through the third wave of transgender oppression’ similar to Nazi book burning (para 105). The Judge was aghast (para 106)

The emotive suggestion, by an expert witness, that the Cass Report forms part of a “third wave of transgender oppression” commencing with the Nazis has no place whatsoever in the independent evidence that should be expected of such an expert. It demonstrates ignorance of the true evils of Nazism and cheapens the sufferings – and mass murder – of the millions of the victims thereof, which included, but were most certainly not limited to, transgender people, as well as gay and lesbian people, amongst other groups of people. I consider there to be no comparison whatsoever.

The mother’s case outline referenced the Change or Suppression (Conversion) Practices Prohibition Act 2021, which the Judge determined was irrelevant to these proceedings, but the Judge noted the ‘chilling effect’ of this Act in the difficulties faced by the father in obtaining expert evidence and alternative treatment proposals for Devin, as there was evidence to suggest that many shyed away from treatment that was not ‘affirming’ in case they fell foul of the Act, which creates criminal offences attracting up to 10 years imprisonment.

One expert stated

Anecdotally, I have heard practitioners express concern that if they do not automatically affirm a child’s declared gender identity they would find themselves accused of “conversion therapy” as per the legislation. This is despite social transition not being beneficial or harmful, exploratory therapy being an acceptable approach worldwide, and the fact that there would be no need nor intention to “convert” [the child] to have a “cis” identity, just merely not blinding affirming and medicalising.

The Judge was blunt. Para 24

I made it clear … that the Court was not concerned “in what the community thinks” or ideologies, but only what, on the evidence, is in the child’s best interests. Ideology has no place in the application by courts of the law, and certainly not in the determination by courts exercising jurisdiction under the FLA of what is in a child’s best interests.

It is heartening to see the Judge pay careful attention to the Cass Review final report (note para 51) and the considerable variation in international guidelines regarding criteria for starting puberty blockers. The experts disagreed with whether or not Devin had gender dysphoria/incongruence and on the likelihood of Devin persisting with either. The Judge was particularly critical of the mother’s expert Dr N and how cross examination revealed ‘significant issues’ with her diagnostic process. She failed to undertake a ‘biopsychosocial’ assessment of Devin (a broad framework that takes into account the full range of interacting factors) and her notes did not support a ‘consistent, persistent female identity’.

Dr L was similarly treated with caution, as she relied on her own work in drafting the Australian Standards of Care and Treatment Guidelines as ‘best practice’, making her ‘judge, jury and executioner’. The Guidance is strongly ‘affirming’ and relies on statistics about suicide attempts if affirming does not occur. The Judge was particularly concerned to note the Guidance does not consider failure to affirm a ‘neutral’ option, commenting at para 74

it is concerning that an oddly binary approach is adopted in relation to children, especially of the age of the child the subject of these proceedings; that is, to affirm unreservedly those who present with concerns regarding their gender, brooking no questioning thereof. The case of the mother, supported by the evidence of Dr N, is that because the child says so, the child is, and must unquestioningly be affirmed as being, female in gender identity. However, that overlooks the obvious, namely, that the child is still a child and not even, if it matters, a teenager.

The Judge notes at para 75 that the child has lived in a gender affirming home environment and has a social circle dominated by transgender young people. Devin was introduced to a transgender ‘support’ group at the age of 6. The possibility of contextual/environmental influence was accepted, even by Dr N. The mother chose ‘gender affirming underwear’ for her son, to pressure and flatten the penile area, without seeking any medical advice as to its potential adverse impacts.

With echoes of the English case Re J [2016] the mother further asserted that Devin wanted to cut his penis off and tried to self harm aged 6. But she made no mention of any of this in an affidavit of August 2020 and the Judge considered this issue had ‘gathered momentum with the passage of time’ and he rejected the mother’s evidence about this noting her ‘rigid, fixed’ views.

Although the mother’s experts opined that ‘gender identity’ is ‘internal and immutable’ and thus not subject to external influence, neither could point to any empirical or substantive basis for their opinion, but offered only anecdotes (para 88). The Judge was concerned by the mother’s team’s dismissal of any other relevant factor such as maternal influence or underlying neurodivergence (para 90). Again the Cass Review is given favourable mention and the mother’s experts criticised for being ‘at odds’ with it (para 91). Bizarrely it was the mother who put the Cass Review in evidence, even thought it did not support her case.

Interestingly, the Judge dismissed the criticism of the Cass Review offered by a brother Judge in the case of Re Ash (No 4) [2024] FedCFamC1F 777, (para 92). To suggest that because the Cass Review was undertaken in a ‘vexed environment’ means that it was driven by ‘political imperative’ was a rejected by this Judge as ‘speculative’. The Judge goes on to quote at length from Chapters 6 and 8 of the Cass Review, that examine developmental considerations for children and adolescents, and the possible factors influencing the ‘very altered profile of the children and young people who are now being seen in NHS gender services’.

The Judge comments at para 98

Importantly, the Cass Report states that “[s]implistic explanations of either kind (‘all trans people are born that way’ or ‘it’s all social contagion’) do not consider the wide range of factors that can lead young people to present with gender-related distress and undervalues their experiences” (at paragraph 8.25) and that, rather, “gender incongruence is a result of a complex interplay between biological, psychological and social factors” (at paragraph 8.52). Those statements accord with much of the evidence in this case, as well as with commonsense, and I place significant weight on them.

The Judge was clear that Dr N had allowed herself to be influenced by the mother and failed to take into account the father’s views or parenting style (para 111). The imminence of the trial was conceded by Dr N as causative of a diagnosis of Devin as incongruent/dysphoric and in this ‘rush’ to provide evidence the mother at least distorted some of Devin’s symptoms.

At para 123 the Judge confirmed that the opinion of Dr M was not, as the mother alleged either transphobic or ideologically extreme. Dr M had said

Humans cannot change sex. It is not possible for [the child] to be a girl, a woman when he’s [sic] older, or a female. He [sic] can only ever be a male, or a male whose body has been medicalised. It should be celebrated that [the child] is a male who refuses to be constrained by current society’s expectations of his sex, while at the same time maintaining the reality of that sex. [The child] should be prepared for puberty in that it brings changes and while these changes can be confronting and distressing for many of the human race, it will give him [sic] benefits when he [sic] is older. It is important that the adults in [the child’s] life remember that puberty is not a disease, it is a normal developmental stage of humans that brings sexual and reproductive maturity. Avoiding this means [the child] will never reach this stage of maturity.

Taking into account all the concerns about the mother’s evidence, the court was not willing to find the mother had proved on the balance of probabilities that Devin is gender incongruent or had gender dysphoria. IF Devin were either, should puberty blockers be administered? (para 134). The Judge was not impressed with Professor L’s opinion that ‘trans people’ are best placed to know what is in their best interests, given the complexity of the medical evidence adduced in this case (para 143). The Judge accepted the evidence of Dr O (para 151) that there was a lack of evidence and expert consensus regarding gender affirming treatment and an alternative avenue is developmentally informed and holistic psychotherapeutic approaches.

The Judge examined the therapeutic approach at length and expressed concerns that the CHGS clinicians overstated the certainty of the evidence and dismissed the possibility of alternative treatment. He cites the Cass Review to note the surprise that the novel use of puberty blockers did not require a more rigorous trial (para 158) and the concern about the impacts of blocking puberty in general.

The impacts on Devin of puberty blockers, given that almost all children who take puberty blockers progress to cross sex hormones, would be to arrest his physical development at Tanner Stage 2. His penis would never grow. He will be sterile. He will have no sexual function. He will likely develop bone thinning. The effects on his brain are unknown. He will be a medical patient for the rest of his life.

The Judge was therefore not satisfied that even if Devin was gender dysphoric, the purported benefits of puberty blockers outweighed the identified risks (para 187). He accepted the opinion of Dr M (para 191)

the most likely best strategy for [the child] would be to give him [sic] time to breathe, to allow life to settle in his [sic] visitation pattern, to not push nor deny any expression, to not seek treatment or information on a condition/state that [the child] may or may not have that may or may not eventuate into something more formative. Both parents should avoid [the child] being “boxed in” to any identity. It is possible that ongoing engagement with [City K Children’s Hospital] Gender Clinic and its affirmative nature could serve to concrete [the child’s] alternate gender identity that might otherwise desist if left to live life without influence of gender affirmation.

The Judge made it clear that treatment by way of puberty blockers is qualitatively different to childhood vaccinations or surgery to mend broken bones. Earlier decisions of the Australian courts would need to reconsider its categorisations of puberty blockers as reversible.

It is also very refreshing to see the Judge note that the mother derived a personal benefit from being the parent of a transgender child; this had influenced her actions.

Court of Appeal confirms it can override the capacity of a 16 year old who wishes to take cross sex hormones

On 19th December 2024, the Court of Appeal agreed in the case of O v P and Q that it was wrong to dismiss proceedings about a child wanting cross sex hormones in the face of parental opposition, once that child was 16. Proceedings would be adjourned to consider the result of a further assessment with Gender GP because of the rapidly changing landscape regarding medical transition. The Court of Appeal agreed it had the power to override a competent child’s consent, even when that child was 16. However, the Court of Appeal declined to designate medical transition should be a ‘special category’ of treatment, thus requiring automatic oversight by the courts.

This is a significant step forward for the family courts which have shown to be dangerously captured by gender identity ideology over the years. Bell v Tavistock in 2020 was a seismic event that triggered the Cass Review – but the Court of Appeal then rowed back. In 2019 the High Court was prepared to find there was ‘overwhelming evidence’ to support the social transition of a 4 and 7 year old. In 2023 the President of the Family Division (who sat in the Court of Appeal for these proceedings) was willing to send a teenage girl out of the country to have her breasts removed – a procedure that would be unlawful here.

The Court of Appeal’s decision that medical transition requires a little more scrutiny in a post Cass landscape is a welcome course correction – but a ‘throwaway’ comment about the Review itself does remind me that we are not out of the woods yet. I will discuss this in further detail below.

Background

I represented the mother at the first court hearing in April 2024 and have written about it here. These proceedings involve a 16 year old girl who for several years expressed the wish to transition to be seen as the opposite sex. Her parents had separated. The father was very supportive of transition, the mother implacably opposed and she made application to the court.

The court were prepared to support the mother and deny any medical intervention while the child was under 16, but once that age is reached, the Family Law Reform Act 1969 says that a child with mental capacity should be treated as an adult when making decisions about medical treatment.

I argued that the High Court had the power to override a 16 year old’s ability to consent to a medical intervention that was unevidenced and highly controversial; there could be no ‘informed consent’ in such circumstances. The Cass Review – which was published a week before the court made its decision– was clear that prescribing hormones to 16 year olds, should be approached with ‘extreme caution’ and required a second opinion from an independent multi disciplinary team.

The Gender Plus clinic had been regulated by the Care Quality Commission in January 2024 to provide cross sex hormones to children and the child wanted a six month assessment there. However, we all agreed that no private provider would be able to meet the Cass/NHS requirements of an independent second opinion offered by a multi disciplinary team. The mother wanted the court to adjourn the matter, have oversight of any assessment by Gender Plus and be prepared to deny treatment if it did not consider it in the child’s best interests. The mother further argued that provision of medical transition should be considered a ‘special category’ of treatment, over which the courts should have continuing oversight.

The first court did not agree and dismissed the proceedings, on the basis the child was 16 and therefore benefited from the presumption of capacity in the Family Law Reform Act. She is intelligent with no impairment to her brain functioning and Gender Plus was a regulated provider. There was thus no ‘realistic prospect’ of overriding the child’s wishes and the continuing proceedings were causing distress and emotional harm.

The Court of Appeal agreed to reconsider that refusal, as a matter of public interest. It heard submissions on 12th December and judgment was handed down on 19tth December – a remarkably quick turn around.

The judgment of the Court of Appeal

The Good

The fundamental question before the court was if the Judge had been right to refuse to continue proceedings to allow the court to consider the outcome of the Gender Plus assessment.

The mother made the following points

  • The legal and regulatory landscape for gender dysphoria treatment was changing rapidly
  • The final Cass Report was published on 10th April, a week before the hearing
  • The Government was continuing to take steps to respond to the Cass Review
  • Gender Plus was a private provider, whose procedures diverged from the NHS protocols.

Thus, cases concerning this kind of intervention should be a ‘special category’ of case with continued court oversight.

The Court of Appeal did not agree this was a ‘special category’ of treatment but agreed ‘although not without hesitation’ in saying that the Judge had been wrong to refuse to keep the court proceedings alive, for two combined factors (see para 7)

Gender Plus could not satisfy the recommendations made in the Cass Review, particularly the requirement that every case required consideration by a national multi disciplinary team

The Cass Review had only just been published at the time of the first court’s decision, and the Government was taking various steps to implement it in ways the court could not predict but which might ‘affect an appropriately objective view of where the young person’s bests interests lay’.

The Court of Appeal stated (para 38) that the judge had not put enough weight on the ‘rapidly changing regulatory environment and the situation of private providers like Gender Plus in light of the recommendations made by the Cass Review’. The court was also struck by the first Judge’s observation that she was ‘not sure’ if she shared the Guardian’s confidence that the child was able to consider all the evidence about treatment in a ‘balanced and unbiased’ way.

The wiser course of action was therefore to keep proceedings alive until the Gender Plus assessment was completed and then it can be considered if necessary by the court.

This is a very significant decision. The Guardian and the father argued there could be no justification at all for an adjournment – the child wanted the treatment, the child was 16, WPATH guidelines were followed, the doctors had to be trusted and that was that. Prior to the Cases Review, this argument would have been accepted. That the Court of Appeal now rejects it, is a significant blow to those activists who continue to assert that medical transition is not merely uncontroversial but ‘life saving’ It is a welcome reinforcement by the Court that the Family Law Reform Act does not provide a child with an absolute right to consent or refuse treatment, and is a recognition by the court that the medical profession requires continued oversight in this area. This contrasts with the approach of the Court of Appeal in Bell and the refusal there to get involved at all with the doctor/patient relationship – even when that patient was a child who could not possibly consent.

Further, this judgement is positive news for the application for judicial review of the decision by the Care Quality Commission to regulate Gender Plus, as the fundamental premise of that legal action is that the CQC acted unreasonably in regulating a private provider which could never meet the standards now demanded by Cass/the NHS. REF JR It also conceivably gives impetus to further challenges to the Secretary of State for Health for permitting cross sex hormones to be provided to teenagers without at least the prior approval of the court.

The bad

So lots of good stuff. However, the judgment is in other respects disappointing. It dodges and fudges what in my view is the central issue; the court needs to step in to protect children from highly controversial medical interventions, the evidence for which as identified by the Cass Review is ‘remarkably weak’. Wes Streeting, when announcing on XX the permanent ban on prescribing puberty blockers outside of a clinical trial, declared that it was a ‘scandal’ that such interventions had been allowed in the absence of a clear evidence base. I agree.

Despite all this, the Court of Appeal rejected the invitation to treat medical transition as a ‘special category’ of treatment, meriting continued court oversight and instead reduced the issue to a much more narrow one of keeping open the possibility that the court might need to decide whether hormone treatment was or was not in this child’s best interests at some future point.

If the likely sterilisation and deprivation of adult sexual function for a child, based on ‘best practice’ that is anything but, does not merit being a ‘special category’ of medical intervention, then I cannot understand what would be. The Guardian at the first hearing had many meetings with the child but failed to talk at all about potential future sterility. Neither the Guardian nor the first court considered this was a problem. The father and Guardian continued to rely on WPATH guidelines before the Court of Appeal, despite now ample evidence from the Cass Review and cases in other jurisdictions that they are not reliable – see for example Boe v Marshall Boe v. Marshall – Alabama Attorney General’s Office and the Cass Review paras 47, 48, 9.22, 9.23, 9.32, 12.28, 12.30.

As the mother’s solicitor Paul Conrathe commented after the judgment

The Court stated that such protective measures were for regulators and Government. With the regulator, the Care Quality Commission, deemed unfit for purpose by a recent independent review, it is for Wes Streeting to step up and put in place protections for vulnerable children receiving powerful irreversible experimental treatments in the private sector. The profit motive, ideological zeal of clinicians and exceptionally poor evidence base for this treatment mean there is a desperate need for urgent regulatory protection in the private sector

I appreciate there are obvious and necessary public policy reasons as to why any court should not be seen to ‘take sides’ in any area of controversy. But nor should any court claim controversy or uncertainty when none exists. The Cass Review searched over four years and could find no reliable evidential basis for medical intervention for childhood ‘transition’. In my view, no child has the capacity to consent to it. This is an area almost entirely captured by political activists. The Court should have been willing to acknowledge this, or at least entertain the possibility, having before the wholesale adoption of Dr Cass’s recommendations by the NHS and Governments of both political colours.

But instead, the Court of Appeal makes a bizarre and concerning reference at para 19

The Cass Review has received wide publicity. Like the subjects it covers, it is controversial. Strongly held views have been expressed on both sides of the debate. Nothing I say in this judgment should be construed as expressing support for one side or the other.

‘Strongly held’ views have indeed been expressed, to the extent that Dr Cass may no longer freely travel on public transport, given the threats made to her safety by some who express such ‘strongly held’ views. I should not have to point out to the Court of Appeal, that the weight and influence of one’s views is not determined by the vehemence with which they are expressed. The CoA states explicitly that the Cass Review should be considered ‘controversial’ without providing any detail as to the nature and quality of that controversy and the ‘evidence’ on which Cass’s detractors rely – which has been routinely poor. The Court of Appeal has now given these detractors credibility which they do not remotely deserve and this is gravely disappointing.

For example this is what journalist Jesse Singal had to say about the white paper ‘An Evidence based Critique of the Cass Review’ published by the ‘Integrity Project’ which is associated with but NOT endorsed by Yale University. Yale’s “Integrity Project” Is Spreading Misinformation About The Cass Review And Youth Gender Medicine

McNamara et al. is an exceptionally misleading, confused, and fundamentally unprofessional document. The authors make objectively false claims about the content of the Cass Review, badly misrepresent the present state of the evidence for youth gender medicine, and, just as alarmingly, exhibit a complete lack of familiarity with the basic precepts and purposes of evidence-based medicine. In some cases, the errors are so strange and disconnected from the Cass Review that they can only, realistically speaking, be attributed to malice, a severe lack of curiosity and reading comprehension, or both. This might sound harsh, but you’ll see what I mean shortly. It is genuinely surprising that any of the co-authors would agree to put their names on a document like this.

Conclusions

I agree no court can play politics or attempt to regulate the medical profession. But this is about evidence, the best interests of children and the exercise of the ancient parens patriae jurisdiction. When the medics have no clothes on, the court should be willing to notice.

Despite all this, we must not lose sight of the significance of this judgment. We have come a long way from 2019 and the High Court’s enthusiastic endorsement of socially transitioning a four year old. The Court of Appeal has confirmed it is willing to override the wishes and feelings of a capacitious child who wants to medically transition, if to do so is in that child’s best interests. As more cases about ‘medical transition’ come to court in jurisdictions all over the world, as more detransitioners seek damages for what was irreversibly done to them, the more the courts will have to step up and do their job; to protect children when other adults have lost their minds or any allegiance to evidence.

And I offer very great thanks to the mother in this case, who has done her best to protect her daughter in what has been gruelling legal proceedings. I hope has made it easier for other children to be protected as well.

The Cleveland Scandal Revisited

I was recently contacted by the journalist Beatrix Campbell with a link to an address by the President of the Family Division Sir Andrew McFarlane to the British Society of Paediatric Radiologists. He said this about the Cleveland Inquiry, which has loomed large over family lawyers for the last 30 years. Speech by the PFD: Suspected Physical Abuse of Children – Experts in the Family Court – Courts and Tribunals Judiciary

I suspect that those in the audience, like me, had understood what had happened in Cleveland arose from misdiagnosis by the two paediatricians. In that regard a recent book by journalist Beatrix Campbell ‘Secrets and Silence’ may be of interest. All these years later, with the ability to inspect previously confidential documents in the National Archive, the book explains that most of the children were probably the victims of sexual abuse, and therefore the diagnosis by medical professionals was likely to be correct. The book reveals a lack of transparency which has had lasting impacts. As a result, there as been a continuing false belief that the Cleveland children did not experience sexual abuse and that the crisis was a result of over-zealous and incompetent practice.

I was dismayed to learn that I too had internalised those two false narratives, of no abuse and professional incompetence, if slightly reassured that they were shared by none other than the President.

Back to Basics – what was the Cleveland Inquiry?

Campbell invited me to consider this. I agreed it was important. So back to basics. Sadly the Cleveland Inquiry report is not available on line. The best I could find was a useful summary published by the British Medical Journal 190.full.pdf

The report of Lord Justice Butler-Sloss on her inquiry into child abuse in Cleveland was published on 6 July (HMSO, Cm412).It was initiated in July 1987 following a ‘crisis’ where 125 children were diagnosed as having been sexually abused, thus overwhelming local police, hospitals and children’s services. 98 children were eventually returned home and 27 wardship cases were dismissed.

In June 1986 Susan Richardson had been appointed to the new post of ‘child abuse consultant’ in Cleveland. In January 1987 Dr Higgs began working there as a consultant paediatrician and the two began working closely together.

In early 1987 Dr Higgs found 10 out of 11 children who had lived in one foster placement showed signs of anal abuse and were admitted to hospital.  The director of social services Mr Bishop became concerned at the scale of this development. By the end of April a rift developed between Dr Higgs and the police, who did not agree with her diagnoses. The police expressed particular scepticism about the value of reflex anal dilation [RAD] as a diagnostic sign. Mrs Richardson continued to support Dr Higgs and by June ‘unprecedented numbers’ of children had been admitted to hospital under ‘place of safety orders’.

The police and social workers continued to diverge in their approach; the police expressing caution and requiring substantial corroboration, Mrs Richardson requiring routine place of safety orders and suspension of parental contact with the children in case they interfered with the children’s ‘disclosure’.

By June two further waves of admission stretched ‘accommodation and nursing services to breaking point’, parents formed a protest group and media attention ensued. As Anna Glinski the Deputy Director of the Child Sexual Abuse Centre described it Setting the story straight on Cleveland  | CSA Centre

A public outcry followed, involving local politicians, local and national media, parents, and professionals from different agencies with safeguarding responsibilities, who could not accept that so many children had been sexually abused. The result was local and national hysteria and panic that over-zealous practitioners were wrongly identifying child sexual abuse. Then the professional judgement of those working with the children was challenged.

The Cleveland report itself did NOT make any findings as to whether the children were in fact abused. It focused on procedures, acknowledging the dedication and commitment of Dr Higgs and Mrs Richardson. But various pressures led to a breakdown in communication between agencies and one of the most worrying features of what went wrong was the ‘isolation and lack of support for parents’

Dr Higgs was found to have placed undue reliance on physical signs alone of sexual abuse, in particular the RAD test and too fixed in her belief that children should be separated from their parents to permit ‘disclosure’. The BMJ described it as ‘her relentless pursuit of her goals, which never seemed to be interrupted by a pause for thought, caused unnecessary distress to children and their families’.

Lady Butler Sloss spoke to Campbell 30 years later; her view was that the doctors had ‘jumped the gun’, which destroyed the credibility of other evidence and led to premature removal of the children.

In essence, this was about disagreements and failure of communication of adults in different departments which had been allowed to obscure the needs of children. The interagency ‘squabbles’ become increasingly personal, not assisted by the bias of some of the media coverage.

One criticism of Dr Higgs was that she failed to recognise the inadequacy of resources in Cleveland to meet the crisis. This is troubling. Of course, we cannot ignore the reality of lack of resources, but this reality should not influence the outcome of an assessment of whether or not a child has suffered or is at risk of suffering harm.

The inquiry was set up to look at processes and could not evaluate the accuracy of ‘diagnostic techniques’ in sexual abuse of children. However, only 18 of the 121 children were ‘diagnosed’ on the basis of anal dilation alone. Nor did the inquiry discredit it as a technique. 27 out of the 29 experts who gave evidence considered RAD to be relevant to the recognition of sexual abuse. It was abnormal and suspicious, requiring further investigation but is not in itself evidence of anal abuse. Constipation could also be a cause.

Of the recommendations made by the Inquiry, the BMJ considered the most important

  • the requirement to recognise the child is a person not simply an object of concern and adults should explain to children what is happening and not make promises that can’t be kept.
  • Children should not be subject to repeated examinations or confrontational ‘disclosure’ interviews for evidential purposes.
  • No one person or agency should make a decision in isolation as to whether a child has been sexually abused. 
  • The speed and level of any intervention planned should be considered very carefully.
  • The medical ‘diagnosis’ should not be the prime consideration except in straightforward cases.

I agree with all of that. It was true in 1987, it is true and vital in 2024. So where are we now?

The legacy of Cleveland

Campbell has done important work investigating the National Archives to uncover information that shows between 70-90% of the 121 cases, the ‘diagnosis’ of sexual abuse was correct (see Treasury Official R.B. Saunders memo to Chief Secretary John Major 5 July 1988). The figure of 98 children who went home given at the time did not clarify how many abusers had been removed from the home prior to return

However, Campbell also discovered documents recognising that identifying the correct numbers of children abused was ‘dangerous territory’ as it could result in demands for more money and resources. This is shocking. Campbell’s over arching narrative is that this desire to save money rather than children has infected safeguarding practice ever since.

Anna Glinski on reviewing Campbell’s book, notes 3 ‘myths’ that she is concerned Cleveland cemented

  • children commonly make false allegations
  • children can easily be ‘led’ by professionals and
  • that sexual abuse by a family member is rare.

As a family practitioner who stared her law degree in September 1989 I have grown up in the shadow of Cleveland – and the Orkneys which followed. I accept I had internalised a false belief that most of the children at Cleveland had not been sexually abused and the doctors had been incompetent.

I accept that far more children are sexually abused that services identify, or that we would like to think. Scale & nature of abuse | CSA Centre . It has taken us a long time to accept that children were physically abused in their homes, recognition of sexual abuse has lagged even further behind.

I accept that children at risk of harm do not the resources they need and this has been obvious in the lack of residential care and mental health provision for decades. It is scandalous that the contemporaneous discussions about funding showed a deliberate plan to direct attention away from sexual abuse of children.

However, I do not think it is correct or helpful to extrapolate from this the assertion that the Cleveland Inquiry created enduring ‘myths’ about false/exaggerated allegations and the suggestibility of children that has ‘stunted’ child protection for decades. Far from it. I see very worrying evidence about the growth of various lobby groups who would appear to wish to do away with any forensic process entirely once an allegation of abuse is made.

I cannot usefully comment on the rate of ‘false allegations’ as deliberate lies told by older children, other than to say that has been rare in my practice over 30 years, no more than a handful of cases.

However, the suggestibility of young children is well established along with the ‘impossible’ allegations younger children make. As examples from my own practice, the little girl aged 3 who was confident that the police officer interviewing her lived under her bed, or the little boy aged 5 who asserted his father dressed up as a wolf and stabbed his bottom with scissors, in the absence of any medical evidence at all.  I am afraid that ABE interviews (Achieving Best Evidence) continue to be of poor quality and often opportunities lost.

Campbell dismisses any suggestion that children lie, fantasise or that their evidence can be contaminated as ‘fables’ and that to allege parental alienating behaviours is simply ‘playing a card’. My 30 years as a family lawyer shows me beyond doubt that parents – mothers and fathers – can act deliberately to influence children against the other parent. In my experience children say things that are not true and they can be influenced to say them.

Campbell rather skates over the US ‘Satanic Panic’ of the 1980s, which in my view highlighted most alarmingly the dangers of exposing suggestible children to over zealous investigators. She mentions the McMartin day care case and its ‘alarming’ medical signs of gross abuse. But I am not sure what medical evidence Campbell is relying on; I note that in 1986 the Attorney General dropped charges against five of the defendants, saying the case was ‘incredibly weak’. No convictions ensued of the remaining defendants.

Margaret Kelly Michaels of the Wee Free Day Care is not mentioned by Campbell. She was sentenced to 47 years in 1988 but freed after 5, the New Jersey Supreme Court declaring that the interviews of the children which convicted her, were highly improper and utilised coercive and suggestive methods.

Campbell considers the ‘Satanic Panic’ cases are credible, and the children might be reporting ‘real events’ as we can see from David Aaronovitch’s response SATANIC ABUSE: A REPLY TO BELIEVERS – BarristerBlogger to her complaint about his reporting on the ‘Hampstead Hoax’ case of P and Q (Children: Care Proceedings: Fact Finding) [2015] EWFC 26 (Fam) High Court Judgment Template where two children were physically abused by their mother’s boyfriend  to make fantastical allegations that babies were being murdered and eaten by local parents and teachers in some sort of Satanic abuse ring.

Campbell makes no mention of this case in her book, possibly because it is such a clear example of how children can be induced to say things that are not true and that goes against her hypothesis that such an assertion is a myth or a fable. Of course the P and Q case is a very extreme example. Most children are not tortured into making fantastic and false allegations. Most cases will be far more mundane and messy that this. I accept that children often find it very difficult to talk about being sexually abused, and for young children it is particularly difficult. But that is not a reason to assume that sexual abuse must be happening and to subject a child to repeated interviews, to say what the interviewer wants to hear. This kind of practice was rightly criticised in the Cleveland inquiry and again in the Orkneys investigations that followed.

Far from Cleveland acting as a deterrent to accepting sexual abuse, it is clear that a strong lobby group has been established over the last few decades which asserts that sexual abuse is rife and that the family courts routinely fail female victims, particularly blaming mothers who raise allegations against fathers as practicing ‘parental alienation’. Social workers still appear to be trained to  ‘believe’ the child and it has proved impossible to dislodge the word ‘disclosure’ from professional reports. For example, in one case I cross examined a social worker who had questioned 2 children about the same event and got 2 very different answers. Which child did she believe? Silence.

We know that when bizarre comments or compromised interviews are then filtered through a parent or professional who is keen to prioritise one narrative over another, the consequences for a fair hearing and hence uncovering anything like the truth, are obvious and severe. The Henriques report into Operation Midland and the fantasies of Carl Beech, demonstrated the catastrophe that can follow when fantasy is accepted at the outset without any kind of sceptical curiosity.

Conclusions

I understood the key finding of the Cleveland Inquiry to be not that the doctors or social workers were stupid and that children are liars, but rather that abuse is NOT a single agency or individual determination. That is as true now as it ever was. Doctors cannot ‘diagnose’ sexual abuse, it is not an illness. Rather they report and interpret clinical signs and give clinical opinions. Signs may ‘indicate’ or ‘suggest’ but can rarely provide a definitive answer alone. ‘Normal’ is the expected finding on examination in cases of abuse and non abuse, as normal examination is found in the majority of child sex abuse cases, even where the perpetrator has confessed. Multi agency working is essential and after Cleveland most suspected abuse cases were referred to community paediatricians in multi disciplinary teams. ‘

Campbell asked Bulter Sloss, 30 years on – what did she think professionals should do about the crux of Cleveland’s crisis: strong physical signs but little or no narrative? ‘She was candid: ‘I don’t know’. As with so much in the family justice system, we are faced with the ‘least worst option’. The family justice system puts proof of facts at it heart. We avoid the use of the word ‘disclosure’ as it means the ‘secret fact made known’. We refer to allegations because it is not the job of the lawyers, police or social workers to declare the ‘truth’ – that can only be the job of the criminal or family court.

As lawyers we owe first allegiance to the forensic process. We are not counsellors, psychologists or support workers. We work on the basis of what we can and cannot prove. And the key lessons from Cleveland remain important, most fundamentally that children are not just objects of concern but actual people who deserve protection and explanation. I appreciate that this call for recognition of children as human rings hollow in the light of what Campbell has uncovered about the financial motivations to cover up widespread abuse. That is a shameful failure. But I do not accept it is proof of continuing deliberate policy to deny the existence of sexual abuse of children. If anything, my professional practice causes me great concern that many would like to jettison any kind of forensic process entirely the moment an allegation of sexual abuse is raised.

Campbell argues that the medical scrutiny of children’s bodies is never neutral, it is always political. I agree with that up to a point. It is clear to me that issues of violence and abuse in the family justice system are often filtered through a particular ideological lens; either the family justice system is a tool of misogynistic oppression or it is rabidly anti fathers. A plague on both their houses. All I can do is stand firm in support of the rule of law, due process and evidence. Campbell states that this position is indicative of ‘hauteur’ or even ‘contempt’ as I present myself among the ‘objective, disinterested observers of other professionals causing havoc…’ I don’t accept that observation. Any one who begins an investigative process laden with any kind of ideological baggage or from any other starting point than ‘listen and take seriously’, risks corruption, failure and children left unprotected or further traumatised by inept procedures.

But I do accept to do justice to those principles of law, we need a child protection system that is fit for purpose. And that comes back round again to money. That the Cleveland Inquiry was used to promote a false narrative about the prevalence of child sexual abuse is shocking and I am grateful to Campbell for bringing that message very firmly home and correcting my false beliefs.

But the love of and the necessity of money cuts both ways. Many have built professional reputations and livelihoods on their ideological commitment to particular causes and effects of abuse and the funding they can attract. I note that shortly after the McMartin investigations began in the US, the budget of the National Center on Child Abuse and Neglect (NCCAN) increased from $1.8 million to $7.2 million between 1983 and 1984, increasing to $15 million in 1985. Only $5 million was directed towards physical abuse and neglect.

It is neither ‘hauteur’ nor ‘contempt’ to demand fair and rigorous investigation into child abuse and to counsel caution against those with an ideological drum to beat.  It is essential. And I don’t think it’s the legacy of the Cleveland Inquiry which is the biggest – or even any – part of the problems we face today. Failure to investigate issues of child abuse properly or at all is not explained, in my view, by some sort of ideological denial cemented by the Cleveland Inquiry, but rather the far less sexy but even more dangerous lack of resources, overwhelming case loads, the sheer scale of child poverty and the lack of effective early intervention for families.  

Campbell, B Secrets and Silence: Uncovering the Legacy of the Cleveland Child Sexual Abuse Case

Further reading

Child Safeguarding Practice Review Panel Nov 2024 The Child Safeguarding Practice Review Panel – I wanted them all to notice

Explores the specific challenges which feature in the identification, assessment, and response to child sexual abuse within the family environment.

“The report reveals that safeguarding agencies were not equipped with the skills and support to listen, hear and protect these children from horrific abuse. It recommends the government urgently puts in place a national action plan to protect and support children at risk

The Independent Review looked at 136 child safeguarding incidents – the most serious cases of abuse and neglect – and found over 75% of the children sexually abused by a family member were under the age of 12.

The report reveals a system in which children are all too often ignored or disbelieved, do not receive the protection they need and in which the risk posed by adults within the family is frequently misunderstood or minimised.  Importantly practitioners from all agencies lack the support, confidence and guidance required to intervene effectively to help and protect children.

Over a third of incidents featured a family member with a known history of sexual offending or who was known to present some risk of sexual harm. This included convicted sex offenders and family members who had been previously prosecuted for sexual abuse, including rape, moving into a home with young children without a strong risk assessment.

In order to combat this, the Child Safeguarding Practice Review Panel is urging the government to develop a national action plan which should include:

    • Reviewing and updating initial training, early career and ongoing professional development and supervision, so that practitioners can fulfil their roles and responsibilities in identifying and responding to child sexual abuse.
    • Ensuring that criminal justice and safeguarding agencies work together so there is robust assessment and management of people who present a risk of sexual harm and who have contact with children.
    • Implementing a national pathway which provides a clear process to support practitioners from when concerns are first identified through to investigation, assessment and the provision of help.
    • Instructing inspectorates to undertake a “Joint Targeted Area Inspection” focussing on multi-agency responses to child sexual abuse in the family environment.

Thousands more children’s social workers needed over next 10 years – new LGA research | Local Government Association Press release Nov 2024

Consent to medical transition at 16 – where are we now?

As evidence of just how ubiquitous the issue of child medical transition has become, we had the benefit of two reported cases very shortly after the publication of the Cass Review final report in April 2024. These were Re J (Transgender: Puberty Blocker and Hormone Replacement Therapy) [2024] EWHC 922 (Fam) and O v P and Q [2024] EWHC 1077 (Fam) where I represented the applicant mother.

I will consider each case in turn and then offer some thoughts on how matters are likely to develop.

The Facts

The facts of each case were broadly similar – both involved a female child aged 16 at the time of the hearing, who wished to continue or begin taking testosterone as part of a ‘transition’ to being perceived as male. Both involved one parent who agreed with the treatment and one who resisted. Both cases were concerned with what should happen when a child over 16 wanted to get private treatment, recognising the impact of NHS waiting lists and serious concerns about private providers such as Gender GP.

The law applied to both cases was uncontroversial. Children who are under 16 can consent to medical treatment without their parents if they are assessed to be ‘Gillick competent’ and understand the nature of the treatment proposed and its risks and benefits – see Gillick v West Norfolk and Wisbech AHA [1986] AC 112. If a child isn’t Gillick competent then the parent provides consent.

Children who are over 16 benefit from a statutory presumption of capacity to consent as if an adult, pursuant to section 8 of the Family Law Reform Act 1969

The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.

Two factors can operate to override that capacity. First, if s 2(1) of the Mental Capacity Act 2005 applies and the child is found to lack capacity to make a decision because of an impairment of or disturbance in functioning of the mind or brain.

Second, the court retains an ‘inherent jurisdiction’ to override the wishes of any child up until the age of 18, if to do so is in the child’s best interests and will prevent significant harm. As was noted by Judd J in O v P the cases where the courts have acted to override a child’s consent have involved a child refusing treatment which was considered life saving, such as blood transfusions. There is no reported case of a court intervening to stop a child having treatment that was offered by a doctor and wanted by the child.

It is a matter of significance to ask the court to put medical transition into a ‘special category’ of treatment which required continued court oversight. The courts have, rightly, to be very wary of ‘treading on the toes’ of either clinicians or Parliament and many previous authorities have given stern warnings about the court dealing only with decisions that were necessary, and not straying into broader ethical dilemmas or medical issues which were better left to MPs or clinicians. Neither court was willing to make decisions confirming that medical transition should be a ‘special category’ of treatment that required continued court oversight. But both contain some helpful – and alarming – commentary on the state of childhood medical transition.

The decision in re J

In January 2023 when only 15, J started taking testosterone to ‘transition’ from female to male. This stopped in August 2023 when the matter came to court, J’s father being very concerned at the implications of this treatment, which was provided by ‘Gender GP’. This outfit was, until the registration of Gender Plus in January 2024, the only private provider of hormones in the UK.

All parties then agreed that she could undergo a six month assessment with Gender Plus and the court therefore did not need to make any decisions on the substantive issues around capacity and consent, but would rather ‘take stock of the issues and evidence to date (para 4) and provide some guidance arising out of what had been learned during these proceedings. The court explicitly did NOT consider the Cass Review as it had not been available at the time of the court hearing in February 2024.

The position regarding J was complicated by her diagnoses of autism and anorexia, and detention under the Mental Health Act 1983 for 9 months in 2021. J was then ‘appraised’ by Gender GP over 2 months in October 2022 but this involved direct communication with only an unregistered counsellor (para 12). J’s father was so concerned he made application to the court in April 2023 to ask the court to examine the propriety of treatment that was being given to J by an unregulated internet provider, which thus operates without the protections of care offered through specially commissioned NHS services.

The father did not believe J was able to consent to this and it could not be in her best interests, having regard to the serious, lifelong and irreversible nature of the treatment and J’s underlying mental health difficulties.

The father also wanted general declarations that if any one disputed the child’s capacity, diagnosis of gender dysphoria or the proposed treatment, the matter had to come back to court, even if the child was over 16. Further that no medical treatment for transition should be permitted outside the NHS unless approved by the court.

The court did not however need to determine this, as the parties had all agreed that J would no longer be seen by Gender GP.

What the court noted about Gender GP is horrifying. The court notes at para 33 that J’s only interaction with a ‘professional’ before being prescribed testosterone at 15 was with a person who has a diploma in counselling. There was no medical examination or blood testing. The court was unable to find a endocrinologist in the UK willing to assist the court as an expert witness but Dr Hewitt from Melbourne was eventually instructed. She was extremely critical of Gender GP (para 37) noting there was no skeletal bone age X ray and bone densitometry investigation, the psychological assessment was of ‘extremely poor quality’ and there is no record of counselling regarding the known risks of hormone treatment. But the most serious criticism related to the dose of testosterone provided = 100mg/4ml every 6 weeks (para 38). This was the level that would be administered to an adult only after a course of treatment starting at a much lower level.

Dr Hewitt advised ‘with confidence’ that ‘there is no professional society of paediatric endocrinologists internationally who would consider this anything other than a highly abnormal and frankly negligent approach’. She stated that ‘in Australia, the treatment provided by Gender GP would be unlawful’.

Dr Hewitt was concerned that J was at risk of ‘sudden death’ due to thromboembolic disease, a thickening of the blood. A haematologist Dr Keenan advised that J’s blood test results were ‘effectively normal’ – but he compared her to an adult male, rather than considering her as a teenage girl. Dr Hewitt considered the dose of testosterone given the J as ‘massive’ and it could impact on the development of J’s bones and cause her to stop growing.

Dr Eyre a child and adolescent psychiatrist, diagnosed J with gender dysphoria and did not find that J lacked the ability to consent to the treatment and the testosterone treatment had had a positive impact in building J’s confidence and reducing anxiety.

The reality, as accepted by the court is that there is no realistic prospect of treatment on the NHS for J, given the long waiting lists. The parties therefore agreed that J should begin a six month assessment with Gender Plus.

At para 53 the court set out its approach

The approach that I propose to take, which is in line with that taken at all earlier stages in these proceedings, is to limit the court’s involvement in terms of decision making to that which is currently necessary. The law, and the approach of the courts, with respect to issues arising in cases of gender dysphoria is still very much in the process of development. In the absence of intervention by Parliament, the court should be careful to move forward on a case by case, decision by decision, basis so that the approach under the common law is developed incrementally as may be required, rather than by judicial diktat.

The court wished to go no further, particularly given the need to consider the Cass Review but was careful to note that if any approach was made to Gender GP this would raise ‘significant concern’ and the court would expect a detailed account of its proposed course of assessment and treatment. The court concluded at para 58 by saying Whilst further evidence may, of course, alleviate the concerns that I have described, on the experience in these proceedings thus far, I would urge any other court faced with a case involving Gender GP to proceed with extreme caution before exercising any power to approve or endorse treatment that that clinic may prescribe

The Case of Q

This involved a female child, ‘Q’ who had socially transitioned to be perceived as male. Her father supported medical transition, the mother objected and applied to court. Only a few days before the hearing started, the final report of the Cass Review was published. This set out the need for ‘extreme caution’ before prescribing hormones to any child and recommended that a separate multi disciplinary team review any decision made to prescribe. The NHS immediately adopted this recommendation. It was clear that no private provider would be able to meet this requirement.

Gender Plus was registered by the CQC to provide hormones in January 2024, prior to the Cass Review. The mother’s case therefore shifted to asking the court to look carefully at the protection offered to children in general seeking private provision of hormones and to consider making a general declaration that any hormone treatment outside the NHS should be subject to court oversight as a ‘special category’ of treatment. The mother asserted that it was simply not possible for Q to give informed consent to a treatment which was confirmed by the Cass Review to have no compelling evidence base for either its safety or efficacy, but offered potential long term serious and irreversible consequences.

The court declined the mother’s request, echoing the concerns set out by the President in re J that the court must be particularly cautious in such a novel and sensitive area such as this not to lay down the law beyond which is necessary to determine any current dispute. To do so would to risk impermissible trespassing on the role of Parliament. As the mother did not object to a six month assessment by Gender Plus, the court decided that the proceedings must come to an end and declined to offer any further oversight, in the event that Q was prescribed hormones by Gender Plus. Q was noted to be ‘well informed’ and willing to undergo the Gender Plus assessment process.

However, it is notable that the court found the mother’s concerns about medical transition ‘well founded’ and she was not to be criticised for objecting and bringing the matter to court – indeed that her efforts had ensured that her daughter had not been prescribed puberty blockers, which might well be something Q was grateful for in the future.

The mother asked permission to appeal and this was refused. The mother will seek permission from the Court of Appeal, to raise concerns that the court did not properly consider how section 8 of the FLRA 1969 should be interpreted given what we now know about the maturation of the adolescent brain.

Commentary

It is disappointing to note that ‘assigned at birth’ now seems firmly embedded in the vocabulary of the courts as we can see in the ‘definitions’ offered in re J at para 14. Those with more sex realist views will note that sex is observed and recorded and nobody is assigning any ‘gender’ to a new born baby. Re J does at least refer to ‘cross sex hormones’ which it appears is not the approved nomenclature, being ‘gender affirming hormones’ – a bit like ‘top surgery’, an affirming and hence obfuscatory term.

It is very alarming that in both cases not a single UK expert endocrinologist could be found to assist the court; underscoring the extreme toxicity and polarity of the ‘debate’ around childhood medical transition which found Dr Cass advised not to travel on public transport after the final review came out.

In both cases, both judges firmly rejected any suggestion that the court should treat medical transition as a ‘special category ‘ of treatment which would require continued court oversight if treatment was sought outside NHS protocols. It is right that courts must tread carefully if entering an arena more suited to Parliamentary or regulatory control – but the court retains an ancient jurisdiction to protect children and at the moment it appears to me there is a risk that in the current situation, children are left without sufficient protection. But the sad reality is that NHS treatment with its more secure safeguards as recommended by Cass, is unlikely to be a viable option for those children who are likely to spend many years on a waiting list.

But how confident can we be that a child going to Gender Plus will receive an effective assessment, knowing as we do that Gender Plus is staffed entirely by those previously employed by the Tavistock whose commitment to ‘affirmation’ is not in doubt?  Regardless of the robustness of its assessments, Gender Plus cannot (as was recognised by the court in O v P) offer the additional layer of protection required by Cass though a separate multi disciplinary review of any decision to prescribe.

However, both cases made it very clear that Gender GP are not safe, and it seems to be very likely that a court would be willing to exercise the inherent jurisdiction to protect a child from their interventions.

It will be interesting to see what happens with the mother’s attempt to appeal in O v P, along with the proposed judicial review of the decision to register Gender Plus by the CQC – if that succeeds there will be no private provider available for children in the UK. This may well lead to children being driven to even more dangerous black market providers and undergoing ‘DIY’ transition.

We do urgently need the Government to make good, as soon as possible on its proposals to deal firmly with those who profit at the expense of childhood distress and to ensure that resources are directed to enable the NHS to help those children who need it. The tension between paternalism and autonomy which exists in almost all cases about children, has potentially very significant consequences in this area.

Findings of Fact in Domestic Abuse Cases

Where are we now?

General principles for all finding of fact hearings

  1. The burden of proof rests with the party making the allegations.
  2. The facts must be proved on the balance of probabilities. Common-sense, not law, requires that in deciding this question, regard should be had to whatever extent is appropriate to inherent probabilities – Re B [2008] UKHL 35.
  3. Findings of fact must be based on evidence, which can include inferences that can properly be drawn from the evidence, but not on suspicion or speculation  – Re A (A Child) (Fact-finding hearing: Speculation) [2011] EWCA Civ 12.
  4. FPR 22.1 The court may control the evidence by giving directions as to – (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the court.
  5. Any evidence to be admissible must be relevant, i.e. if it is logically probative or disapprobative of some matter which requires proof. The Judge must then decide, if relevant, should the evidence be admitted. The strength of the argument for admittance will always depend on the Judge’s assessment of its significance – O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, cited with approval in F v M [2021].
  6. Hearsay evidence is admissible in proceedings relating to children – Re A (A Child) [2015] EWFC 11). When estimating the weight to be given to hearsay evidence, the court must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. In addition, the court has to consider hearsay evidence anxiously and carefully –  R v B County Council, ex parte P [1991] 2 All ER 65.
  7. The court is not bound by the cases put forward by the parties but may adopt an alternative solution of its own – Re S (A Child) [2015] UKSC 20. The court must ensure that any additional or different findings made are securely founded in the evidence: and that the fairness of the fact-finding process is not compromised – Re G and B (Fact finding Hearing) [2009] EWCA Civ 10).

Particular issues in cases of domestic abuse

  1. The need to identify and decide upon issues of domestic abuse is important in family proceedings. The court must consider the impact of the abuse on both the child and parent and determine what orders are to be made for the future protection and welfare of both. – Re H-N and Others (children) (domestic abuse: findings of fact hearings) [2012] EWCA Civ 448 para 4.
  2. It is accepted by the Court of Appeal in Re H-N, that greater prominence needs to be given to consideration of abusive behaviour in the family courts. Judges should consider para 60 of Statutory Guidance published by the Home Officer pursuant to section 77(1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. –see further F v M [2021] EWFC 4.
  3. Domestic abuse is not restricted to physical violence and visible injuries or consideration of separate incidents. PD12 J recognises coercive and controlling behaviour, defined as follows:
    • Coercive behaviour is defined as ‘an act or a pattern of acts of assaults, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten the victim. (note comment in F v M that reference to ‘an act’ is misleading; what is required is a pattern of behaviour
    • Controlling behaviour is defined as an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour’.
  5. Key to both behaviours is an appreciation of a ‘pattern’ or a ‘series of acts’ F v M [2021] EWFC 4 para 4. Such behaviour is dangerous as it seeks to undermine the autonomy of the victim.
  6. Examples of the ‘paradigm strategies’ referred to above were set out in F v M from para 60. This is not an exhaustive list but rather a ‘check list’ to prompt questioning and inquiry about ‘that which might, in isolation, appear innocuous or insignificant may in the context of a wider evidential picture be more accurately understood’ – para 61.
    • Isolation from friends and family
    • Deprivation of basic needs
    • Monitoring time
    • Monitoring via online communication tools/spyware
    • Taking control over aspects of everyday life
    • Depriving access to support
    • Denigration
    • Enforcing activities that humiliate, degrade or dehumanise.
    • Forcing participation in criminal activity
    • Financial abuse
    • Controlling access to school/study
    • Taking wages, benefits or allowances
    • Threats to hurt or kill.
    • Threats to harm a child.
    • Threats to reveal or publish private information.
    • Assault
  8. F v M [2021] also referred to section 76 Serious Crime Act 2015, to assist a broader understanding of the behaviours. – para 105. It must be repeated, have a serious effect on the victim and the perpetrator knows or ought to know the behaviour will have this effect.
  9. The Court of Appeal in re H-N identified the ways in which an abusive pattern of behaviour can harm a child – para 31.
    • Is directed against or witnessed by the child.Causes the victim of abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child.Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child
    • Risks inculcating, particularly in boys, a set of values which involve treating women as inferior to men.
  11. Even if there is no longer any future risk of assault, does not mean that a pattern of coercive and controlling behaviour will not manifest itself in some other albeit more subtle manner to cause further harm – re H-N para 52.

The approach of the court

  1. PD12J does not establish a ‘free standing jurisdiction’ to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court – Re H-N para 58a). The court must focus on the over-arching issue of coercive and controlling behaviour in the context only that it is relevant and necessary to determine issues as to a child’s future welfare – Re K [2022] EWCA Civ 468 para 63.
  2. Therefore, a fact finding hearing should be considered ‘necessary’ to provide a factual basis for a welfare report or assessment, a basis for an accurate assessment of risk and/or the making of child arrangement orders or to consider the need for a domestic abuse related activity.
  3. A finding of fact hearing is a ‘major judicial determination’ which will inevitably introduce delay – Re K [2022] para 42 and the court should consider the possibility of non-court dispute resolution at the FHDRA – Re K para-40
  4. The real evil of coercive and controlling behaviour is its corrosive impact on the victim’s autonomy. Not all ‘directive, assertive, stubborn or selfish’ behaviour will qualify. Where the behaviour does not have the character of being degrading or dehumanising. or ‘designed to make a person subordinate’ it is likely to be ‘unnecessary and disproportionate’ for detailed findings of fact to be made. ‘It will not be in the interests of the child or of justice for the court to allow itself to become another battle ground for adult conflict’ – Re L (Relocation: Second Appeal) 2017 EWCA Civ 2121 para 61 (endorsed by Re H-N para 32).
  5. It is therefore of critical importance to identify at an early stage the real issue in the case in particular with regard to the welfare of the child [PD12J 14] before a court is able to assess if a fact-finding hearing is necessary and what form it should take – Re H-N para 8.
  6. Where coercive or controlling behaviour is alleged, that assertion should be the primary issue for determination. Any other specific factual allegations should be pursued because of their potential probative value to the alleged behaviour, unless the factual allegation is so serious that it justifies determination regardless – a likely example being an allegation of rape – Re H-N para-59
  7. PD 12 J sets out a step-by-step template that courts must follow in these cases and underpins that the court should in many cases focus on a pattern of behaviour, rather than individual incidents – Re H-N para 25.  PD12 J remains ‘fit for purpose’ and properly reflects modern understanding of domestic abuse – Re H-N para 28.
  8. The Court of Appeal in re H-N para 37 summarised the proper approach of the court as follows:
    1. Consider the nature of the allegations and the extent they are likely to be relevant in deciding to make a CAO.
    1. Have in mind PD12J.16, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child.
    1. PD12J.17 the court must consider if a separate fact finding is necessary and proportionate, considering the overriding objective FPR 1.1 and the President’s Guidance of June 2020 – ‘Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence and oral submissions to be cut down only to that which it is necessary for the court to hear’. Is there other evidence available to provide a sufficient factual basis to proceed?
  9. The court must isolate what ‘may sometimes seem to be relatively innocuous incidents and locating them in a context which illuminates their greater significance’ F v M [2021] para 100.
  10. It would benefit the court and parties for Cafcass to be involved prior to any decision as to whether a finding of fact is necessary – Re H-N para 38 and consideration ought to be given to more substantive Cafcass work beyond the safeguarding letter.
  11. Judicial continuity is important, to enhance the efficient and sympathetic management of the process – para 6 vi Re B-B (Domestic Abuse: Fact Finding) [2022]

How are allegations to be presented to and considered by the court?

Presentation of the evidence

  • Evidence needs to be organised and structured so that everyone understands its significance – Re H-N para 41. This is important in terms of procedural fairness and simple efficiency. The Court of Appeal in Re H-N found force in the criticisms of limited ‘Scott schedules’, as this may reduce the focus of the court and deny the proper assessment of the alleged perpetrator’s behaviour as a whole and to what extent this forms a ‘pattern’.
  • However, the Court of Appeal was unable to offer a clear alternative to the use of schedules, suggesting that it may assist to adopt a ‘threshold document’ akin to public law proceedings which is supported by more detailed narrative statements. The Judge in F v M [2021] considered it inappropriate to attempt prescriptive guidance, but commented that this insidious type of abuse ‘may not easily be captured by the more formulaic discipline of a Scott Schedule’ – para 113. It will be for the court in each individual case to determine if such schedules are useful.
  • The court in Re B-B (Domestic Abuse: Fact Finding) [2022] EWHC 108 found it useful to consider the evidence relevant to each different kind of alleged domestic abuse in ‘clusters’. There was inevitably some overlap between the different ‘clusters’, but this built up a picture of the nature of the relationship under scrutiny and it was easier to see if patterns of behaviour emerged – para 6 i.
  • The court will be assisted by the parents being asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experienced of being in a relationship with each other (Re H-N para 58d).
  • The vulnerability of witnesses must be considered prior to the hearing in a ‘ground rules’ hearing and special measures considered as necessary. See Part 3A FPR – Vulnerable persons: participation in proceedings and giving evidence. A vulnerable person may not act in the same way as someone more independent and confident if they are abused or exploited in the relationship – M (A Child) [2021] EWHC 3225.

Weighing the evidence

  • The court must take into account all the evidence, considering each piece of evidence in the context of the other evidence, surveying a wide landscape, and must avoid compartmentalising evidence. The court must exercise an overview of the totality of the evidence in order to conclude whether the case put forward has been made out to the appropriate standard of proof  – see Re U, Re B (Serious Injury: Standard of Proof) [2004] EWCA Civ 567, W and F (Children) [2015] EWCA Civ 1300, Re E (A Child) [2016] EWCA Civ 473 and AS v TH [2016] EWHC 532 (Fam) MacDonald J).
  • In Re BR (Proof of Facts) [2015] EWFC 41 Peter Jackson J (as he then was) stated (paragraph 8): ‘Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility’.
  • . It is essential that the court forms a clear assessment of their credibility and reliability of the parents’ evidence. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them – Re W and another (non-accidental injury) [2003] FCR 346).
  • Any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so Re M (Children) [2013] EWCA Civ 1147. In cases of alleged sexual assault, since July 2020 Family Court judges who hear such cases must undertake training on the ‘serious sexual assault’ programme, which includes elements in respect to psychological reactions to sexual assault and trauma – re H-N para 67.
  • In private law cases, the court needs to be vigilant to the possibility that one or other parent may be seeking to gain an advantage in the battle against the other. This does not mean allegations are false, but it does increase the risk of misinterpretation, exaggeration or fabrication – Re B-B (Domestic Abuse: Fact Finding) [2022] para 26 ii.
  • Memory becomes fainter with every passing day and imagination becomes correspondingly more active. Therefore, contemporaneous documents are always of the utmost importance – A County Council v M and F [2012] 2 FLR 939.
  • A witness may tell lies during an investigation and the hearing for many reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything – R v Lucas [1982] QB 720, applied in family proceedings in Re H-C (Children) [2016] EWCA Civ 136)). 5 B116 23.
  • If the court determines that the Lucas direction is called for, or is invited to proceed on that basis, submissions should be made to identify (i) the deliberate lie(s) relied upon; (ii) the significant issue to which it/they relate(s); and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt – Re A, B, C (Children) [2021] EWCA Civ 451, Macur LJ.
  • The court in Re B-B (Domestic Abuse: Fact Finding) [2022] suggested the following approach at para 33:
    • First review the general credibility of the parties and their supporting witnesses
    • Then review the history of the relationship.
    • Look at broad categories of coercive/controlling behaviour.
    • Identify those individual allegations which require discrete determination.

Reliance on criminal law concepts

  • When considering domestic abuse, the alleged behaviour may be capable of prosecution in a criminal court, which has as its aim the punishment of offenders by the state and operates to a different and higher standard of proof. It is wrong for the Family Court to be drawn into analysis of factual evidence in proceedings relating to children which is based on criminal law principles and concepts – Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA 198 para 62, approved by Re H-N para 66.
  • The Family Court need not shy away from the use of the word ‘rape’ however is not required to decide if an offence has been proved to the criminal standard; the focus is on the abusive nature of the behaviour and the borderline between ‘consent’ and ‘submission’ is less significant –Re H-N para 71.
  • The court was asked to give further guidance in Re A and Another v B and Others [2022] and affirmed the position set on in Re H-N.
  • The court in Re A did however offer some further guidance.
    • The courts must consider carefully as to how a hearing is conducted regarding allegations of rape, in particular the scope of cross examination of an alleged victim with regards to their sexual history – Re H-N para 74.
    • There is no automatic bar on the admission of evidence about a party’s sexual history with third parties, but the court is likely to be slow to find it relevant and it will require a specific application.
    • However, evidence about the parties’ sexual relationships with one another is likely to be relevant; the court must be mindful of its obligation to consider the wide canvas of evidence and patterns of behaviour.
    • There is no need to make a specific application to the court in such circumstances, unless reliance is placed on intimate images.
  • With regard to the question as to how family court judges ought to deal with ‘rape myths/stereotypes’ the court in Re A was referred to the CPS Guidance Annex A ‘tackling rape myths and stereotypes’. The court agreed that it could assist a judge to have regard to such materials, including Chapter 6 of the Equal Treatment Bench Book July 2022. But the court declined to attempt a list of common myths/stereotypes, which risked creating a rigid framework.

 After the hearing

The court must produce a schedule of findings made or endorse that presented by counsel. See para 29 PD12J. This represents good practice and will help to illuminate a judge’s evaluation of the evidence and inform their ultimate findings

Useful authority discussing the correct approach to appealing a finding of fact T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475 (05 May 2023) (bailii.org)

Further resources

Some useful commentary on the recent CAFCASS guidance of October 2024 for cases involving allegations of domestic abuse New Cafcass Domestic Abuse Policy – lots of starting points, but where will we end up? / Pink Tape

Judicial guidance as to the operation of the Pathfinder pilot scheme in private law cases Child A and B, Re [2024] EWFC 284 (B) (11 October 2024) (bailii.org)

Parents seek an injunction to prevent child having gender affirming treatment

The court dismissed the parents’ applications, finding there was no evidence that EE at age 17 lacked capacity and no evidence that she sought imminent treatment. There was no ‘matter’ before the court to undertake an assessment of capacity. This case has provoked controversy about the extent to which any person who wants to remove healthy parts of their body can be said to have ‘capacity’ but the parents’ legal action appeared doomed at the outset on the basis of the evidence they presented and their obvious hostility to ‘LGBT’.

I use she/her pronouns for EE as she is female.

Judgment was handed down by Mr Justice MacDonald in September 2023 in the case of GK and LK v EE (formerly RK).

The facts

EE’s parents applied to court in June 2023 under the inherent jurisdiction and via the Court of Protection under the Mental Capacity Act 2005 (MCA) with regard to their 17 year old daughter, who turned 18 shortly after the judgment. EE self identifies as a non binary lesbian and at the time was in the care of the local authority via section 20 accommodation. The parents wanted to instruct experts to assess her capacity and asked for an injunction preventing EE from having any kind of gender affirming medical treatment, arguing that she lacked capacity to make decisions about this.

EE and the local authority told the court that the parents were driven by prejudice against EE’s gender identity and pointed out that EE had no current plans for any medical treatment. Therefore, the court had no ‘matter’ under the MCA to make any decision.

Further, there was no sufficient evidence to rebut the presumption that EE had capacity under section 1(2) of the MCA. EE’s GP records contained no diagnosis of mental illness. The parents claimed EE had been diagnosed with ‘schizoptypal disorder’ by a psychiatrist in country X, from which the family originated, moving to the UK when EE was three.

EE could not recall speaking to any foreign psychiatrist and had received no medication. She alleged that her parents had been physically and emotionally abusive to her, which they denied. But there were police records that in July 2022 EE was assaulted by her parents who ‘did not like’ that she was ‘LGBT’. She asserted that she had tried to talk to her parents about this since she was 11, but they were very hostile and she gave up aged around 13/14.

There was a child protection medical and EE was found to have non accidental injuries, but there was no mention of any mental health issue or personality disorder in any of the reports at the time. A child protection conference followed, the parents now asserted that EE was undergoing a psychotic episode. EE returned home in August on the basis that there would be no further physical or emotional abuse from her parents.

But EE then discussed with her parents the desire to have ‘top surgery’ i.e. a double mastectomy to remove her breasts. The parents asked her to postpone any decision until she was 25 and EE asserts that they became increasingly controlling, insisted she undergo online therapy and persistently made homophobic/transphobic comments. The local authority undertook a Child and Family Assessment, with no concerns for EE’s mental health. By November 2022 matters had seriously degenerated to the point that EE’s father attempted to restrain her and she hit him. EE then agreed to be accommodated by the local authority.

The parents were very unhappy with this situation and asserted that the local authority had referred EE to Mermaids and was encouraging her to take testosterone. EE had a further medical assessment in February 2023 which raised no concerns and recorded a significant improvement in EE’s mood and outlook since leaving home. She expressed gender dysphoria, but had no current plans to engage in medical treatment.

The parents argued that EE lacked capacity to make decisions about any such treatment and relied upon the Cass Review that social transition should not be seen as ‘neutral’. The parents asserted that the wider paternal family had a history of mental health issues, EE had self harmed, used a binder, abused alcohol and drugs and these issues along with others showed that EE was unable to retain, use and weigh relevant information relating to gender affirming treatment. Therefore experts were needed to assess her.

The law

EE was 17 at the relevant time but was very close to 18, when the court would cease to have jurisdiction under the inherent jurisdiction. Therefore, the judgment focused on the legal principles under the MCA. This Act allows the court to make decisions in the best interests of those aged over 16 years, if they are found to lack capacity to make their own decisions. Section 1 of the MCA sets out its key principles – a person is assumed to have capacity, and cannot lack capacity just because he makes an unwise decision.

EE could only lack capacity if her inability to make decisions was due to ‘an impairment of, or a disturbance in the functioning of, the mind or brain‘ and due to this she could not understand information relevant to the decision, retain the information, use or weigh the information, or communicate her decision. Capacity is assessed in relation to the specific decision at the time the decision needs to be made.

Therefore the court couldn’t make any decisions under the MCA as there was no ‘matter’ to be decided; EE had no current plans for any gender affirming treatment. Even if there had been a ‘matter’ before the court, not only does the MCA presume capacity, EE had ‘legal capacity’ under section 8 of the Family Law Reform Act 1969 which sets up a rebuttal presumption that 16 year olds can consent to medical treatment.

The court examined the interplay between the MCA, FLRA and ‘Gillick competence’ in para 48, approving the position that a child under 16 must be found ‘Gillick competent’ to provide consent to medical treatment. Once the child is 16, their legal capacity is assumed and their mental capacity is examined under the MCA. Thus, absent any evidence that EE lacked capacity, she could at 17 make a decision to have gender affirming treatment. There was no need for any expert evidence.

The court noted at para 60 the kind of evidence it would need to engage with the applications made by the parents

In the absence of any gender affirming treatment being proposed at
this time, the court does not have before it any evidence as to what such treatment involves, what the potential dangers and side effects of such treatment are, the nature and extent of the preparatory counselling with respect to the decision to have, and the consequences of, gender affirming medical treatment and any assessment of the treating clinicians of EE’s capacity to consent to such treatment.

Comment

The court did not make a finding that the parents considered EE mentally ill simply because of her stated sexuality and identification as ‘non binary’ but did comment at para 67 that the court was left with the ‘distinct impression’ that this was the case.

I agree that the evidence is sparse to suggest that gender affirming care has long term positive benefits. I agree it is sad to see EE assert (para 36)

I have thought about gender reassignment for many years, and it is
something that has always been on my mind. I feel quite strongly about this, and I am of the view that my real life would begin once I undergo Bilateral mastectomy, also known as top surgery.

If in fact her ‘real life’ does not begin after the removal of her breasts then of course it is too late to reverse the surgery. It does not seem likely that EE is able at 18 to confidently foresee how she would feel about the amputation of her breasts when she is 30, alongside her possible infertility if she begins taking testosterone.

Many who objected to this decision on social media appeared to share the parents’ views that simply to claim a ‘non binary’ identity or want to remove healthy breasts, was in and off itself evidence of ‘profound mental illness’ that rendered EE incapable of making any decisions about gender affirming care.

But it is not the court’s place to prohibit an entire regime of medical or surgical treatment without compelling evidence. The courts have to place trust and reliance in the medical profession to stick to its own code of conduct. If EE has capacity, and can find a willing surgeon, she has the freedom to make unwise choices. I do not see how the court could have made any other decision on the evidence and the law before it.

I understand that many people were unhappy with this decision, but any changes to the culture around ‘gender identity’ and affirmative treatment will have to come from Parliament and the medical profession. My hope is that the final report of the Cass Review will continue to support therapeutic interventions as first call. If parents do wish to assert that their children lack capacity to make decisions about gender affirming care, then they are going to need to bring hard evidence to the court proceedings, which these parents could not.

While I personally think it is very sad that a young woman would ever contemplate drastic and irreversible surgery so that her ‘real life’ could begin, the simple response is that it is not my life, nor my breasts. EE may well regret such surgery when she is older, but the MCA exists to protect the freedom to make unwise choices. If asked to choose between ‘freedom to’ and ‘freedom from’, I choose the first, every time. And I must extend that freedom to all others with capacity.