Other thoughts

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.

Can a local authority restrict a child’s use of a mobile phone?

I was recently asked to consider a case involving a 16 year old child in local authority care, following fears of child sexual exploitation. The local authority wanted to apply to the court for permission to put ‘spyware’ on the child’s mobile phone, in order to monitor any conversations the child was having with those who posed a risk of harm. The local authority made an application for permission under the inherent jurisdiction to deprive the child of liberty. The court raised a question mark about the appropriateness of this application – was it really a deprivation of liberty? 

The questions raised here have broader applicability to on going tension between ‘paternalism’ (protect the child from his foolish decisions ) or ‘autonomy’ (allow the child the freedom to make decisions). I find it interesting that there is such intense scrutiny of a child’s access to a mobile phone but rather less of a child’s assertion that they have ‘changed sex’ and want access to cross sex hormones. Children aged 16 and over pose particular problems in this debate, but it is one we must keep on having. 

The local authority wanted permission to restrict a 16 year old child’s access to the internet via a mobile phone or other device and in particular asked the court to give it permission to remove the phone and monitor the child’s access to the internet by installing ‘spyware’ that would log texts and messages. This was done with aim of protecting the child from further sexual exploitation and it was argued this was proportionate and necessary. The local authority suggested that these restrictions be in place for a relatively short period of time, and they could then be reviewed. 

I identified the following questions to the court

  • Is removal or monitoring of a child’s mobile phone a deprivation of liberty?
  • If it is, is it lawful? i.e. a proportionate and necessary response in the best interests of the child or does the child have capacity to consent and does consent?
  • If this isn’t a deprivation of liberty, is it rather a a breach of article 8 ECHR (right to privacy)
  • If so, is that breach lawful? 

If the proposed restrictions are neither a deprivation of liberty nor breach of article 8 ECHR, then the local authority does not require the authorisation of the court to exercise parental responsibility for the child. However, given the child’s age and the nature of the restrictions sought, it was sensible to put this matter before the court. 

Use of mobile phones by teenagers in local authority care

A survey from Ofcom in 2014 showed that in the UK, 88% of sixteen-to-twenty-four-year-olds owned a smartphone. It seems unlikely that this percentage has fallen in intervening years. The use of mobile phones with internet access is now commonplace and most teenagers will have and use one. Although there are obvious risks inherent in the use of mobile devices that can connect to the internet, such as making children more vulnerable to sexual exploitation, they can be a very useful tool to allow a child to maintain contact with friends and family. 

The Institute for Research and Innovation in Social Services noted

The use of mobile devices and the internet are a normal part of everyday life for children and young people, including those in care.

A balanced view of use of devices and the internet by children and young people in care is to appreciate both opportunities and risks associated with use.

There are a number of factors known to increase the vulnerability of children and young people online. However, in considering vulnerability online, this should be done holistically, taking account of a child or young person’s life in general at a given time, and with awareness of both protective and risk factors.

There is a need for practitioners to move towards a more expansive and child-centred approach with a focus on relationships. This should encompass an appreciation of stepfamily and biological family, and the maintenance of relationships with a wider variety of individuals that reflect the world of the child or young person in care.

As the child is subject to a care order, the local authority ‘shares’ PR with the parents and may override the parents’ wishes if it is ‘necessary’ to safeguard or promote the child’s welfare.  The parents in this case did not object to the proposals but the child was refusing to discuss the matter with social workers. However, parents cannot consent to their child’s deprivation of liberty. A child can, if they have capacity, but also that consent may be withdrawn.

For a child under 16 it is submitted that the removal of a mobile device, restriction on its use or monitoring of conversations on it, are likely to be well within the ‘zone of parental control’ and do not require the local authority to seek the court’s permission. The UK Council for Child Internet Safety (UKCCIS) is clear that parental controls on internet usage is accepted and necessary – such as requiring phones to be turned off at school or surrendered during the night. 

Some local authorities have set out advice for foster carers around removal/restriction of mobile phones which suggests that certainly for younger children, the local authority as corporate parent does not need to seek the court’s permission to exercise control over a child in care’s mobile phone use. For example, see the guidance from East Riding which considers the removal of a mobile phone as a decision of ‘last resort’ 

…  taken when other measures have failed. This decision should itself be reviewed regularly and the phone returned as soon as possible. Any decision to remove the mobile phone for a long period (more than a few days) should be endorsed by the Safeguarding/LAC/Pathway Team Manager, with confirmation for the reasons in writing to the young person and a copy to the carer.

Not only is removal of a mobile phone considered a serious matter, the older a child gets, the less likely it will be that this is a reasonable exercise of parental responsibility. The House of Lords in Gillick approved the following dictum of Lord Denning MR

… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

Once children reach 16, they are held by various statutes as able to make their own decisions across a range of issues. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”.

Therefore, it is important to consider what is the lawful basis for depriving or restricting a 16-year old’s access to a mobile phone or the internet. If this is outside the ‘zone of parental control’ then it is submitted that it is desirable for the local authority to seek authorisation from the court, rather than run a risk of being found to have unlawfully breached either Article 5 or Article 8 of the ECHR. 

Article 5 ECHR provides that everyone has a right to liberty and security. Distinguishing between a ‘deprivation’ of liberty and a mere restriction is one of ‘degree or intensity’ and not one of nature or substance. The question whether a person’s liberty is restricted is determined by comparing the extent of that person’s actual freedom with someone of similar age and situation whose freedom is not limited. All children should be subject to restraint upon their freedom to do as they wish, but these restraints necessarily decrease as the children grow. 

Many cases involving a deprivation of liberty involve restriction on physical movement, such as refusing to allow a person to leave premises without supervision. Such cases are governed by the three limbed test set out in Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96, para 71, and 74 emphasising physical confinement. 

However, deprivation of liberty is not restricted solely to limits set on physical movement. Lord Kerr in Cheshire West described ‘liberty’ as “the state or condition of being free from external constraint” 

The Mental Capacity Act (2005) Deprivation of Liberty Code of Practice states that denying social contacts constitutes restraint and therefore is a significant factor as to whether the care and treatment amounts to a deprivation of liberty. The importance of social contact for a child is reflected in article 37 of the UNCRC “…. every child deprived of liberty… shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”

In the case of HC (A Minor Deprivation of Liberty) [2018] EWHC 2961 (Fam) the court considered a variety of issues beyond mere physical confinement which had the cumulative effect of depriving a child of his liberty. For example, at para 40 the judge commented on the issues of ‘supervision, support and control’. 

Linked to the question of freedom of movement is the question of supervision.  A typical 13-year-old will certainly be supervised or controlled in certain formal or dangerous settings.  For example, at school, much of the time is supervised to a greater (e.g., in the classroom) or lesser (e.g., during break-time) extent, and a risky sport or activity will generally be conducted under close adult supervision.
However, a typical 13-year-old will also enjoy significant periods of time without any active supervision whatever.  In particular, it is intrinsic to the lives of teenagers that they are able to spend ever-increasing periods of time speaking to and interacting with their friends and peers, and without this being subjected to adult scrutiny.  Equally, it is very much a part of a teenager’s life that they are able to spend time alone, without the presence of an adult or any other person, whenever they like (and their routine allows).

The Judge considered further the consequences of restricted access to social media and the internet. 

Most 13-year-olds have access to social media and the internet.  For many, this represents a very significant element of their burgeoning independence, sense of self and social life.  Of course, for most, the use of social media is important because of and to the extent of that young person having both an immediate network of friends and possibly a secondary network of online acquaintances or ‘followers’ using any particular medium or platform.
To a greater or lesser degree, most 13-year-olds will be subjected at least to parental attempts to monitor and to restrict their use of social media and the internet.  Close and constant monitoring of all use would, in my view, be unusual

Conclusions 

This child was 16 years old and therefore it was highly unlikely a court would agree that it was within the ‘zone of parental authority’ to deny her access to her mobile phone for more than a short period of time or to monitor her use of it by way of ‘spyware’. (If a parent is paying for the mobile phone, it is probably lawful to refuse to keep paying for it!) and thus the proposed restrictions may amount to a deprivation of liberty, for which the court’s authorisation must be sought. It not a deprivation of liberty, this could be an unlawful breach of Article 8, but if its neither then the local authority will be reassured that its actions are within the lawful boundaries of its exercise of parental responsibility. 

UPDATE 23 November 2022

When this matter came before the court, the Judge did not agree that restrictions on use of mobile phone, or adding ‘spyware’ was a deprivation of liberty (which required the court’s authorisation) but it was a breach of Article 8. However, this breach was lawful as it was necessary and proportionate to protect the health and morals of the child. The Judge did not think the local authority required authorisation from the court as this situation was within their parental responsibility.

I think there is probably room for further argument about all of this, certainly on the deprivation of liberty point but for the time being, local authorities should consider carefully such restrictions, make sure that the reasons for them are articulated and impose restrictions for the shortest time necessary. This will protect against any future assertions of an unlawful breach and possible action under the Human Rights Act 1998.

Further reading

More general discussion of depriving children of their liberty and secure accommodation https://childprotectionresource.online/depriving-children-of-their-liberty/

NSPCC Guidance Keeping children safe on line

Manchester City Council v P (Refusal of Restrictions on Mobile Phone) (Rev1) [2023] EWHC 133 (Fam) – court clear that restriction on use of mobile phone is not an issue of deprivation of liberty, but of the exercise of PR

An open letter to Hannah Hirst re the ‘right’ of a child to medical transition

Children under 16 are very different to children over 16, both in legal terms and cognitive capacity. What happens when arguments are made for ‘children’s rights’ that does not make this explicitly clear?

Dear Ms Hirst

I attended your presentation at the webinar on November 11th ‘An Uncharitable Alliance? Mermaids v Charity Commission and the LGB Alliance’ where you spoke about children’s rights in the context of medical transition and your concerns about how the activities of the LGB Alliance and others might limit those ‘rights’. I note that prior to joining the University of Sheffield you taught Medical Law, Children’s Rights and Public Law at the University of Liverpool as a Graduate Teaching Fellow, so you clearly have knowledge and expertise in this area. 

This increases my concern over some of your assertions made at your presentation, which I set out below. 

As I think this is a matter of significant public interest, I am posting this on my substack and on the Child Protection Resource website. I would be very happy to publish a guest post from you in reply to all or any of this. 

I set out some of my specific concerns below, as I tweeted my thoughts during your presentation. While I would be grateful for any further information you can give about these specific concerns (most notably, the treatment offered, the ages, sex and outcomes for the ‘children’ who presented for ‘gender affirming’ treatment in the 1930s) my over-arching concern is that you apply a ‘rights based’ narrative of child welfare on ‘children’ as a whole, without any distinction between those who do or do not have capacity.

You point out the dangers of treating children as a ‘homogenous group’ – which I agree is often antithetic to the paramountcy principle of the Children Act 1989 which requires an intense focus on the welfare of the individual child who is the subject of legal action. However, you fall into exactly that trap, by failing to make explicit any distinction between children over and under 16 years of age. This is a particularly important distinction because a 16th birthday imports a statutory presumption of consent in many areas. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”

Referring simply to ‘children’ as you did throughout your presentation therefore in my view presents a significant risk to those younger children who in my view are highly unlikely to be able to offer consent to even social transition, let alone medical or surgical transition. They must not become ‘lumped in’ with children of 16. Applying a ‘rights based’ analysis to the welfare of children under 16, is in my view not merely inapt but can be actively harmful to the welfare of these children, when the adult making decisions on their behalf is working on prior ideological assumptions. 

The law clearly recognises and applies the importance of the child’s maturation in any decision making process. The House of Lords in Gillick approved the following dictum of Lord Denning MR

… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

If a person cannot understand the nature or consequences of a particular ‘right’ then the decision to enforce that person’s access to it is inevitably made by another. Despite the commendable efforts made by the Mental Capacity Act 2005 to underscore the importance of the ‘best interests’ analysis for those lacking capacity, it remains an inevitable truth that those who lack capacity will have decisions made about them and for them. It is essential that the adults who do this, approach the ‘best interests’ test with an open mind and free from prior assumption. 

For children under 16 what you are in fact advocating for is that an adult’s agenda must prevail where those children – I argue the overwhelming majority – are not Gillick competent. It was clear what this agenda is from your presentation and those of your colleagues that I heard. ‘Transition’ is presented as a ‘right’ of a child, attempts to argue for caution in the light of the lack of any compelling evidence for its efficacy, are dismissed as ‘transphobia’ or attempting to ‘erase’ trans people. 

I was not aware of any attempt in your presentation to engage with the Cass Review or how this has translated into the NHS England draft specifications regarding treatment for gender dysphoria. You made a brief mention of the Review and then spoke about how transition was not merely a medical issue but a social and emotional one also. I am sure you are right about that. But it does not mean that clinicians ought to be encouraged to provide treatment for a child which is irreversible, significant and has no evidence base. To do this is not merely wholly at odds with the welfare of the child, but requires clinicians to abandon the ethical foundations of their practice. 

This blurring or simply ignoring the crucial differences between children’s capacity to consent as they age and mature is sadly a common feature of discussion in this area from those who advocate medical transition as a moral and social good. I note for example the claim from Mermaids that if a child says they are trans, at ANY age, they are trans. The recognition that children ‘age into’ capacity is not some capricious, arbitrary or ‘transphobic’ whim – it is supported by decades of research into child development and noting how children’s ability to understand, retain and weigh up information is compromised by the development of their brain. The solution to this cannot be – as you suggest – to simply offer them ‘more information’ and was explicitly rejected by the Divisional Court in Bell v Tavistock.

This is a matter of particular concern for me as I note a ‘industry’ growing up of those who have not merely staked their professional reputations on the ‘trans child’ but also their income streams.

I would welcome any comment you feel able to give about any of the points I raise. 

Comments via live tweeting of the presentation 

Says there is evidence of children seeking gender affirming care from the 1930s ??? <I would like to see this>. Thinks true numbers of children seeking care now could be much higher as difficulties accessing care.

Recognises concerns about GIDS – inadequate rating and Cass Review. No acknowledgment of ‘gender diverse’ GD children’s rights. Under 18 not included in GRA. Gaps in EA and UNHRC.

accuses courts of not engaging with GD children’s rights and AGAIN refers to ‘rhetoric’. Access to medical transition has become a ‘power dynamic’ re access, compares to abortion and contraception (???)

Says Mermaids action has impact on child’s right to identity. Children are not one homogenous group and don’t have a identity separate from being a child. We don’t describe them as ‘agender’ or ‘nonbinary’

This might be linked to adult ‘discomfort’ about children having an ‘identity’ (OR we reject any assertion that a child can have an ‘agender’ identity as it is made up?)

Says the medical treatment of children has ‘moral and social’ benefits. (and isn’t this the problem? Clinical decisions and evidence overshadowed by adult preoccupations about what is morally good)

Says implications for child’s rights to information. They have rights to ‘all kinds’ of information (that’s certainly an interesting way of putting it).

Says ‘puberty is not reversible’ so treatment needed to prevent adults from surgical intervention. Children will pay hormones from unregulated websites (focus then should be on criminalising those providers, not making them an excuse to prescribe cross sex hormones).

‘we don’t have long term data because its so difficult to get children to engage’ WELL EXACTLY. they are children. They don’t have the capacity to engage in discussion or thought about this.

Now citing Sally Hines who says there is a lack of information for GD children (I think this can only mean a ‘lack of information promoting gender identity treatment). how can it be made accessible for children. (how indeed)

Child’s right to be heard in all matters affecting them (yes but their wishes and feelings can rarely be determinative, particularly when under 16). We need to engage with them.

LGBA have not involved GD children in their activities. Has due weight been attached to their views? (NO! because they are CHILDREN) Heavy reliance on Micheal Biggs but they should listen to Sally Hines.

Is this part of wider problem in hearing GD children who were also excluded by Gov in conversion therapy debate. An adult agenda put on children. No child witnesses in Bell (this is not true. statements from children. Which horrified the court)

Thinks LGBA will end up erasing minority groups, saying they ‘don’t exist’ and ‘shouldn’t be heard’ (this is NOT what anyone is saying. We are asking to listen to evidence). ‘Rolling back Gilick competence’ – (what is this? 16 years old have statutory competence.)

What impact does this have on GD adults and their experiences?

The silence of the Children’s Commissioners: Part II

This is a post by Sarah Phillimore

In May 2021 I wrote about the strange silence of the Children’s Commissioners about the issues of child safeguarding and welfare, which attracted international attention in the wake of the High Court ruling in Bell v Tavistock.

I could find nothing on the websites of any of the four Commissioners to suggest that this was an issue they were even aware of, let alone discussing. I was contacted by a person who made a FOI request on 7th January 2021 to the Children and Young People’s Commissioner Scotland for information held on the Keira Bell High Court judgment of 1st December 2020. This request was refused, went through an appeal process and the refusal was upheld.

I commented back in May that the reasons for refusal were concerning:

I have some sympathy with the need to exempt from disclosure material which represents the necessary ‘to and fro’ as people raise, discuss and refine issues of importance. I also understand the importance of maintaining confidentiality around legal advice. But it is very concerning that an organistion with the status of a Children’s Commissoner is clearly concerned that the nature of the discussion within its organisation and with the other offices may risk contributing to the ‘toxic nature’ of the debate. How could this be possible given that all who work there must be alive to the need ‘to keep the discussion focused on the issues and on the law rather than personalising them’?

I suspect there are two problems here. Given the nature and extent of institutional capture in the UK, individual staff members may have gone way beyond a focus on the law and engaged in moral castigation of those ‘hateful bigots’ who would seek to impede a child’s identification of their ‘authentic selves’. OR there is a realistion that simply commenting on the relevant law will be seen and seized upon by many as a ‘hateful’ ‘bigoted’ attack on the rights of an ‘exceptionally vulnerable’ minority. 

I have now had the benefit of reading more fully the reasons for upholding the refusal in ‘Decision Notice 171/2021’

The analysis notes that the withheld information comprises an email chain that originated from a member of staff of one UK Children’s Commissioner to their Commissioner, which was forwarded on. The Scottish Children’s Commissioner refused to disclose that email under sections 30(c) and 36(2) of The Freedom of Information (Scotland) Act [FOISA]. There was also an email from its in-house legal officer which it refused to disclose, citing section 36(1) of FOISA, which exempts disclosure of information which is confidential due to legal privilege.

The applicant argued that the public interest favoured disclosure as it pertained to a significant issue of child safeguarding and the views of the office charged with safeguarding those interests.

The Commissioner recognised the tension between two competing interests; public interest in such a significant area of child safeguarding, but also the interest of the Scottish Children’s Commissioner to receive full and unhindered legal advice to enable it to come to fully formed decisions. It decided that legal privilege outweighed the public interest in this regard.

With regard to the emails, 36(2) of FOISA provides that information is exempt from disclosure if it obtained from another person and disclosure would constitute a breach of confidence. However, it is generally accepted in common law that an obligation of confidence will not be enforced to restrain disclosure of information which is necessary in the public interest.

There are three main requirements to establish if information is given in confidence

  • the information must have the necessary quality of confidence
  • the public authority must have received the information in circumstances which imposed on it an obligation to maintain confidentiality
  • unauthorised disclosure must not be to the detriment of the person who communicated the information.

The Commissioner found that the first two requirements were met as the Children’s Commissioners were sharing information with each other ‘in confidence’ to promote their working relations.

But what about the third? The test of detriment does not require substantial damage, and could follow from mere fact of unauthorised disclosure. And this is where, in my view, it gets very interesting. The Scottish Children’s Commissioner stated that it did not have consent for wider disclosure from the individual who shared the information.

It explained that the issue under discussion was and remained highly contentious, with public opinion being very polarised. In its view, disclosure would cause significant emotional distress to this individual, with a real risk of them being exposed to online harassment and abuse for the opinions they expressed

The Commissioner accepted that the risk of online harassment is credible (but no where do I see any discussion of how it would be possible to disclose the contents of the email and keep the emailer’s identity private) and went on to consider the public interest in disclosing in any event. The Commissioner agreed with the reasons put forward by the Commissioner:

  • there was no attempt here to cover up any wrongdoing
  • there was a significant amount of information and commentary already in the public domain
  • at the time the information was withheld this was a live case still before the Court of Appeal
  • sharing information between Commissioners was to be encouraged

So what next?

The applicant has a right to appeal, I do not know if she will exercise that right but she has 42 days from the date of the decision. As an analysis of the relevant law it seems unremarkable – but what it throws up about the nature and the quality of discussion around medical transition is very remarkable indeed.

I can only speculate as to the contents of the relevant email and the language used which led to a credible fear of ‘on line harassment’ if it were revealed. The continuing silence of the Children’s Commissioners in expressing any kind of view about the advisability or efficacy of medical transition makes me ponder that the email was supportive of those who claim that any challenge to or discussion of these issues is ‘transphobia’ or other unacceptable bigotry.

But it doesn’t really matter which ‘side’ of the polarised debate the author fell. What is truly shocking is that we have reached a position in 2021, in a secular democracy, where particular views must be shielded from public gaze lest they attract abuse, intimidation and other threats. This is particularly worrying when the organisations who feel they have no choice but to be silent are those charged with statutory obligations to safeguard our children.

I am not aware that any of the Children’s Commissioners have since expressed any public view at all about medical transition. Perhaps they are awaiting the Cass Review? But at some point, and soon, they are going to have to fulfil their statutory obligations and the silence must end.

EDIT

Thanks to a Twitter user who reminded me that it was Anne Longfield as England Children’s Commissioner who remained completely silent (despite many parents and whistleblowers contacting her) right up until the judicial review proceedings.

However, she then she ordered the Care Quality Commission inspection which reported in January 2021 and found the Tavistock to be ‘inadequate’. Longfield was then replaced by Dame Rachel de Souza as Commissioner. I wonder if there is anything interesting in that timing. I guess we will never be allowed to know.

So useful to be reminded that the Children’s Commissioners do have some role to play. But makes it more worrying that we do not know now what they think of it all. To say ‘but there is lots of information in the public domain!’ is no answer at all. Many of us want to know what those with particular statutory obligations, funded by public money, have to say about one of the most serious medical scandals involving treatment of children in recent decades.

Children’s Consent to Medical Transition

The Court of Appeal decision in the Bell v Tavistock case.

This is a post by Sarah Phillimore. I will be discussing these issues at a webinar organised by EBSWA on September 30th. Please join us.

https://m.facebook.com/chegender/photos/a.933845336653629/3805107706194030/?type=3&source=54

Summary

Over recent years, considerable debate has arisen over the consequences of medical intervention which aims to allow ‘gender dysphoric’ children to ‘transition’ from the body into which they were born, to better reflect their perceived ‘gender identity’.  There are serious concerns that this kind of intervention is experimental, with no clear evidence base and carries significant risks for the child.

The debate culminated in 2020 with the challenge of Keira Bell by judicial review, against the lawfulness of the decision by the Tavistock and Portman NHS Foundation Trust (‘the Tavistock’) to agree that she could offer valid consent to medical transition, aged 16. The High Court determined that such cases should be brought to court for a ‘best interests’ decision, emphasising how unlikely it was for children under 16 to be ‘Gillick competent’ and therefore able to offer informed consent to medical transition, by way of puberty blockers and cross sex hormones.

The Tavistock appealed in June 2021 and the judgment was published today, September 17th 2021.

In brief, the Court of Appeal allowed the appeal, considering that the High Court had made findings on controversial and disputed facts, which was not the purpose of a judicial review and which is was not entitled to make. The court noted the real danger in situations involving ethical questions coming before the court on disputed evidence which is not capable of resolution in this arena. The court may attempt “to enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice.” (para 77). The decision about treatment must be made by the clinicians, child and parents. However, the Court of Appeal sounded a clear note of warning at paras 92 and 93 – clinicians must be aware of their ethical duties when determining a child’s informed consent and failure to do so will carry regulatory or even criminal consequences.

So where do we go from here?

The necessary debate about the implications of medical transition for children – particularly as the huge recent surge in referrals of teenage girls strongly suggests some kind of social contagion rather than pressing medical need – has been gravely hampered by a toxic and polarised atmosphere, whereby legitimate concerns about the welfare of children have been actively rejected as ‘bigotry’ or ‘transphobia’. However, in the run up to the first hearing in Bell and immediately afterwards, consideration of the welfare issues for children began to get more serious exposure.

Current NHS advice with regard to puberty blockers and cross sex hormones states that little is known about the long-term side effects of either treatment. Although some claim that puberty blockers are a physically reversible treatment, the psychological effects are not known. There are concerns about potential impact on the brain  or bones. For boys, ‘pausing’ puberty may mean they do not develop enough penile or scrotal tissue to undergo later construction of a neo-vagina. Cross sex hormones may cause irreversible changes to the body – such as breast growth or deepening of the voice and temporary or permanent sterility. 

The National Institute for Health and Care Excellence (NICE) (see ‘further reading’ below) has concluded that any potential benefits of gender-affirming hormones must be weighed against the largely unknown long-term safety profile of these treatments in children and adolescents with gender dysphoria. Other jurisdictions, such as Sweden, Finland and Australia are also raising concerns about the quality of the available evidence. 

The High Court decision

The High Court held  that in order for a child to be competent to give informed consent to puberty blockers, the child would have to understand, retain and weigh the following information:

  • the immediate consequences of the treatment in physical and psychological terms;
  • the fact that the vast majority of patients taking puberty blocking drugs proceed to taking cross-sex hormones and are, therefore, on a pathway to much greater medical interventions;
  • the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery;
  • the fact that cross-sex hormones may well lead to a loss of fertility;
  • the impact of cross-sex hormones on sexual function;
  • the impact that taking this step on this treatment pathway may have on future and life-long relationships;
  • the unknown physical consequences of taking puberty blocking drugs; and
  • the fact that the evidence base for this treatment is as yet highly uncertain.

The Court considered that it was ‘highly unlikely’ that a child of 13 years or younger could give informed consent (the youngest patient referred to the Tavistock for puberty blockers was aged 10 years) and ‘doubtful’ whether a child aged 14 or 15 could. Clinicians were advised to consider seeking court authorisation before treating any child, but that position was clarified in AB v CD & Ors [2021] EWHC 741 (Fam). If child, their parents and the clinician all agreed that treatment was the best course of action then court authorisation was not required. 

The response of the Court of Appeal

The Court of Appeal, comprised of Lord Burnett of Maldon, Sir Geoffrey Vos and Lady Justice King, handed down its judgment on 17th September 2021.

The judgment begins by making it clear that the only issue before the court was the question of whether or not the sanction of the court was needed before puberty blockers or cross sex hormones were prescribed – not whether the treatment itself was lawful. The claimants argued that those under 18 were not capable in law of giving valid consent.

The court notes at para 5 an ‘odd feature’ of the claim – it was not actually the Tavistock who prescribed puberty blockers. It referred children on to either UCH or Leeds which then independently made its own clinical assessment and obtaining valid consent from the child. Neither hospital trust was joined as a party to these proceedings but intervened as it was their prescribing of puberty blockers that was ‘under attack’. In reality therefore, the claim was a challenge to the NHS policy of providing treatment for gender dysphoric children – the gender identity service at the Tavistock (GIDS) is provided as part of the NHS Standard Contract and commissioned by the NHS Commissioning Board in accordance with a service specification.

The High Court did not find any illegality in the policy or practice of the Tavistock, UCH or Leeds. Nor did it agree that the information given to children was ‘inadequate’ – but did express concern about the ability of children to understand and weigh it [para 150]. The claim for JR was not however dismissed; the High Court went on to declare precisely what was required by ‘informed consent’.

The Tavistock appealed on 8 grounds (para 12)

  • Grounds 1 and 2 – the court misapplied the law in Gillick.
  • Ground 3 – the court’s conclusions were inconsistent with the 1969 Family Law Reform Act.
  • Grounds 4 and 5 challenge the conclusion that prescription of puberty blockers for gender dysphoria is “experimental” and that their effects are “lifelong” and “life-changing”.
  • Grounds 6 and 7 – challenge the court’s reliance on expert evidence adduced by the claimants and relying on it to resolve clinical differences of opinion.
  • Ground 8 – that that the approach of the court discriminates against children with gender dysphoria which cannot be justified

From para 15, the Court of Appeal examined the factual background in more detail. From para 24 it sets out the history of the use of puberty blockers.

How did the High Court deal with the law?

The Court of Appeal examined this from para 39. The High Court had concluded that apart from ‘life saving’ treatment, there could be no more profound intervention in a child’s life and therefore it was appropriate for the court to sanction this type of treatment. But the Court of Appeal responded to remind itself that it should be wary of “becoming too involved in highly complex moral and ethical issues on a generalised, rather than case specific basis.” Neither the service specifications nor the standard operating procedures of the Tavistock were unlawful. The House of Lords in Gillick had been very clear that it was for the clinician to decide if a child under 16 could give informed consent to medical treatment. It was unwise for the courts to attempt to put judicial limits on this – the rights of the patients were better protected by the professional standards of the treating clinicians.

How did the High Court deal with the evidence?

The Court of Appeal were unhappy with how the High Court dealt with disputed evidence.

Even from within the evidence filed on behalf of Tavistock, there is an apparent disconnect between the international experience that 1.6% of children who started puberty blockers did not go on to cross-sex hormones and the figures which arose from the random sample, namely that of 49 referred to the Trusts only 27 were approved for or accessed cross-sex hormones. This is one example of the difficulty in drawing conclusions from statistics which are not fully explained or explored in an evidential context where they were peripheral to the legal dispute before the Divisional Court and where any apparent differences were not capable of being tested forensically.

The Court of Appeal agreed with the stated approach of the High Court that a judicial review was not the correct arena for making findings of fact (para 31) or attempting to choose between disputed expert evidence but considered that despite these statements of intent, the High Court had made some factual determinations. See from para 33:

  • It was unusual for a child to be refused puberty blockers because s/he could not consent; instead ‘more information’ was offered.
  • Once a child started puberty blockers they were on a clear pathway to cross sex hormones
  • This treatment was rightly described as ‘experimental’
  • This treatment may support the persistence of gender dysphoria, which would otherwise have resolved

The Court of Appeal were unhappy that the status of the claimant’s evidence had not been resolved by the High Court- it had been adduced without permission and some of it was ‘argumentative and controversial’. A judicial review is simply not the arena to resolved disputed expert evidence and normally the defendant’s evidence would be taken at face value.

There was further discussion of this from para 61. The High Court found the treatment was ‘experimental’ on the basis that there was ‘real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy’ – but the Court of Appeal found it would have been better to avoid those kind of ‘controversial’ findings. The same criticisms were levelled at the finding that the overwhelming majority of children would move from puberty blockers to cross sex hormones. The declaration “turns expressions of judicial opinion into a statement of law itself. In addition, it states facts as law which are both controversial and capable of change” (para 80).

As the Court of Appeal made clear at para 64

The point, however, is that these judicial review proceedings did not provide a forum for the resolution of contested issues of fact, causation and clinical judgement….As will appear from what we say in the next section of this judgment, we have concluded that the declaration implied factual findings that the Divisional Court was not equipped to make.

Was the High Court right to make declarations about the nature of the treatment?

Short answer: No. The Court of Appeal examined this issue from para 66, noting that it was the heart of the appeal: the Tavistock arguing that the court “intruded into the realm of decisions agreed upon by doctors, patients and their parents, where the court had not previously gone.” Nor could the Court of Appeal find any example of declaratory relief being granted in a judicial review where the challenge with regard to the law had failed.

At para 70 the Court of Appeal criticised the High Court’s declarations as attempting an exhaustive list of factual circumstances that must be evaluated in seeking consent from a child. But some of the factors identified beg questions to which different clinicians would give different answers. At para 75 the Court of Appeal said:

The evidence of Tavistock and the Trusts was that the treatment was safe, internationally endorsed, reversible and subject to a rigorous assessment process at each stage. It was supported by the service specification, the WPATH guidelines, the Endrocrine Society Clinical Guidelines and explained in the witness statements of Dr Carmichael and Dr Alvi. As we have seen, and as these proceedings have illuminated, there are strongly held contrary views. The declaration would require the clinicians to suspend or at least to temper their clinical judgement and defer to what amounts to the clinical judgement of the court on which key features should inform an assessment of Gillick competence, influenced by the views of other clinicians who take a different view and in circumstances where Mr Hyam accepts that the service specification, which sets out criteria for referring a child for puberty blockers, is not unlawful. 

Both Lords Scarman and Fraser had in Gillick made detailed observations about what they would expect to see from doctors assessing informed consent. But to have turned these into declarations of law would have been inappropriate (para 81).

Was the High Court right to have given guidance that these matters should come before the court?

Short answer: no. The Court of Appeal noted at para 86 that requiring the decision about this treatment to be sanctioned by the court “placed patients, parents and clinicians in a very difficult position”. The guidance would in practice have the effect of denying treatment as many wouldn’t have the resources to make an application and there would be inevitable delay through court involvement. In addition, where child, parents and clinicians agree treatment is in the best interests of the child, it would be inconsistent with the conclusion of the Supreme Court in An NHS Trust (discussed at [49]) to bring the matter to court.

Having made these decisions, the Court of Appeal did not need to consider the issues around discrimination in the final ground of appeal.

Where next?

I do not doubt that gender dysphoria is a ‘real thing’ and causes great suffering. However, I do very strongly doubt that it is as common as current referal rates or social media activity suggests. The majority of children expressing ‘gender variance’ will not wish to ‘change sex’ if left to go through puberty unmedicated.

The Court of Appeal was clear at para 92 that the pre-Bell landscape has shifted and sounds a warning note for clinicians and their insurers.

We should not finish this judgment without recognising the difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones. They raise all the deep issues identified in Gillick, and more. Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. Great care is needed to ensure that the necessary consents are properly obtained. As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested. 

And at para 93:

But it is for the clinicians to exercise their judgement knowing how important it is that consent is properly obtained according to the particular individual circumstances, as envisaged by Gillick itself, and by reference to developing understanding in this difficult and controversial area. The clinicians are subject to professional regulation and oversight.

Keira Bell’s judicial review has failed but she has performed a great service for not only the welfare of children but also the integrity of the medical and scientific community. The High Court blew the lid off the lack of proper evidence in this field alongside the bizarre cementing of an ‘affirmation path’ which confined children on a route to really serious medical intervention, for the rest of their lives. I hope that the discussion generated by both the High Court and the Court of Appeal will finally bring an end to this dangerous climate of fear, where necessary discussion is shut down as ‘transphobia’.

While I am disappointed that there is little reference by the Court of Appeal to the ancient powers of protection that the court exercises over children I can understand the limitations of the judicial review process and the difficulty of trying to determine disputed and controversial evidence within it. I also hope that the medical profession will undertake their duties to properly assess the informed consent of their child patients, without bowing to pressure from political lobby groups.

The signs are hopeful now of more general willingness and openness to discuss these very important issues. The Cass Review was commissioned in 2020 to carry out an independent review into gender identity services for young people. Its terms of reference focus on the assessment, diagnosis and care of children with gender incongruence and will be wide ranging in scope.

I will await the outcome of the Cass Review with great interest. I hope it is going to show that all patients, but particularly children, need services that are insulated from political ideology. ‘Talking therapies’ must assume a greater importance than simply a model of affirmation. This will no doubt place an even greater strain on the existing specialist facilities for ‘gender diverse’ children but the long term impacts on children are too serious to ignore and we must make investment in our children’s mental health a priority. 

First – Do No Harm.

Online comment

The variety and disparity of the online comment immediately generated, underscores for me the need for Parliament to step in and set clear parameters for the age limits for this treatment.

Transgender Trend response

Andrew Tettenborn, Salisbury Review

Court overturns ‘cruel ruling’ Pink News

Gendered Intelligence blog

Further reading

When can a child consent to medical transition? PDF ‘explainer’ from Transgender Trend and EBSWA

‘How do children consent? The interplay of Gillick competence and parental responsibility’ CPR Jan 2020

Age at which child can access transgender hormone therapy in Europe 2017 https://fra.europa.eu/en/publication/2017/mapping-minimum-age-requirements/transgender-hormone-therapy

‘First Do No Harm’ May 2019 presentation at the House of Lords https://2d3aa506-25d9-4c0d-b140-7d13f9421f96.filesusr.com/ugd/1b54b4_32788a07d22f4fa59e2cab0dfc6971cf.pdf

For discussion about the research in this area of the efficacy of the current treatment regimes, see Jesse Singal “How Science-Based Medicine Botched Its Coverage Of The Youth Gender Medicine Debate”

https://jessesingal.substack.com/p/how-science-based-medicine-botched

For an examination of the history of the drive to increase children’s access to puberty blockers and cross sex hormones, see Michael Biggs investigation in 2019 ‘The Tavistock’s experiment with puberty blockers’ https://users.ox.ac.uk/~sfos0060/Biggs_ExperimentPubertyBlockers.pdf

Professors Lemma and Savulescu essay in July 2021 in “To be, or not to be? The role of the unconscious in transgender transitioning: identity, autonomy and well-being” https://jme.bmj.com/content/early/2021/07/29/medethics-2021-107397

National Centre for Health and Care Excellence [NICE] evidence review of puberty blockers https://www.evidence.nhs.uk/document?id=2334888&returnUrl=search%3fq%3dtransgender%26s%3dDate

NICE Evidence review of Cross Sex Hormones https://www.evidence.nhs.uk/document?id=2334889&returnUrl=search%3ffrom%3d2021-03-10%26q%3dEvidence%2bReview%26to%3d2021-04-01

Gender Affirming hormone in children and adolescents BMJ 2019 https://blogs.bmj.com/bmjebmspotlight/2019/02/25/gender-affirming-hormone-in-children-and-adolescents-evidence-review/

The decline and fall of science based medicine Andy Lewis July 2021 https://www.quackometer.net/blog/2021/07/the-decline-and-fall-of-science-based-medicine.html

Organisations/Podcasts

Gender: A Wider Lens podcast. Therapists Sasha Ayad and Stella O’Malley openly consider gender, identity, and transition, 

https://www.youtube.com/channel/UCP62aWWtlZV1oVnbMhTRBcg

Transgender Trend https://www.transgendertrend.com/

An organisation of parents, professionals and academics based in the UK who are concerned about the current trend to diagnose children as transgender, including the unprecedented number of teenage girls suddenly self-identifying as ‘trans’ (Rapid Onset Gender Dysphoria or ROGD). See discussion of the teenage brain https://www.transgendertrend.com/teenage-brain/

Evidence Based Social Work Alliance https://www.ebswa.org/

A group of social workers committed to evidence-based practice, a process that involves open discussion and professional curiosity. 

 

In praise of Bristol Pro Bono

In 2020 the Bristol Pro Bono Network finally became a reality, after years of thought and planning from those who knew that the enthusiasm and talent of Bristol lawyers needed better direction so that it could more easily reach those who needed it. I am writing this post as an unashamed plug; I was shocked at a recent meeting to be told that if you search ‘free legal advice in Bristol’ the BPBN doesn’t appear – I have just checked and it isn’t on the first page of google search results. I am hoping that by writing this blog post and linking to the site, I may increase its chances of being found.

And I think it is definitely worth plugging.

The mission of the group is to identify unmet legal need, support the delivery of pro bono advice and share best practice.

We are passionate about access to justice. We encourage lawyers to work with local universities and community groups to deliver free legal advice to individuals who don’t have access to legal advice. Bristol Pro Bono Group works collaboratively to identify not-for-profit organisations working in the public interest who need legal help.

​

What is pro bono?

The BPBN follows the definition of pro bono used by TrustLaw (found here). In essence – it is legal work done by qualified lawyers, for no fee. ‘Pro Bono’ is taken from the Latin phrase ‘pro bono publico’ – for the good of the public. The Latin phrase is almost certainly a problem in engaging with a wider audience as it isn’t immediately clear what it means, but it is likely we will never shake it now – ‘free legal work’ doesn’t have quite the same ring.

Pro bono work can never be a substitute for a proper system of publicly funded legal services, and some lawyers object to offering pro bono services in case this undermines the commitment of Government to provided proper funding. However, the BPBN believe, as do I, that lawyers have the responsibility to use their professional skills to do their bit for society. The Legal Aid Sentencing and Punishment of Offenders Act 2012 removed legal aid from a large range of civil matters, including disputes between parents about seeing their children. This was apparently in the the expectation that such parents would seek mediation to resolve their differences, but such expectations were dashed. Such private law applications are increasing year on year and leading to a huge rise in the number of litigants in person. I have written year about the types of clients who use the Bristol Family Law Scheme which started in 2015 and is part of the BPBN.

This is how it looked in 2017, from 246 clients.

English as a second language65 26%
Likely to be in person199 80%
Mental health problems36 14%
Substance abuse39 16%
Learning difficulties or literacy problems31 13%
Immigration difficulties13 5%
Child abduction14 5%
Violence or sexual abuse of adult or child130 53%
Previous proceedings91 37%
Leave to remove17 7%
Current criminal proceedings10 4%
Reference to other agencies42 17%

It is a poor reflection on our society that such a client base has no ability to pay lawyers privately and no access to Government funded legal aid. Pro Bono work is a small drop in that ocean of need but I think it is important. Not just for the individual who may be helped but for the lawyer who offers help – something outside the daily grind of billable hours, a chance to connect and strengthen our bonds of community.

So if you are in the Bristol area and need legal help, check out the website and the services it offers. The BPBN can offer help in the following areas.

  • Welfare benefits 
  • Not-for-Profit assistance
  • Housing advice 
  • Employment and discrimination advice
  • Family advice
  • Asylum and immigration advice

And hopefully next time I try, we may have made it to page 1 of the Google search results!

8th Family Law & Children’s Rights Conference July 2021, Singapore

I have been invited to present a paper at this conference, postponed from July 2020 due to the pandemic. This was a timely postponement as it will enable me to incorporate and discuss what will be a seminal judgment in the Keira Bell case, due to be delivered on December 1st 2020.

The changing legal response to primary school children who are said to wish to transition from one sex to the other.  Have legal responses been captured by considerations other than the rule of law and the welfare of children?

Historical context – the birth of the ‘trans child’ 

Only an understanding of how we got here will enable us to fully understand where we are now. By 2018 it had become firmly established as a UK ‘cultural norm’ that transgender identities were inherent and that any challenge to this was not acceptable, to the extent that those raising questions or unease about how this translated to choices made by even very young children were ‘transphobic’ and ‘hateful’. 

This is a pretty dramatic shift from 20 years ago, when the issue of the ‘trans child’ simply was not on the radar of the family justice system. The concept has been successfully normalised in what seems a very short space of time, using both medical and legal routes. 

From 1999 – 2019 I encountered not a single case involving a ‘transgender child’ but in 2020 I had two. How has recognition of issues of ‘gender identity’ shifted so dramatically over the past decade?. ‘Queer Theory’ has become more mainstream; this, in essence, re-frames innocence and vulnerability in children as ‘support systems of power’ that enforce heteronormatively and other harmful stereotypes. 

As long ago as 1979 the ‘Harry Benjamin International Gender Dysphoria Association’ was established, now known as the World Professional Association for Transgender Health (WPATH). This organisation advocates for ‘trans affirmative’ clinical guidance and training course for health professionals working with transgender people. 

By the 1990s in the UK, parents of ‘gender dysphoric’ children began to request hormone suppression at the first signs of puberty. Such ‘puberty blockers ‘ administered at a young age, followed by cross sex hormones, would enable a child to ‘pass’ more effectively as the opposite sex when an adult. By 2009 the Endocrine Society had new clinical practice guidelines for treatment of transgender children which lowered the age for administration of hormones from 16 years to the first onset of puberty. However, the long term consequences of such treatments are not known – and it was not until 2020 that the NHS revised its on line guidance to make that clear. 

In the USA in 1995 an International Bill of Gender Rights (IBGR) emerged, setting a legal stage for the development of ‘the transgender child’ including claimed rights for transgender peope to define their own gender identity and to alter their bodies, surgically or medically as they saw fit, coupled with a right not to be subject to ‘involuntary psychiatric diagnosis or treatment’. 

In 1997 the European Court stated in X, Y and Z v the UK (1997) 24 EHRR 143 that transexuality “raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States”. But over the years that followed, the complexity of those issues were re-considered in the light of growing demands for the recognition of the rights of trans people. 

In 2007 the ‘Yogyakarta Principles’ were drafted by a group of academics and transactivists.. Gender identity was defined as:

… each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.

The Yogyakarta Principles have no legal force, they are not incorporated into any UN convention or declaration but over time they have been regularly cited and relied upon. They were redrafted in 2017 to propose ‘no eligibility criteria, such as … minimum or maximum age … shall be a prerequisite to change one’s name, legal sex or gender’

In 2007 in the UK, the Department of Health declared that being trans is ‘not a mental illness’ and by 2012 the British Psychological Society produced guidelines to affirm all sexualities and genders, pointing out their profession’s long and inglorious history of pathologizing individuals who went against traditional norms of sexual expression. 

In 2008, Department of Health guidelines advised ‘sex assigned at birth’ and the child’s ‘inner sense of knowing’ their true gender, may not align, and ‘gender variance’ in children can emerge at a very young aged, identified in the ways children behave in their dress or play. Parents were urged to address their child’s gender variance as soon as possible in order to secure their future as a happy adult.  

Around this time, referrals to the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust showed a staggering increase; from just 97 in 2009/10 to 2,016 in 2016/17. 

From 2014/15 to 2015/16,referrals increased by over 100% and from 2015/16 to 2016/17 they increased by 41%. Ages at referral seen by the service ranged from a very few at 3 to 17 years old [www.ncbi.nlm.nih.gov] The majority of the children were registerd female at birth. 

What had apparently been born out of a desire to confront and tear down harmful stereotypes around regressive gender stereotyping, had instead become affirmation of the same, to the extent that if a boy wished to play with ‘girl’s toys’ or wear ‘girl’s clothes’ he could not actually be a boy but was instead a girl born ‘in the wrong body’. 

Since 2015, after the fight for gay marriage was won in the UK, the lobby group Stonewall added a ‘T’ to the LGB, a move that saw its funding increase from £4.33m in 2013, to £7.24m in 2017. The charity Mermaids, saw a similar surge in its funding. 

The Human Rights Council established the office of the Independent Expert on Sexual Orientation and Gender Identity (SOGI) in June 2016 and the European Court of Human Rights (EHRC) recognized homophobic and transphobic hate crimes in 2018.

Also in 2018 the Royal College of Psychiatrists (RCPsych) in the UK endorsed the propostion that sex is assigned and gender identity inherent, supported removal of transgender status as a psychological disorder and objected to any kind of ‘conversion therapy’ to make people ‘cis gender’ (i.e. one whose ‘gender identity’ is congruent with their birth sex). 

Alongside these declared positions by medical bodies and campaigning groups, frequent reference was made to the dangers of denying children access to treatment to address their gender variance. It has frequently been asserted that as many as 40% of transgender adults have attempted suicide; for example see “Pubertal Suppression for Transgender Youth and Risk of Suicidal Ideation,” (Turban JL, et al. Pediatrics. Jan. 23, 2020” . 

However, the UK organisation Transgender Trend unpicked some of the research that supports this figure and concluded it was unreliable.

One study was conducted by questionnaire using a non-probability sampling method. This means that the questionnaire was promoted within the LGBT community and people chose whether or not to fill it in. In total 2078 questionnaires were analysed, however only 120 of these were transgender people, and only 27 of these were under the age of 26 years old. It is only the results from the 27 young trans people that was reported in relation to suicide.  Of these 27 young trans people 13 of them reported having attempted suicide at some point in the past. This is where the 48% of all trans youth attempt suicide stat comes from.

Gillick competence

The bulk of reported legal cases around transgender issues reflect the choices made by adults. But when considering a child who declares themselves to be ‘trans’, we must examine more carefully the reality of their informed consent to medical treatment which could leave them infertile or with reduced sexual functioning as adults. There is no ‘test’ for ‘gender variance’ – doctors are expected to prescribe treatment on a self reported diagnosis. 

“Gillick competence” refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. It derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 where a mother attempted to argue that children under 16 should not be provided any treatment or advice around sexual issues. The court disagreed and said that younger children could access such services, as long as they were able to understand the implications – i.e. were they ‘Gillick competent’?

Although a ‘child’ is defined as a person between the ages of 0-18, Gillick competence is only relevant to children under 16. Once children reach 16, in England and Wales they are held by various statutes as able to make their own decisions across a range of issues. 

These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age.”

The Austrialian case of Imogen (No. 6) [2020] Fam CA 761; (10 September 2020) has some useful discussion about the continuing role of the court, even with a Gillick competent children (Imogen being over 16 at the time of the proceedings).  The court identified the two stages of treatment for gender dysphoria as ‘stage 1’, being ‘puberty suppression’ via gonadotrophin releasing hormone analogues (GnRHa) in order to halt progression of physical changes such as breast growth or voice deepening. Stage 2 is ‘gender affirming hormone treatment’. 

The court makes a distinction between therapeutic and non-therapeutic treatment, stating that both Stage 1 and Stage 2 were deemed ‘therapeutic’.  Non therapeutic treatments were held to involve invasive, irreversible and major surgery, where there was a significant risk of making the wrong decision and where the consequences of that decision are particularly grave. Given that so little is known about the long term impact of puberty blockers and cross sex hormones for children, I suggest there is a question mark about the categorisation of both stages as ‘therapeutic’. 

But the distinction is important when considering the limits of the court’s paternalistic powers to rule against the wishes of a Gillick competent child. It is of course possible, but very unusual. For example, In X and Others v The Sydney Children’s Hospital Network [2013] NSWCA 320;  (2013) 85 NSWLR 294, the court did not allow a competent 17 year old Jehovah Witness to refuse blood products which were potentially lifesaving. However, this was the only case identified where a court has overruled the views of a Gillick competent child to impose treatment. Other cases involving anorexia nervosa and treatment for drug rehabilitation involved children who were not Gillick competent (Director General, Department of Community Services v Y [1999] NSWSC 644; Director General, Department of Community Services v Thomas [2009] NSWSC 217;  (2009) 41 Fam LR 220). There was no recorded case where a court had refused a Gillick competent child the opportunity to consent to therapeutic treatment. 

Much then seems to turn on how the adults assess the nature of the intervention to which a child seeks to consent. There has been considerable disquiet in England about the apparent ‘affirmation path’ upon which children are placed – in that treatment is not merely seen as ‘therepeutic’ but the only identified option, as opposed to therapeutic intervention. 

Marcus Evans, now a psychoanalyst in private practice, formerly served as Consultant Psychotherapist and Associate Clinical Director of Adult and Adolescent Service at the Tavistock and Portman NHS Trust. In 2020 he wrote about why he resigned.

https://quillette.com/2020/01/17/why-i-resigned-from-tavistock-trans-identified-children-need-therapy-not-just-affirmation-and-drugs/

Those who advocate an unquestioning “affirmation”-based approach to trans-identified children often will claim that any delay or hesitation in assisting a child’s desired gender transition may cause irreparable psychological harm, and possibly even lead to suicide. They also typically will cite research purporting to prove that a child who transitions can expect higher levels of psychological health and life satisfaction. None of these claims align substantially with any robust data or studies in this area. Nor do they align with the cases I have encountered over decades as a psychotherapist.

As Heather Brunskell Evans points out, the child’s ‘gender identity distress’ is occurring within this cultural context and the ‘fantasy’ that it is possible to become the opposite sex. This prevents proper or even any discussion of the reality and limitations of surgical and medical interventions – for example, surgery on the female body to simulate a penis cannot create a fully functioning organ. There must be real and serious doubts about whether a child or adolescent can grasp the importance of information about medical or surgical intervention and fully understand the implications. Therefore significant doubts exist about the reality of their consent. 

There were futher worrying signs that the intent announced in the Yogyakarta Principles’ – to remove any minimum age based reqirements around gender issues  – were being encouraged further into the cultural context. For example, in 2019 the legal adviser to the Mermaids charity, attempted to erase entirely any distinction between very young children and those with ‘Gillick competence’ by commenting  

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

Two High Court cases. Re J and Re TP 

So it is interesting to see how all of this has impacted on the approach of the courts in England and Wales, when considering the welfare of very young children who were declared by the adults around them to be ‘transgender’. 

Both cases examined the issue of preschool children transitioning to the opposite sex. That is probably the only factor each case has in common but I think the different approach in each to the very young ‘trans child’ is an indication of the speed with which attitudes have apparently shifted – from not simply recognising the existence of young children who may have gender dysphoria and offering appropriate support, but to embracing the affirmation principle itself. 

J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016) involved a mother who asserted that when her son was 4 years old he wanted to become a girl. She asserted that he ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this and the school denied it was happening. She was supported throughout by the charity Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J wished to be a girl. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’

Mr Justice Hayden was highly critical of the local authority for getting swept up in this ‘prevailing and false orthodoxy’, commenting at paragraph 20 of the July judgment:

This local authority has consistently failed to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. I propose to invite the Director of Children’s Services to undertake a thorough review of the social work response to this case. Professional deficiencies to this extent cannot go unchecked, if confidence in this Local Authority’s safeguarding structures is to be maintained.

So in 2016 it was clear to see that the court was doing its job to protect children; undertaking a clear and objective appraisal of the available evidence and making a decision in the face of angry opposition from Mermaids – who declared at the time that this decision would be appealed. It was not.

However, the approach of the court seems to have shifted quite dramatically only 3 years later in the case of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30. This involved foster carers who had two unrelated children in their care who decided they wanted to transition – the youngest aged 4 years old. The local authority were applying to withdraw care proceedings, so it was a very different situation from re J. But even so, it’s interesting to see how the Judge framed this issue of transitioning pre schoolers:

Notwithstanding even the Guardian’s caution in respect of the openness of [the foster carers] to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of [the foster carers] it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

This poses two immediate questions: how is it ‘overwhelmingly obvious’ that a 4 year old will experience no harm from a decision to transition from male to female at such a young age (and against the wishes of the school). It seems to be an inescapable fact that the evidence base to support any expert opinion that full social transition for a pre-school child is a ‘positive’ thing, simply cannot exist. 20 years ago, so far as I have been able to discern, this phenomenon was unknown. There is apparently no cohort of children who have been tracked from toddlerdom to adulthood to see if full social transition at a young age was something that helped or hindered their emotional, physical and sexual development. If I am wrong and that evidence does in fact exist, it did not appear to be before the court in either of the two cases I discuss here.

The second question is why the court did not give more critical appraisal to the highly unusual fact that here were two unrelated children in the same family, both apparently expressing a wish to change sex at a very young age. To what extent can the court be confident that this was a genuine expression of their wishes and feelings, rather than a product of environmental and social pressure from the adult care givers? There is considerable and I think reasonable fear expressed by gay people that some parents would rather have a trans child than a gay child as this is more ‘socially acceptable’.

I think there is a real problem here. No one is suggesting – yet – that 4 year olds should face surgery or medical intervention. But how confident are we that a child set on a path aged 4 is going to find it easy to leave that path when older? The ultimate destination is presumably some form of significant medical or surgical intervention and life long consequences. It is troubling to note that we appear to know more about the impact of puberty blockers on sheep than we do on children. I note the comments from the Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust:

KIERA BELL CASE TO DISCUSS WHEN JUDGMENT IS OUT 

Tide is turning ?

Shortly before the case was heard in court on 7th and 8th October, the NHS announced a review on 22ndSeptember, lead by Dr Hilary Cass OBE, former President of the Royal College of Paediatrics and Child Health, into gender identity services for children and young people. The review will be wide-ranging in scope looking into several aspects of gender identity services, with a focus on how care can be improved for children and young people including key aspects of care such as how and when they are referred to specialist services, and clinical decisions around how doctors and healthcare professionals support and care for patients with gender dysphoria. It will also set out workforce recommendations for specialist healthcare professionals and examine the recent rise in the number of children seeking treatment. Recommendations for children and young people’s gender identity services will be made in 2021. 

.

How does the court decide to have a ‘fact finding’ hearing?

A ‘fact finding hearing’ does what it says on the tin. It’s the way in which the civil courts attempt to find out what happened when people disagree about the facts. Or, to be more accurate, it ‘finds’ facts on the balance of probabilities, which is the civil standard of proof. So if the Judge reads the court papers and hears people give evidence and be questioned, then thinks that something is 51% more likely to have happened than not, you will get your finding. 

There is a curious narrative in the family justice system that this system establishes the ‘truth’ and that children are entitled to it. I agree that children have a right to know what happened to them – who hurt them and why – but I have often argued that we need more realism about the nature and limitations of the fact finding process. 

In 2016 I said for a post for The Transparency Project

I can find only one mention in the judgment – at para 22 – to the fact that ‘the Truth’ will be determined in any rehearing on the balance of probabilities. The usual civil standard. Meaning more than 51% likely. I apologise if I have missed any further reference to this low civil standard – but certainly by para 27 it has vanished in the mist and what we have now is:

“the re-hearing must proceed so that the truth, whatever it turns out to be, can be ascertained, finally and definitively, in the light of all the evidence now available.”

I am very troubled by this. My concerns about the weight the ‘balance of probabilities’ is often asked to bear was explored in the discussions had by The Transparency Project, regarding the Ellie Butler case. I pointed out that to attempt to ‘exonerate’ someone on such a low standard of proof was unwise. I appreciate that findings must be made and must be considered definitive. But to go further and chase such findings as ‘exoneration’ and ‘the TRUTH’ is asking far, far too much of the balance of probabilities.

The Judgment and some of the arguments have a curious, naive air. That this rehearing will find The Truth, which will be crucial to X as he or she grows. X NEEDS an ‘accurate narrative’ of how his or her adoption came about. Seriously? How many of us have an ‘accurate narrative’ of our formative years. How many different choices, chances, perspectives, denials, hopes, dreams, fantasies and delusions have gone into making us who we are? Who is naive or arrogant enough to think they know The Truth?

I therefore do not accept that a fact finding hearing is a way to unmask the ultimate ‘truth’. However, I accept there must be some way of dealing with disputed allegations and identifying the agreed facts which will inform any decision made about the child’s welfare. Regardless of any unease about the process, you will arrive at something which from then on the court (and everyone else you have dealings with) must accept as objectively true. If you don’t prove your allegations, they are treated as never having happened. 

So what happens if people are arguing about the need for a finding of fact? This can be a really serious and important issue in cases involving allegations such as violence or sexual abuse. The police may have decided to take no further action, if they and the CPS think it unlikely to get a conviction in a criminal court – which operates to a much higher standard of proof.  

But the adult who is accused wants to be part of the chid’s life. How should the family court approach these cases?

The Family Procedure Rules 2010. 

We start here. The ‘over-riding objective’ of the Family Procedure Rules is to deal with cases justly. 

Dealing with a case justly includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c) ensuring that the parties are on an equal footing;

(d) saving expense; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

Rule 1.4(a)(c)(i) provides that, in furthering the overriding objective by actively managing cases, the court should decide promptly which issues need full investigation and which do not.

Rule 4.1(2)(l) permits the court, in the exercise of its general powers of management, to exclude an issue from consideration. 

Case law

It is ultimately a matter for the court’s discretion as to whether a finding of fact is needed. The court decides what facts are necessary to be found and the court may disagree with any party’s perception.  You can appeal against such a case management decision but the time limits are shot and strict. 

The authorities mirror the overriding objective and the relevant considerations can be summaries as: 

  • The interests of the child (which are relevant but not paramount)
  • The time that the investigation will take
  • The likely cost to public funds
  • The evidential result
  • The necessity or otherwise of the investigation
  • The relevance of the potential result of the investigation to the future care plans for the child
  • The impact of any fact finding process upon the other parties
  • The prospects of a fair trial on the issue
  • The justice of the case.

McDonald J at said at 242 in Re P (Sexual Abuse – Finding of Fact Hearing) [2019] EWFC 27

The fact that the complainant children have made allegations of sexual abuse does not create a rebuttable presumption that the allegations are likely to be true. An allegation is only an allegation, and the burden remains on the local authority to prove that the allegations made by the children are established to the requisite standard of proof

Other relevant cases are:

Re G (A Minor) (Care Proceedings) [1994] 2 FLR 69

Stockport Metropolitan BC v D [1995] 1 FLR 873 

Re B (Agreed Findings of Fact) [1998] 2 FLR 968 

Re M (Threshold Criteria: Parental Concessions) [1999] 2 FLR 728 

Re D (A Child) (9 August 2000) 

Lincolnshire County Council v CB & Ors [2021] EWHC 2813 (Fam) (21 October 2021) – short examination of the relevant law and principles; decided that a 20 day finding of fact was not necessary.

In a case involving allegations of sexual abuse, the court will look carefully at the credibility and reliability of the allegations and in particular if there has been compliance with best practice over interviewing children. There is a good examination of this in Re P above, which notes that allegations of child sex abuse create’ particularly acute forensic difficulties’ for the family courts.

Interventions by well meaning adults can often corrupt a child’s evidence beyond rescue and it is very important to adhere to the good practice around ‘Achieving Best Evidence’. Many children are susceptible and wish to please adults – they may end up saying what the adult wants to hear.

It is essential that clear and contemporaneous records are kept of what a child says, but a child should not be subject to repetitive questioning. 

Getting it wrong in a case of child sex abuse has really serious consequences as Re P noted:

The consequences of the court reaching the wrong conclusion in respect of an allegation of child sexual abuse include a child being returned to a position of danger or, conversely, a child being deprived of a family that is, in fact, perfectly safe.  In the circumstances, when determining whether sexual abuse has taken place and, if so, who is responsible for perpetrating that abuse, it is vital that the court remain acutely conscious of the forensic difficulties outlined above.  As Holman J observed in Leeds City Council v YX & ZX (Assessment of Sexual Abuse) 2008 EWHC 802 (Fam) the task of the court in cases of this nature is not so much akin to putting together a single jigsaw puzzle in which all the pieces are present, but rather:

“If the jigsaw metaphor is helpful at all, then, in my view, it is important to think of a pile of jigsaw pieces in which pieces from more than one jigsaw have been muddled up. There may be pieces which, on examination, do not fit the jigsaw under construction at all, but which require to be discarded or placed on one side.”

Knowles J considered the relevant legal factors to decide whether to discontinue with a fact- finding hearing in Re X (Care Proceedings: Jurisdiction and Fact Finding) (Rev 1) [2020] EWHC 2742 (Fam) – see Para 79- 82

He cited with approval Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489,  where Munby LJ (as he then was) distinguished family proceedings from civil proceeding in this way (paras [14] –[15]):

“[14] … But these are not ordinary civil proceedings, there they are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as His Honour Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.

[15] The judge in such a situation always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage to the children in doing so, then the enquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further.“

Conclusions

As with so much in family law, you need to deal with the case before you. Previous authorities can guide you and provide a useful checklist of what you need to be thinking about, but they cannot make the decision for you. Different people may reasonably hold different views about the importance or need for a finding of fact and it is up to the Judge to decide. The courts are motivated to avoid separate findings of fact as they cause delay and may prefer to deal with findings of fact and welfare issues at one composite final hearing, even if this does mean preparing the case on an ‘either/or’ basis.

Clearly, the more serious the allegations, the more recently they happened and the greater the kind of involvement in the child’s life the accused adult wants to have, the greater the need for a finding of fact. 

And never forget, once those findings are made, you are stuck with them, unless you can successfully appeal or persuade the court to grant a re-hearing.

Case law and guidance on remote hearings

St Johns Chambers Family Forum May 14th 2020
Case law and guidance on remote hearings

See also this post for further links to commentary, case law and guidance


Sarah Phillimore

Introduction


Our ways of working, overnight changed dramatically. No one has ever faced this situation before.

As the Nuffield Family Justice Observatory reported on May 6th 2020 (and see their follow up report in September 2020)

In the two-week period between 23 March and 6 April 2020 audio hearings across all courts and tribunals in England and Wales (not only in family courts) increased by over 500%, and video hearings by 340%.

And of course there has been guidance upon guidance and guidance about guidance, which in different circumstances may have represented heaven for many lawyers as we argue about the precise meaning of this word in this context.

But I imagine that for most of us, this is a situation which is extremely stressful and even frightening – we are being asked to get to grips with brand new technology, worry about how our clients will participate and keep on top about how guidance is being interpreted in the courts.
So I am hopefully going to provide a useful aide memoire to the most significant recent guidance and cases and in so far as I can, extract some general principles to use as a starting point in your individual cases.

Always remembering of course that family cases even pre lockdown threw up an infinite variety of factual circumstances – case law is a guide and rarely ever the answer.

Summary of fundamental principles/checklist

THE ESSENTIAL QUESTION – how will you secure the overriding objective and compliance with Articles 8 and 6?

Your obligation is to act to process cases efficiently but justly. Often these two key principles are in direct tension.

You must assess the case in front of you. Guidance is not diktat or straight jacket. No one feature acts as a veto or a compulsion. Some cases are very well suited to remote hearings – short directions hearings for e.g. But the longer the time estimate and the more complicated the issues, the more important your assessment about whether or not fairness is being compromised.

If it helps, divide your assessment into stages.

The stages of your assessment


There will clearly be overlap between many categories but the ‘check list’ school of thought appears to guide against hasty and wrong decision making.

  1. Can the proceedings be conducted remotely? If ‘no’ matter ends there.
    a. Do the parents have access to necessary technology and a space to give evidence in private?
    b. Are there ‘hybrid’ arrangements that might work, i.e. some parties meeting in another location?
    c. Who is setting it up? On what platform? Can all access it? NB There is a real difference between a telephone and a video hearing – note para 35 CoA re B
    d. How will parents access the bundle?
    e. Will necessary assessments be completed in time? – see Government guidance on managing risks for social workers etc.
  2. Jurassic Park Principle: Should the proceedings be conducted remotely?
    a. Identify your ‘magnetic factor’: consider the factors in paragraph 9 of Re A (Children) (Remote Hearing: Care and Placement Orders [2020] EWCA Civ 583
    b. No one factor is a veto or compulsion – see para 11 in CoA re A and para 24 in Re Q. But if ALL the parties are against it, court will have to give cogent reasons to proceed – para 61 CoA re A.
    c. All cases involving children re urgent – but some are more urgent than others. Are there immediate safety risks for a child?
    d. What are the particular risks and benefits of an adjournment for the child?
  3. Plan effectively – If going ahead, what do you need on the ground?
    a. Ground rules in place to ensure effective participation and back up plans if technology fails for some or all.
    b. How are lay clients going to communicate with lawyers if not in the same room?
    c. Advocates meetings, pre-hearing discussions and focused case summaries
  4. And remember – inconsistency and uncertainty is inevitable in such changing times. See para 34 of re Q. There is no golden ‘right answer’ to be discovered. All you can do is show your workings and demonstrate that you have given sufficient thought to the relevant issues. Life can only be understood backwards – but it must be lived forwards.

Synopsis of guidance and case law – up to date as of 12th May 2020

This is not exhaustive. I may have missed something! But these seem to be the key cases and guidance.

19th March 2020
COVID 19 National guidance for the family courts

Over arching aim – ‘Keep Business Going Safely’
Situation will change rapidly – each case must be decided on case by case basis

23rd March 2020 (and updated)
‘The remote access family court’
Mr Justice MacDonald.
Quotes President:
Can I stress, however, that we must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1 ‘the overriding objective’], part of which is to ensure that parties are ‘on an equal footing’ [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.

9th April 2020
On 9 April 2020, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division sent a message to all circuit judges and district judges concerning remote working during the ‘lockdown’ If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing; if parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the ‘green light’ to conduct a hearing in this way;
Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely;
Video/Skype hearings are likely to be more effective than telephone. Unless the case is an emergency, court staff should set up the remote hearing.
Parties should be told in plain terms at the start of the hearing that it is a court hearing and they must behave accordingly.
In Family Cases in particular:
Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted remotely;
Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;
In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.

6th May 2020
Nuffield Family Justice Observatory Rapid review – a handy over view of what’s gone well and badly between with about 1K responses from judges, lawyers, parents and social workers.

Notes fundamental concerns of approx. 1,000 participants
• Difficulties arising from lack of face to face contact
• Difficulty in ensuring full participation in a remote hearing
• Concerns about lack of preparation for hearing
• Issues of confidentiality and privacy – particularly hard for parents in the same house as the children subject to proceedings and for professionals sharing home with family
• Concerns relating to the removal of new born babies
• Concerns about whether or not cases are adjourned – carries risk and benefit .
• Other factors relating to fairness – such as face to face assessments etc.
• Think about your platform – hostilities are less easy to mange over the phone
• Impact of remote hearings on health and wellbeing
• For some hearings, remote working provides greater efficiency

6th May 2020 Guidance for children’s social care services

[and see The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 ]

It is for all those delivering or with an interest in children’s social care, including local authorities, social care trusts, those who have corporate parenting responsibilities, all adoption agencies, independent fostering agencies and children’s homes, and local safeguarding partnerships who work together to safeguard and promote the welfare of all children in their area. It is also for social workers, residential care providers and staff, and those with safeguarding responsibilities.
We expect that the sorts of circumstances where local authorities, local safeguarding partners and providers may want to make use of the additional flexibility that the secondary legislation amendments provide include:
• where staff shortages, due to sickness or other reasons, make it difficult or impossible to meet the original requirements
• where making use of flexibilities to take a different approach is the most sensible, risk-based response in light of other demands and pressures on services; this might involve focusing services on those most at risk
• where there is a consequential reason to make use of flexibilities, for example due to limited capacity in other providers or partners making it difficult or impossible to comply with the original requirements

Contact issues
We expect that contact between children in care and their birth relatives will continue. It is essential for children and families to remain in touch at this difficult time, and for many children, the consequences of not seeing relatives would be traumatising.
Contact arrangements should therefore be assessed on a case by case basis taking into account a range of factors, including the government’s social distancing guidance and the needs of the child. Where it may not be possible, or appropriate, for the usual face-to-face contact to happen at this time and keeping in touch will, for the most part, need to take place virtually. Where face-to-face contact is not possible, we would encourage social workers and other professionals to reassure children that this position is temporary and will be reviewed as soon as it is possible to do so.
We expect the spirit of any court-ordered contact in relation to children in care to be maintained and will look to social workers to determine how best to support those valuable family interactions based on the circumstances of each case.

CASE LAW

16th April 2020

Re P (A Child Remote Hearing)
[2020] EWFC 32

FACTS: Long running proceedings involving girl now aged 7 and allegations of FII. 15 day final hearing due.
Emphasises importance of primary purpose, to deal with cases justly – which requires parties to be on ‘equal footing’
President clear this case was NOT suitable for remote hearing. Magnetic factor was need for Judge to assess the mother – not just as she gave evidence but in her reaction to the evidence of others. (but note disagreement about forensic value to be attached to this in Re Q below)

COMMENTARY: Para 8. The ‘Jurassic Park principle’
Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.

Para 24 Each case is likely to involve a wide range of factors and some will be in tension


The need to maintain a hearing in order to avoid delay …is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working.

30th April 2020

Re A (Children) (Remote Hearing: Care and Placement Orders)
[2020] EWCA Civ 583

FACTS: Case involving the youngest 4 of 6 siblings. The plan was for 2 to remain in long term foster care and for youngest two to be adopted. Judge determined that case was suitable for ‘hybrid’ final hearing in face of parents’ opposition. Appeal allowed and hearing fixed vacated.
Para 49 appeal succeeded on following basis
• Mr A’s inability to engage adequately with remote evidence (either at home or in the courtroom);
• The imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the judge;
• The need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing.

COMMENTARY
‘Cardinal principles’
• The decision about holding a remote hearing is a case management one for the Judge
• Guidance is just that – guidance
• Guidance may have a temporary nature and circumstances will continue to develop

Para 11:

We wish to state with total clarity that our decision does not mean that there can be no remote final hearings on an application for a care order or a placement for adoption order. Neither is our decision to be taken as holding that there should be no ‘hybrid’ hearings, where one or more party physically attends at a courtroom in front of a judge. The appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance indicated above to the unique circumstances of the case.

Magnetic factor here was ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair.

Para 9 – likely factors to influence decision

  1. The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
  2. Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;
  3. Whether the parties are legally represented;
  4. The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;
  5. Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
  6. The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;
  7. The scope and scale of the proposed hearing. How long is the hearing expected to last?
  8. The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;
  9. The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
  10. Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.
    Para 61: Court endorsed LCJ’s message of 9 April at sub paragraph (a): ‘If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing’. Whilst in the present case it is true that the Children’s Guardian did not oppose proceeding with the planned hearing, all of the other parties, including the local authority, did. In such circumstances, when the applicant local authority itself does not support a remote contested final hearing, a court will require clear and cogent reasons for taking the contrary view and proceeding to hold one.

30th April 2020

[2020] EWCA Civ 584
Re B (Children) (Remote Hearing: Interim Care Order)

FACTS: A 9 year old boy was removed from his grandmother’s care and placed in foster care following a telephone hearing on 3rd April.
CoA agreed the order should not have been made and child returned to grandmother.

COMMENTARY – The problems here arose because the local authority changed its care plan in the middle of a remote hearing and because an application that was not urgent was treated as if it was. A hearing that had come about to regulate the position of his older sister took on a momentum of its own; the Recorder who made the wrong decision had, by the time he made it been working for over 10 hours remotely, and facing a stream of documents electronically.
The LA changed their care plan on the basis of recommendations from the Guardian who wrongly saw the situation as ‘urgent’ and had not carried out a balanced welfare analysis.

Para 34 – the remote hearing was part of the problem:

Our further observation is that, no doubt partly because of the exigencies of the remote process, there was a loss of perspective in relation to the need for an immediate decision about Sam. This was a classic case for an adjournment so that a considered decision could be taken about removal, if indeed that option was going to be pursued after reflection. An adjournment would have enabled the parties and the court to have all the necessary information. As it was, crucial information was lacking and its absence was overlooked by the court.

Para 35 – there is a real distinction between a telephone and a video hearing

There is a qualitative difference between a remote hearing conducted over the telephone and one undertaken via a video platform. If the application for an interim care order for Sam had been adjourned, it may well have been possible for the adjourned hearing to have been conducted over a video link and that single factor might, of itself, have justified an adjournment in a case which, in our view, plainly was not so urgent that it needed to be determined on 3 April

5th May 2020

[2020] EWHC 1086 (Fam)
A Local Authority
High Court

FACTS: Involved a 4 year old child whose sister had died at home and was later found to have suffered 65 fractures. Case had already been significantly delayed and child in foster care.
The court heard the medical evidence over 5 days then adjourned to consider if hearing should continue via Zoom to hear the lay parties. The father also sought an adjournment on grounds of mental health issues which were unrelated to the issue of remote hearings.

COMMENTARY: Judge referred extensively to Re P and CoA authorities. Did not share the President’s view about the importance of direct observation of lay witnesses:

Para 27: “…in my own view is that is not possible to say as a generality whether it is easier to tell whether a witness is telling the truth in court rather than remotely. It is clear from Re A that the Court of Appeal is not saying that all fact finding cases should be adjourned because fact finding is an exercise which it is not appropriate to undertake remotely. I agree with Leggatt LJ that demeanour will often not be a good guide to truthfulness. Some people are much better at lying than others and that will be no different whether they do so remotely or in court. Certainly, in court the demeanour of a witness, or anyone else in court, will often be more obvious to the judge, but that does not mean it will be more illuminating.”

Relied in factors in re A at [9] and determined that hearing should go ahead – but decision may have been different if parents were trying to follow proceedings only via a phone screen.

6th May 2020
Re Q
[2020] EWHC 1109 (Fam)

FACTS: Appeal against refusal to continue remote hearing with regard to a girl aged 6 who was subject of long running private law proceedings. Allegations of sexual abuse raised by M against F; clear finding that this did not happen and in March 2020 expert advised that child should move to live with F. The final hearing was set for April 22nd. The DDJ initially agreed it must continue but two days later reversed that decision after reading the decision in re P again and considering the very serious issues at stake in this hearing. The father appealed –it went before the President because of ‘perceived need’ to clarify the decision in Re P.

Appeal allowed and matter remitted to DDJ to determine how and when the hearing was to take place.

COMMENTARY: Para 24 Neither the guidance that has been issued, nor the decision in Re P, establish a veto to the holding of a remote hearing where a parent objects, or expert evidence is to be called.
The appeal succeeded not because of a failure to interpret re P correctly but because of a failure of process and error in approach re the welfare issue.
The Judge was concerned that the father had raised new issues in his position statement which might change the temperature of the final hearing – but had not raised this before counsel. Nor did the Judge explain why her welfare analysis shifted so starkly in only two days.

Para 34 – a degree of inconsistency and uncertainty is inevitable:
…each judge or magistrate must consider the individual case before the court and determine whether or not it should proceed remotely in whole or in part. It is to be accepted that a consequence of this approach is that different courts may take a different view on similar cases and that this may inevitably give rise to some inconsistency from court to court, or even from judge to judge.

Re D-S (Contact with Children in Care: Covid-19) [2020] EWCA Civ 1031

28th July 2020

This was a successful appeal against a decision of HHJ Lea to refuse a mother’s application for direct contact to her children (who were being cared for by the Local Authority) as the lockdown restrictions eased. Appeal allowed.


Useful article on how to identify risk of infection


Indoor spaces, with limited air exchange or recycled air and lots of people, are concerning from a transmission standpoint. We know that 60 people in a volleyball court-sized room (choir) results in massive infections. Same situation with the restaurant and the call center. Social distancing guidelines don’t hold in indoor spaces where you spend a lot of time, as people on the opposite side of the room were infected.
The principle is viral exposure over an extended period of time. In all these cases, people were exposed to the virus in the air for a prolonged period (hours). Even if they were 50 feet away (choir or call center), even a low dose of the virus in the air reaching them, over a sustained period, was enough to cause infection and in some cases, death.
Social distancing rules are really to protect you with brief exposures or outdoor exposures. In these situations there is not enough time to achieve the infectious viral load when you are standing 6 feet apart or where wind and the infinite outdoor space for viral dilution reduces viral load. The effects of sunlight, heat, and humidity on viral survival, all serve to minimize the risk to everyone when outside.
When assessing the risk of infection (via respiration) at the grocery store or mall, you need to consider the volume of the air space (very large), the number of people (restricted), how long people are spending in the store (workers – all day; customers – an hour). Taken together, for a person shopping: the low density, high air volume of the store, along with the restricted time you spend in the store, means that the opportunity to receive an infectious dose is low. But, for the store worker, the extended time they spend in the store provides a greater opportunity to receive the infectious dose and therefore the job becomes more risky.
Basically, as the work closures are loosened, and we start to venture out more, possibly even resuming in-office activities, you need to look at your environment and make judgments. How many people are here, how much airflow is there around me, and how long will I be in this environment. If you are in an open floorplan office, you really need critically assess the risk (volume, people, and airflow). If you are in a job that requires face-to-face talking or even worse, yelling, you need to assess the risk.
If you are sitting in a well ventilated space, with few people, the risk is low.
If I am outside, and I walk past someone, remember it is “dose and time” needed for infection. You would have to be in their airstream for 5+ minutes for a chance of infection. While joggers may be releasing more virus due to deep breathing, remember the exposure time is also less due to their speed.

While I have focused on respiratory exposure here, please don’t forget surfaces. Those infected respiratory droplets land somewhere. Wash your hands often and stop touching your face!

As we are allowed to move around our communities more freely and be in contact with more people in more places more regularly, the risks to ourselves and our family are significant. Even if you are gung-ho for reopening and resuming business as usual, do your part and wear a mask to reduce what you release into the environment. It will help everyone, including your own business.

Limits to Self Identification: The Protection of Children

This is a post by Sarah Phillimore.

I was interested to read the decision of Re S (Parental Alienation: Cult), a judgment handed down on April 29th 2020. It covers so much of what has been interesting and challenging for me throughout my career. The damage that even loving parents can do to their children, and the particular harm caused by a parent who puts their own right to self identification above the child’s welfare.

This is a case about a mother who was a member of a cult and a father who wanted their daughter to live with him because he was so worried about her exposure to the cult. His application was refused and the child’s time was divided between the parents; he appealed.

The first Judge to hear the case agreed that the mother was a member of a cult organisation founded in Australia in 1999 by Serge Benhayon, called ‘Universal Medicine’. The mother in turn cross appealed, denying she was a cult member and sought to reduce the amount of time the child spent with her father, relying on historic and repeated allegations that the father had sexually abused the child and he was coercive and controlling.

The father’s appeal ultimately succeeded.

The judgement offers a helpful analysis of the law relating to the weight to be accorded freedom of belief when that conflicts with a child’s welfare. I think it poses some interesting further questions about what areas courts ought to be investigating when faced with other parental systems of belief that are controversial or deny material reality – such as the growing insistence in some quarters that biological sex is a myth and to attribute it to a child is some kind of hateful bigotry.

The law concerning freedom of belief

The court first needed to examine the law concerning freedom of belief. The first Judge carefully surveyed the law’s treatment of sects, cults and minority groups in cases involving children. He recognised that the court had to approach this with caution: the court should not become unnecessarily involved with criticising minority groups and controversial beliefs. The court should only be concerned with the welfare of the child.

The leading decision around religious upbringing is Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233; [2013] 1 FLR 677. This case involved the schooling of children from an ultra-orthodox Jewish background, but the comments of Munby LJ apply equally to belief systems that are not avowedly religious. The Judge is not there to weigh one religion against another and all are entitled to equal respect so long as they are ‘legally and socially acceptable’. The court must recognise Article 9 of the European Convention:

“1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

From this, we can see the right to religious freedom is not absolute but qualified in two ways. Your religion or philosophy is protected only if worthy of respect in a democratic society and not incompatible with human dignity – see Campbell and Cosans v United Kingdom (No 2) (1982) 4 EHRR 293. Second, how you ‘manifest’ that religion or philosophy – such as in worship or other observance – can be restricted if necessary to protect the rights and freedoms of others.

It is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs; the State must be neutral and impartial – see  Moscow Branch of the Salvation Army v Russia (2007) 44 EHRR 46.

But if a religious practice or belief has negative consequences for a child’s welfare, the court has the power to restrict manifestations of that practice or belief – and in the most extreme cases, remove the child from the care of the parent who will not change their views.

In summary, the court must respect the mother’s beliefs to the extent that the teachings of Universal Medicine are worthy of respect in a democratic society, but the child’s welfare remains the paramount consideration and may override the mother’s rights.

The law concerning parental alienation

The Appeal Court then considered the law around parental alienation. The Court rejected any attempt to enter the debate about labels, agreeing with Sir Andrew McFarlane (see [2018] Fam Law 988) that where behaviour is abusive, protective action must be considered whether or not the behaviour arises from a syndrome or diagnosed condition. The Appeal Court relied upon the CAFCASS definition of alienation.

“When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”

Such manipulation does not need to be deliberate or malicious. It is the process that matters, not the parent’s motive.

The Appeal Court commented:

Signs of alienation may include portraying the other parent in an unduly negative light to the child, suggesting that the other parent does not love the child, providing unnecessary reassurance to the child about time with the other parent, contacting the child excessively when with the other parent, and making unfounded allegations or insinuations, particularly of sexual abuse.

These cases can be very difficult but the courts are under a positive obligation imposed by Article 8 of the ECHR, to strive to find some resolution, particularly as the passage of time often leads to a determination of the matter by default, as a child simply hardens negative views towards the absent parent.

As McFarlane LJ said in Re A (Intractable Contact Dispute: Human Rights Violations) [2013] EWCA Civ 1104; [2014] 1 FLR 1185 at 53: 

The conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. But, courts and judges do have a responsibility to utilise such substantive and procedural resources as are available to them to determine issues relating to children in a manner which affords paramount consideration to the welfare of those children and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”

The courts have to keep the child’s medium to long term welfare in mind, as the temptation may well be to take the short term path of least resistance as less stressful for everyone. However the court must not wait for serious harm to be done before taking appropriate action.

The Facts

The parents separated in 2012 when the child was about a year old, so at the time of the appeal hearing, she was aged 9 years.

The father moved out but continued to spend time with his daughter on alternate weekends. About the same time as the separation the mother became a ‘student’ of ‘Universal Medicine’.

The Judge did not need to decide if this was a ‘religion’, but found it was a ‘belief system’ to which the mother was strongly aligned. The founder of this system, Serge Benhayon, was described by an expert on cults, the Rev Dr David Millikan, in this way:

Benhayon hovers over his followers with a myriad of pronouncements about how they should behave. His teachings, cloaked in the robes of sanctity, prescribe what food they can eat. He has strict rules on clothes, work, physical exercise, how to speak and move, how sex works (he encourages orgasms like a hermaphrodite), how to treat children, how to dispose of their money, what books to read, who to talk to, what media to read or watch, how to treat family and friends who complain about their discipleship. Piece by piece their lives are recast in the mode of Benhayon himself.”

As is common with cults, its members will lose the capacity to question what they are taught and will consider those outside the ‘closed system’ as unable to understand. Relationships with family or friends who aren’t in the cult becomes very difficult, or are severed entirely.

The father was particularly concerned by the attitude of the cult towards food, collecting information which showed what categories of food were allowed or disapproved of by Universal Medicine. The categories include “Fiery foods”, “Pranic foods” (said to hinder the flow of the light of the soul and the body, including all wheat and grain and dairy milk … ) and “Evil foods”.

Other concerning cult practices included “Esoteric ovary massage” which is said to offer women “a true healing to deconstruct the emotional inputs and blockages that may lay suppressed in the ovaries, consequence to the many experiences a woman has endured throughout her life that have had the effect to the relationship she holds with herself”. There is apparently no evidence in support of any of the cult’s practices which were ‘developed’ by the cult founder Benhayon, described as a ‘former bankrupt tennis coach from New South Wales’.

When his daughter was three, the father became increasingly concerned about her restricted diet and the influence of this cult upon the mother’s parenting. The local authority assessed and found a good relationship between mother and child. The social worker thought the mother’s ideas were somewhat ‘fixed’ but did not pose a safeguarding concern.

The father applied for a child arrangements order so that his daughter would share time equally between her parents and a specific issue order so that she would not have any further dealings with Universal Medicine.

The mother objected, and asserted that that Universal Medicine was not a cult but rather “an award-winning complementary healthcare organisation bringing many benefits to its adherents, herself included.”

“Serge provides the absolute reflection of integrity and truth,and of unwavering love for all in service untiringly andunceasingly… No greater role model have I ever met.”

CAFCASS reported in April 2017 and recommended that the child should not attend any Universal Medicine events until she was old enough to make informed choices, reporting concern that the child would become segregated and that would impact on her formation of relationships.

The parents were able to agree shared care and the mother was prohibited from taking the child to UM events before she was 16, imposing any teachings or doctrines or initiating discussions about UM.

By July 2018 the father was concerned that the mother was not sticking to this agreement and in fact the influence of UM over their child had increased.

In October 2018 an Australian court [Benhayon v Rockett (No 8) 2019 NSWSC 169] found that Universal Medicine was a socially harmful cult and Benhayon to be a sexually predatory charlatan who had assaulted female students and had an indecent interest in children as young as ten.

The father therefore issued his application for his daughter to come and live with him and have no further involvement with the cult. The father set out a schedule of allegations against the mother. In May 2019 the court refused the father’s application for a psychological assessment of the child but ordered a report from an Independent Social Worker. The matter was listed for a three day final hearing in November 2019.

The father said that he did not trust the mother to distance herself from Universal Medicine and although their daughter would be devastated to spend less time with her mother, to remove her from the mother’s care would be the lesser of two evils.

The mother rejected the father’s criticisms of Universal Medicine and alleged he was coercive and controlling. The Independent Social Worker found that the mother’s involvement was harmful to the child, in terms of restricted diet, behaviour and beliefs. She recommended that the child live with her father and have supervised contact with her mother.

The mother then changed her legal team and instructed her new lawyer to strike out the father’s application altogether on the grounds that any transfer of residence would breach the mother’s Article 8, 9 and 10 rights. This application was dismissed and the matter continued to trial. The mother asserted that the Australian judgment was nothing to do with her and it was discriminatory to require the child to give up her ‘thoughts and conscience’.

The Judge’s Decision and the Appeal

The Judge rejected any allegation that the father was coercive or controlling. He was motivated by concern for his child’s welfare. He thought the mother seemed genuine in her agreement to dissociate herself from Universal Medicine if it meant her daughter would stay with her.

Both parents loved their daughter and could meet her practical needs. The Judge concluded that the order which would best meet the child’s welfare was a return to the arrangements in 2017, after weighing up the harm presented by Universal Medicine against the distress that the child would feel if spending less time with her mother. The court was persuaded that the mother was ‘sincere and genuine’ in her assertions that she would ‘modify’ her thinking about Universal Medicine.

The father appealed, on the basis that the Judge had given inadequate reasons for not following the recommendations of the ISW and that by January 2020 it was clear that the mother was backtracking from her undertakings and that the child arrangements order had already been wholly disrupted.

The mother responded to seek a reduction of the father’s time with the child, on the basis that historic allegations of sexual abuse had not been properly investigated and that the mother could not be asked to give up her her beliefs.

The Court of Appeal rejected the mother’s cross appeal and found that the Judge had been entirely correct in his evaluation of the facts and that Universal Medicine was a harmful cult. What was at issue here was his evaluation of how this applied to the child’s welfare and what orders should be made. It was clear that the mother was not going to stick to her undertakings. She had raised issues of sexual impropriety against the father since 2015. This supported the father’s case about parental alienation but had not been considered by the Judge.

The court therefore decided to give the mother one last chance to demonstrate that she would reject any adherence to the cult, failing which the child would move to live with her father. The final hearing was listed for July 2020.

EDIT On 15th July 2020 the court decided that the child should move immediately to her father’s care, as the mother was not able to show that she had made the necessary break with the cult. See Re S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam)

Conclusion

This case is a fascinating example of parental alienation but also a very useful examination and summary of the authorities relating to freedom of religious or philosophical belief and how rights can exist in serious tension with one another.

The mother has a right to religious freedom. But equally her daughter has a right to a healthy diet, to grow up to make her own choices and to have a relationship with her father. The court found that the child’s right to be free of a ‘harmful and sinister’ cult outweighed the mother’s right to continued adherence to it. However the mother would be given one last and short chance to show she could break away from the cult and promote her child’s welfare.

I wonder what parallels can be drawn between this case and the continuing debate about ‘transgender children’. Is there really much distinction between a harmful cult that puts food into categories (including ‘evil’) and promotes ‘esoteric ovary massage’ and a belief system that holds that biological sex does not exist but rather we can chose from infinite ‘genders’?

Both are products of adult minds. Neither have any foundations in fact. Both, if imposed on children from a young age have the potential to do harm. The welfare of the child remains the paramount consideration and that will require clear, honest and thorough weighing of a variety of factors in every such case.

Further reading

In whose best interests? Transgender Children: Choices and Consequences

No one, no issue is off the table when it comes to safeguarding

You had better make some noise – abusers will exploit bad laws and poor safeguarding