Other thoughts

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 644Director 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.

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) 

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. 

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

Competence and Collaboration in Care Proceedings

This is a post by Sarah Phillimore

I was struck in a recent case to read a very simple and powerful exposition by a psychologist of the ‘competence promoting approach’ when assessing parents, as opposed to the ‘competence inhibiting’ approach (Tucker & Johnson, 1989). I hope this psychologist will forgive me if I borrow entirely their summary of what this approach involves – I can’t name them in case that leads to jigsaw identification of the family involved.

To promote competence, the parent is enabled to be in control. Skills are developed on the basis of pre-existing strengths, rather than focusing on weakness. Parents are treated as equal partners when decisions are made about their children.

The ‘competence promoting approach’ has the following characteristics:
• Do not assume that all the problems are caused by parental mental health difficulties.
• Acknowledge environmental factors and parental coping skills.
• Do not assume a lack of nurturing skills or a limited capacity to learn new skills.
• Do not make comparative judgements about the adequacy of home-making and parenting that are informed by culturally inappropriate comparisons with norms for socially advantaged people.
• Recognise the emotional bonds between the parents and their children.
• Value the parents as people by ensuring that professional staff keep appointments, and deliver what they say they will deliver on time. This enhances rather than diminishes parental self-esteem.
• Do not manipulate parental fears about losing their child to ensure compliance.
• Do not provide a level of day to day surveillance that undermines the parents’ independence and reinforces the parents’ sense of inadequacy.
• Involve parents fully in all decisions.
• Provide intensive support at crisis points.
• Ensure that necessary and long term practical support is offered and maintained.
• Provide education and training opportunities that lead to self-reliance.
• Undertake a comprehensive check of state benefits available to the family.

I don’t think I had ever before seen this approach laid out so clearly and it was striking how difficult it was to think of cases where I could be confident that this was indeed the approach adopted by professionals in care proceedings.

I was therefore really pleased only a few days later to hear that Trevi House have now opened Daffodil House, a residential family centre based in Plymouth, Devon. Trevi House is almost unique in the UK, providing rehabilitation and parental assessment for mothers with drug or alcohol dependency issues, together with their children.

It looks like Daffodil House will be an excellent addition to what Trevi House can offer. It aims to offer a strength-based parenting assessment, to support parenst to identify what changes they need to make in order to keep their child safe. The focus is on the safety and welfare of the child, while using a psychologically informed approach in order to address often complex and longstanding problems that have had a negative impact on safe parenting.

Daffodil House adheres to the five core values of trauma informed services (Fallot & Harris, 2006). The aim is thus to provide a safe and nurturing environment for families so that the assessment is fair – whatever the outcome of the assessment, the family will have an experience of ‘transparent working’ and collaboration.

Daffodil House sets out its objectives as follows:

• To ensure that each child is protected and safe
• To put the needs and voice of the child at the heart of the assessment and care planning process
• To deliver assessments that are holistic, comprehensive, robust and timely
• To provide meaningful guidance and direction regarding the parenting capacity of parents
• To assist with decision making regarding the longer-term placement of the child
• To use effective and respected assessment tools
• To work in partnership with parents, building a relationship of trust and developing self-efficacy
• To work in effective partnership with all professionals involved in the family
• To provide a trauma responsive service that works with families using the trauma lens

I am aware of the dangers of being naive; how being ‘cheer leaders’ for parents may risk children suffering more harm for longer. But I am worried that what I usually see in care proceedings is a traumatic and brutal process that simply chews parents up and spits them out. The vast majority of parents love their children and want the best for them – but many simply just do not have the skills to make that desire a reality, due to their own longstanding traumatic experiences.

Therefore it is sad to note that Daffodil House is able to accommodate only ‘up to 5 families’. I know the old parable of the child throwing stranded star fish back into the sea – it made a difference to that star fish! But this a drop in the ocean. If we really value the most vulnerable members of our society, then this kind of provision ought to be the nationwide norm. How many of us who work in this field can say with confidence that the families that we deal with in care proceedings are approached from the basis of ‘confidence building’ as opposed to ‘confidence inhibiting’? And what do we think happens to the parents that the system leaves behind?

Please go to http://trevihouse.org/for-professionals/daffodil-assessment-centre-1 for more info or to make a referral.

Safeguarding in Schools around issues of Transition

EDIT September 2020

New Guidance has now been issued by the Department of Education; see this article for explanation.

The Safe Schools Alliance issued a press release on Wednesday 5th February 2020 to provide an update regarding the judicial review of Oxfordshire County Council’s support of the lawfulness of the Trans Inclusion Toolkit.

This was introduced with the objective of seeking to tackle and reduce LGBT bullying and ensure LGBT inclusion in schools. However, it purports to advise schools and others as to the law contained in the Equality Act 2010. Therefore it needs to get the law right.

The objectives of the Toolkit are clearly important and necessary. No child should face bullying or harassment at school or anywhere and certainly not any discriminatory treatment which relates to one of the protected characteristics in the Equality Act.

The problem arises however that there appear to be significant aspects of the Toolkit which are unlawful; in particular the guidance given concerning single sex toilets, single sex changing rooms, single sex sleeping arrangements and single sex sports.

Most tellingly, the Toolkit continually misrepresents the relevant protected characteristic of the Equality Act – ‘gender re-assignment’ – as some kind of nebulous ‘gender identity’ or ‘being trans’. Neither of these are protected characteristics.

Members of the SSAUK tried to raise and discuss their concerns about this from late 2018 – but this resulted only in the re-issue of the guidance in September 2019, that dealt with none of the concerns. Therefore an action in judicial review has become the only remedy – which is pretty dispiriting.

I have written previously about why I think this guidance, along with many others in a similar vein, risks being an unlawful diminishment of both child safeguarding and parental responsibility.

This legal challenge is one of many similar challenges to the apparently nationwide imposition of a the new orthodoxy that it is possible to change your biological sex and it that it should require nothing other than the assertion of the person who wishes to ‘change’ it.

As a disabled person who has a keen appreciation of the limits to ‘self identification’, I have written here about why I reject the assertion that biological sex can change, and written here about why I am very concerned about the implications of any such orthodoxy on the safety of women and girls.

The main objections to the guidance were summarised by Tanya Carter, a spokeswoman for SSA UK. She argues that it fails to take into account all the protected characteristics of the Equality Act 2010 and is in direct opposition to all safeguarding protocols which separate children over age of 8 and segregate by sex for reasons of safety.

In particular, it will result in schools and other educational settings being compelled to allow male pupils to share confined spaces with female pupils – without parents knowledge or permission – and allows males to take part in sports alongside females.

Tanya Carter said:

“We are concerned at the impact this guidance could have on all children, but particularly on the ability of lesbian, gay and bisexual teenagers to understand and embrace their sexual orientation. In addition, the guidance does not effectively safeguard the trans-identified students it purports to help. The misrepresentation of article 16 of the United Nations Rights of the Child removes trans-identified children from the protective processes of schools and parents working together in the child’s best interests.”

The claimant in this action is now a 13-year-old Oxfordshire girl whose identity is not revealed given her young age. Her reaction as set out in the press release is powerful:

The toolkit has a very significant impact on me as a girl. I am very surprised that the council never asked the opinion of girls in Oxfordshire about what we thought before they published the toolkit. Under these guidelines I have no right to privacy from the opposite sex in changing rooms, loos or on residential trips. Sports could end up being unsafe as I am a really small teenage girl and boys are bigger than girls. This guidance could be used in any educational establishment in Oxfordshire, which possible includes sports clubs.”

“The guidance makes me feel that my desire for privacy, dignity, safety and respect is wrong. It makes me feel sad, powerless and confused. I recently did my level 1 safeguarding course for guider training and I don’t understand how allowing boys and girls to share private spaces is okay”.

Why is this legal challenge so necessary?

These are hugely significant issues for ALL children. Children with genuine gender dysphoria need help and support. But confusion and unhappiness about one’s identity may spring from a variety of sources. It is dangerous to assume – as apparently we must now all do – that the moment a child declares a desire to ‘change sex’ that this stated desire must be supported without any examination into what underpins such a significant assertion.

It is dangerous because it seems many of those now responsible for devising and implementing safeguarding for children have apparently jettisoned its most basic and obvious principles in order to promote ‘inclusivity’ and a pathway for children of ‘affirmation’. Such a pathway, leading as it often does to medication and surgery, has very little credible evidence to support it as being in the best interests of children and worrying indications that it has the potential to do very serious – and irreversible – harm.

Refusal to allow deviation from the ‘affirmation model’ – or, even worse, to accuse those who raise concerns of some kind of ‘hate speech’, risks serious harm to children. The prescription of puberty blockers and other drugs to children is now the subject of a separate legal challenge to the Tavistock and Portman NHS Foundation Trust AND investigation by the NHS

It is very alarming for me to note that so many seem so invested in protecting the purity of the affirmation message that they will resort to very determined efforts to silence and intimidate any who speak up against it.

I note with particular concerns the recent actions of Social Work England – the new social work regulator – who are ‘investigating concerns’ against two senior social workers who have expressed their views about child safeguarding and issues of transition.

When even those, whose entire professional careers have been dedicated to promoting and protecting the rights of children, may not speak without fear of that career being ended – is a pretty stark indicator of just how bad things have become.

I hope that the various legal actions, now either pending, awaiting judgment or appeal will assist to bring some clarity back into the debate and some accurate representation of the law.

We all want the same thing – for children to be safe. To have the best chance they can have, to be the best adults they can be.

For some – this may mean a process of transition. For others – I suspect the majority – they need access to support, therapy, counselling and an environment were they are protected against bullying or other forms of harassment. And some children need to have respect shown to their sex based rights, to protect their safety and dignity.

But above all – children need honesty from the adults charged with keeping them safe. And safeguarding assessments based on actual risks and harms, not on adult wishful thinking.

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

This is a post by Sarah Phillimore

And what are the dangers for children of ignoring this?

TLDR:

However intelligent or articulate a child is, they do not necessarily have the same ability as adults to make decisions, particularly those with long term consequences. The capacity of any child under 16 to make decisions about medical or surgical treatment has to be carefully analysed.

Any guidance for adults working with children which ignores or downplays the importance of both Gillick competence and parental responsibility is probably unlawful and probably harmful to children and should be challenged, for all the reasons that I set out below.

Safeguarding Children.

Where adults and children interact, ‘safeguarding’ must be a key consideration. Sadly, some adults are dangerous to children and some children may wish to take risks which will hurt them. As a general point, safeguarding of children demands robust risk analysis. Failures in child safeguarding usually involve an inadequate risk assessment which has failed to either understand or share relevant information. Risks approached on the basis of untested assumptions are unlikely to be properly assessed.

The welfare of children is generally held to be the paramount concern for anyone making decisions about or on behalf of a child. However, ‘paramount’ does not mean ‘exclusive’ – the legal rights of others may need to be considered alongside the child’s welfare.

Any guidance which asserts that it promotes safeguarding of children in the context of choices children aspire to make, ought to be clear about two very important issues:
a. ‘Gillick competence’
b. Parental responsiblility.

If the guidance isn’t clear, that is a red flag that the author of any such guidance either doesn’t care about or doesn’t understand the need to protect children.

Gillick competence

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 is a very important concept in the area of consent to surgical treatment – if a doctor doesn’t have a valid consent from either a parent or the child, or a court order, the doctor could be guilty of a criminal offence if he or she goes on to operate on a child.

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 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”

‘Gillick competence’ 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’?

The case also gave rise to the ‘Fraser guidelines’ which refer specifically to consent to contraceptive treatment and advice – some argue that it’s important to keep the two separate (see this post from the Quality Care Commission) but I suggest that there doesn’t seem much merit now in keeping advice and treatment around sexual matters separate from a child’s ability to consent to other forms of treatment.

See also Axon, R (on the application of) v Secretary of State for Health & Anor [2006] EWHC 37 (Admin) where the applicant sought to challenge the lawfulness of guidance which allowed doctors not to inform parents that children under 16 were seeking advice or treatment about sexual matters.

The Judge affirmed and was bound by the (then) House of Lords in Gillick and concluded that doctors did not have to tell parents provided they were satisfied that the child understood ALL aspects of the advice, could not be persuaded to tell his or her parents and would be at risk of harm if the treatment wasn’t provided (see para 154) .

What information should be given a child by a health professional?

The case of Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 deals with what risks about birth should have been shared with an adult patient – but is a useful discussion of the general parameters of what can be meant by ‘informed consent’ – patients do not have the medical knowledge of doctors, may not know what questions to ask. Doctors have a duty to reveal and discuss ‘material’ risks with a patient.

At para 77 the court comments approvingly on 2013 guidance to doctors:

Work in partnership with patients. Listen to, and respond to, their concerns and preferences. Give patients the information they want or need in a way they can understand. Respect patients’ right to reach decisions with you about their treatment and care.”

Doctors need to take even more care with children under 16 as it cannot simply be assumed they have capacity to make decisions; this must be examined in light of their age and understanding.

The two often go hand in hand with neuro typical children. Some teenagers may lack capacity entirely or in most areas following brain injury or learning disability, as set out in the Mental Capacity Act, Decisions then would need to be made by adults for them, regardless of their chronological age.

Most – but not all – 14 year old children would be ‘Gillick competent’ to make decisions across a wide range of issues because their understanding will increase along side their chronological age. Most – but not all – 7 year old children would not be able to give informed consent to anything much beyond what they would like to eat or what clothes they would like to wear.

Determining ‘Gillick competence’ is therefore fact specific and depends on the circumstances of each individual child.

The implications of Gillick competence are provoking debate prior to the court hearing regarding Keira Bell’s challenge to the clinical decision making process at the Tavistock, in placing children on a pathway to medical or surgical intervention for ‘sex reassignment’.

I do not think this legal case in any way challenges the concept of Gillick competence; I think rather it protects it. Consent to medical treatment is only valid if the child has sufficient age and understanding to appreciate what they are signing up for – what are the material risks and the hoped for benefits? It will be interesting to see what the court makes of these arguments in October 2020, so watch this space.

Parental responsibility

Parental responsibility is defined at section 3(1) of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

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.

This is a significant matter of status as between parent and child and, just as important, as between each of the parents. (see W (Children) [2012] EWCA Civ 999).

Interplay between Gillick competence and parental responsibility

These two concepts are thus intertwined. The younger the child and the less capacity he or she has to make decisions, the greater the extent of the exercise of parental responsibility. This is important for two main reasons.

  • Most parents, most of the time, have their children’s best interests at heart. Parents are likely to be an important part of decisions around keeping children safe. Who else is advocating for the child?
  • Families are also the ‘breeding ground of diversity’ and entitled to special protection – see Baroness Hale B (Children) [2008] UKHL 35.

Thus the importance of parental responsibility is recognised and protected by domestic and international law.

As was set out by Lady Hale in para 72 of The Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016):

Many articles in the UNCRC acknowledge that it is the right and responsibility of parents to bring up their children. Thus article 3(2) requires States Parties, in their actions to protect a child’s wellbeing, to take into account the rights and duties of his or her parents or other individuals legally responsible for him or her; article 5 requires States Parties to respect the responsibilities, rights and duties of parents or, where applicable, other family or community members or others legally responsible for the child to provide appropriate direction and guidance to the child in the exercise of his or her rights under the Convention; article 14(2) makes similar provision in relation to the child’s right to freedom of thought, conscience and religion; article 27(2) emphasises that the parents have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child’s development;

And at para 73:

Individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.

I would therefore expect to see any guidance directed at the safety and welfare of children to give due consideration to both these issues. A failure to do so, risks diluting the effectiveness of advice around safeguarding, and being an unlawful infringement of parental responsibility.

The younger the child in question, the more serious both these failings.

Safeguarding concerns around transitioning children need careful assessment. These could involve:

  • parental pressure to transition due to homophobia or wish for attention
  • lack of parental support or understanding for a child who wishes to transition
  • failing to consider risk to other children of ‘gender neutral’ spaces, either within a school or on residential trips
  • failing to involve parents in discussions about the safety of children
  • a younger child who wishes to take puberty blockers

It is neither ‘kind’ nor ‘inclusive’ to pretend that risks don’t exist and to fail to have a clear eyed and open minded approach to how to deal with them. On the contrary, it is both dangerous and stupid – and, I assert, unlawful.

Children aged 4 are very different to children aged 14. Children are not kept safe by a refusal to discuss – or even admit – this quite basic fact. Any guidance or advice that does not deal clearly with the interplay between Gillick competence and parental responsibility should be approached with caution.

Be wary: guidance and commentary which fails

Trans Inclusion Tool Kit for Schools and Educational Settings 2019 – makes only superficial reference to Gillick competence and only one glancing reference to parental responsibility at page 15. Is explicitly aimed at primary school children.

No one, no issues is off the table when it comes to safeguarding – ‘advice’ from a social worker published in the BASW journal that issues around transition are ‘not’ safeguarding issue. No mention of either Gillick competence or parental responsibility.

Only adults? Good practices in legal gender recognition for youth – explicitly urges for removal of any minimum age requirement for access to services around transition.

When should a trans child’s identity be permitted to be a material issue in a family case? – blog by the legal adviser to the charity Mermaids. The answer is – rarely. If a child of any age says they are trans, they are trans.

Please do let me know of any other examples you can find.

And support the Safe Schools Alliance in their legal action against the Trans Inclusion Took Kit.

Further reading

Transgender children: limits on consent to permanent interventions Heather Brunskell-Evans January 2020

Religious practice, blood transfusion, and major medical procedures – Journal of Paediatric Anasthesia 2009

If you tolerate this – then your children will be next

This is a post by Sarah Phillimore.

The end of safeguarding for children?

Young children do not have capacity to make decisions

A child is a person between the ages of 0-18. Older children may be considered ‘Gillick competent’ and able to make serious decisions about their welfare needs which may then override parental objections and give adult doctors etc the necessary lawful consent to treatment or other interventions etc.

A very broad approach is this. A child under 6 is vanishingly unlikely to have the capacity to make serious decisions. Children between 6-12 will vary in their ability to understand and weigh information. Children approaching their teenage years are likely to be ‘Gillick competent’ and able to give consent to medical treatment etc but even the wishes of a ‘Gillick competent child’ are not automatically held to be determinative of every case.

Parents have a legal obligation to protect the children in their care.

Parents have ‘parental responsibility’ for their children. This is set out at section 3 of the Children Act 1989

In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

In Christian Institute v Lord Advocate [2016] UKSC 512017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.

A parent who fails to exercise parental responsibility for their child may find their children removed from their care by the State or even that they face criminal charges of cruelty or neglect. For example, The Children and Young Persons Act 1933 deals with ‘cruelty to a child under 16’

If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats (whether physically or otherwise), neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated (whether physically or otherwise), neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (whether the suffering or injury is of a physical or a psychological nature), that person shall be guilty of an offence, and shall be liable—

It therefore remains very surprising and alarming to see a constant stream of ‘advice’ and even court proceedings which appear to start from a very different basis entirely. That for one issue alone – that of ‘gender identity’ – a child of ANY AGE should be given the power to make decisions, this cannot be a safeguarding issue and any parent who stands in the way of this should find themselves the subject of legal censure.

If you are talking about children’s rights – which children do you mean?

The state of ‘childhood’ covers a very wide canvass. Children of 6 are not the same, on any level, as children of 16. I have written about this before. See:

No one, no issue is off the table when it comes to safeguarding – I discussed my alarm at a social worker suggesting that parents supporting a child around issues of gender identity was ‘not’ a safeguarding issue.

You had better make some noise; Abusers will eploit bad laws and poor safeguarding

So it was with enormous unease that I read about the latest comment on parental responsibility via issues of gender identity for children. Because this appears to be spearheaded by a major law firm, Dentons.

Roll on Friday reported on November 29th 2019 about the production of a document headed : ‘Only adults? Good practices in legal gender recognition for youth’. This purports to be a ‘report on the current state of laws and NGO advocacy in eight countries in Europe, with a focus on rights of young people’.

The authors of the report recognises with thanks whose who have contributed to it.

IGLYO and Thomson Reuters Foundation wish to extend their thanks and deep gratitude to the legal teams and activists who contributed their time and knowledge to create this report.

The report was prepared by Dentons Europe LLP with the assistance of Dentons UK and Middle East LLP, and the NextLaw Referral Network. Our special thanks to Dentons trainee lawyers Jennifer Sim, Anna Mackinnon and Madeleine Macphail and to the Dentons Europe Pro Bono Trainee, Margaux Merelle.

There is a disclaimer:

This report does not constitute legal advice and should not be relied on as such. Readers wishing to act upon any of the information contained in this report are urged to seek individual advice from qualified legal counsel in relation to their special circumstances.

This report does not necessarily reflect the personal views of any of the lawyers, staff or clients of Dentons, Thomson Reuters Foundation or other lawyers, law firms or organisations that contributed to the development of this report.

Regardless of such disclaimers. this report is clearly intended to be used as a significant lobbying tool with the aim of changing the law. That is the explicit aim of the report.

GLYO’s aim was to create user-friendly resource for itself, its members and the broader advocacy community for use in campaigning efforts for better gender recognition laws across countries in the Council of Europe.

The report wishes to eliminate protections for children based on their age and understanding.

I went through the report to see what mention was made of children by age. There is no attempt to distinguish between the preschool child or the teenager. This is not surprising when you come to page 15 which calls to end the legal minimum age requirement.

Eliminate the minimum age requirement.

Where legal recognition procedures require prior medical treatment or investigation, these are often only available at the legal age of maturity and thus discriminate based on the age of the applicant. In other cases, where there is no medical requirement, minors are barred from legal recognition unless they have parental authorization. This remains a huge hurdle for young trans people who are yet to reach the age of maturity.

See also Page 9: Children and teenagers need to be allowed to define themselves however it suits them, both in social and legal terms

Page 13: The best interests of the child should be a primary consideration in legal procedures, and the child’s view should be given proper weight, taking into account their individual maturity and development. A child’s best interests must include respect for the child’s right to express their views freely and due weight given to said views in all matters affecting the child. In practice this would mean, for example, that a statement from a public authority suggesting that children of a certain age are too young to be aware of their identity is contradictory to the “best interest” principle and the right to be heard. 

There is no doubt that the authors of this report see protections for children based on their age and understanding, do not apply when it comes to the issue of gender identity.

I can find no understanding or assessment of the impact this has on the legal and moral obligations of parents to protect their children, apart from a few vague references to the welfare of children. I can see no mention of the Article 8 rights to respect for family life.

The report wishes to punish parents who want to take responsibility to protect their children

Not only does this document appear to be ignorant of or uncaring about the young child’s lack of capacity to make serious decisions about their physical or mental health, there is even a call for parents to be punished if they do not accede to the demands made by their child – regardless of age or understanding – see page 14.

For example, states should take action against parents who are obstructing the free development of a young trans person’s identity in refusing to give parental authorization when required.

This is confusing, particularly when Norway – a country lauded for its progressive approach – sets out clearly the age restrictions considered important.

Norway is the most liberal, with legal gender recognition being available at any age, although with certain conditions for different age groups. For example, minors under the age of 6 can only have their legal gender altered if they are intersex. For minors between 6 and 16, it is available with parental consent, and for those over 16 a self-determination model operates. In contrast, in Belgium, legal gender recognition is unavailable for minors under the age 16, and for those between 16 and 18 years old parental consent is required.

Do the authors of this report agree there is a distinction between a 6 year old and a 16 year old? I am not sure they do. Rather, this distinction becomes irrelevant as their work is ‘to educate the public that legal gender recognition is a purely civil process’.

This is probably the most dangerous fudging of reality of all. The main reason many share my fears about removal of any age limits when considering transition is that the current model of engagement in the UK is ‘affirmation’ only – and a child set along a pathway of puberty blockers, cross sex hormones and surgery. These issues and the frightening lack of clear understanding about what is motivating every increasing numbers of children to want to change sex were recently investigated by Newsnight and File on Four, when looking at those who now wish to ‘detransition’.

What does it say when you want to keep your arguments hidden?

The report is clear that those campaigning must ‘fly under the radar’ to avoid uncomfortable scrutiny:

The most important lesson from the Irish experience is arguably that trans advocates can possibly be much more strategic by trying to pass legislation “under the radar” by latching trans rights legislation onto more popular legal reforms (e.g. marriage equality), rather taking more combative, public facing, approaches. 

Advice is given about activism ‘behind the scenes’:

Another technique which has been used to great effect is the limitation of press coverage and exposure. In certain countries, like the UK, information on legal gender recognition reforms has been misinterpreted in the mainstream media, and opposition has arisen as a result.

What of any benefit is done in the dark? This says to me loud and clear that the authors of this report know that what they are recommending cannot stand up to scrutiny. It says to me that they risk being motivated by something other than the welfare of the children they profess to be fighting for. When you bring in slick professionalism from law firms and others motivated by profit, it rings some very, very loud alarm bells for me.

Always ask yourself – who stands to benefit from from any change to the law? If the people pushing this are seeking professional or financial validation, always be wary. If the people pushing it wish to ‘fly under the radar’ – always ask yourself why.

There are clear parallels between the recommendations of this group and how cults and predators operate. Those who are to be successfully recruited into the cult must be isolated from friends and family who do not share the cults aims and beliefs.

Unless and until there is a significant body of evidence that the ‘affirmation’ model is one that operates in the best interests of children, we should all be extremely wary and worried about this.

And parents should continue to take responsibility for their children and protect them from making potentially harmful decisions with life long consequences – regardless of what is threatened by lobby groups who do not appear to know or care about the law.

Further reading

Working with young people questioning their gender? Ditch the label and understand the child’s world CAFCASS website March 2018 Anthony Douglas CEO – fails to distinguish between Gillick competent and non Gillick competent children and contains alarming phrase We have to understand whether we should support a fast track transition, which can for example mean we recommend immediate use of hormone blockers so that transitioning does not become more complicated biologically if there is delay.

NHS staff being advised to ignore parents’ wishes if children self-declare as different gender, guidance shows The Telegraph January 2019

Dentons campaigns for kids to switch gender identity without parental approval Roll on Friday 29th November 2019

The document that reveals the remarkable tactics of trans lobbyists The Spectator December 2nd 2019