Taking a child abroad for a double mastectomy

Judgment in the case of Re S (Inherent Jurisdiction: Transgender Surgery Abroad)[2023] EWHC 347 (Fam) was handed down in February 2023.

Sam aged 15 at the time of the application, wanted to travel to Country X to undergo a double mastectomy. Sam had been born a girl but wished to be live as the male sex. Sam and her family had all been born in Country X but had been living in England for some years at the time. On 20th July 2022, the local authority applied for permission to invoke the inherent jurisdiction of the High Court, to prevent Sam travelling for surgery on 24th July. Sam’s identity and any of the ‘granular’ facts of this case have been obscured by the court, Sam having found this whole process, unsurprisingly, ‘excruciating’.

The Children Act 1989 section 100 puts a number of restrictions on the ability of a local authority to invoke the inherent jurisdiction or ‘wardship’ jurisdiction. I have written more generally about the nature and extent of the court’s powers in wardship here. This is a very ancient jurisdiction and allows the High Court to make orders to protect children from significant harm, even if there is no statutory provision to do so.

The local authority cannot use the inherent/wardship jurisdiction to have a child put in its care under its supervision or otherwise accommodated; nor to give it power to determine any question arising around parental responsibility for a child. The court must give permission for such an application to be made.

The run up to the final hearing

At the hearing on 24th July, the judge ordered that Sam was not to undergo any gender reassignment surgery without the permission of the court and was not to leave, or be removed from, the jurisdiction for the purpose of undergoing any surgery until further order.

An attempt by Sam and the family to get the proceedings dismissed in October 2022 failed By that time the court had received a substantial body of medical records tracking the various consultations and other interventions that the family had sought in the preceding months and years. The local authority moved its focus from the potential for ‘serious harm to [Sam’s] physical and emotional welfare and wellbeing’ to the question of whether full and valid consent to the planned surgery had been given by Sam and/or his parents. The court wanted further investigation.

The final hearing – application to withdraw

The case was listed for final hearing before the President of the Family Division. 5 days before the hearing, the local authority was putting its case on (i) legality of the operation in Country X and (ii) the validity of consent. However, on the morning of the first day of the final hearing, after the President’s clerk had contacted the parties and asked them to consider a number of issues around the validity of the application, the local authority applied to withdraw its application on the basis that it could not discharge the burden of proving its case. Sam and her parents were very relieved and there was no opposition from the Children’s Guardian. Those representing the family members then made application for costs against the local authority.

So what went wrong?

To trigger use of the inherent/wardship jurisdiction the local authority must show that there are reasonable grounds to believe that the child will otherwise suffer significant harm. Its initial statement did not go into great detail, simply saying it was worried about Sam’s emotional and physical welfare, the NHS had not been engaged and there were no proposals for Sam’s after care. However, Sam’s father produced a letter from an expert in Country X who asserted that such surgery was not unlawful in this country and was ‘tolerated’ for those under 18 who were undergoing gender ‘transition’ or ‘confirmation’.

The court considered at an early stage if the local authority should make an application for a care order but the local authority said it did not intend to:

The risk of significant harm that we were concerned about has currently been substantially reduced by our involvement, namely through the existing court order to prevent [Sam] having the operation. Currently the parents are engaging with us and have agreed to a Child in Need process which is positive. It is considered that applying for any further orders at this current time is unnecessary and to do [so] could be oppressive. The local authority does not feel that it is in [Sam’s] best interests at this time and could cause more distress for [Sam] and his family.’

The President found this position ‘legally incoherent’ – as explained above, the inherent jurisdiction cannot be invoked by a local authority if it could achieve its aims by either a care or a supervision order. Whether it wants to or not is irrelevant and to proceed in this way was to ‘distort’ the existing legal structure which ought to be well known to all family lawyers.

The President further noted that the local authority position focused on whether or not the surgery was permitted in Country X and whether proper consent had been given. There was very little reference to any ‘harm’ that would be suffered by Sam, but in an application of this nature the court would expect discussion of possible harm to be of prime importance. Nor was there much reference to Sam’s welfare and the need for the court to make this its paramount concern.

With regard to permission to withdraw proceedings, the court noted that the local authority required permission under Family Procedure Rules 2010, r 29.4(2)21 and the most recent authority is GC v A County Council and Others [2020] EWCA Civ 848, [2020] 2 FLR 1151 in which the court described the approach to be taken. The local authority maintained that it had been right to bring the application and that much detailed evidence had emerged only very recently that allowed it to reconsider its position on legality and consent.

The other parties did not accept this, saying that the evidence had been well known to the local authority for some time. The President noted:

The making of this application and its prosecution over a period of in excess of 6 months has caused harm to Sam and to each of his parents. The impact on him has been ‘excruciating’ and has, in particular, detrimentally affected his schooling. The father’s description of the effect that the local authority’s intervention has had on Sam is one of devastation. The parents have described the court process as very frightening. The mother has been particularly focussed on the possibility that she might be sent to prison if court orders are disobeyed. Both parents are now on medication to help them cope with the consequences of the litigation. The impact of these proceedings on this small family is likely to last into the long-term.

The key issue was whether the local authority had acted unreasonably. The court considered the judgment of Lady Black in Re T [2021] UKSC 35 which focusses on CA 1989, s 100 at paragraphs 118 and 119. The President made costs orders, concluding that the local authority had acted unreasonably in focusing on the legality of the operation and issues around consent where ‘there is no evidence to establish a likelihood of significant harm or that to undertake the operation as planned is contrary to Sam’s welfare…’

Comment – no evidence of significant harm?

As the application before the court was for permission for the local authority to withdraw its application, that was the only substantive issue before the court (apart from also the issue of costs). Therefore the court made some comment on matters of general importance but accepted they were no more than ‘observations’. These points may need to be taken up and fully argued in future contested litigation.

What is of particular interest are the President’s comments about the issue of ‘significant harm’ to Sam and how there was ‘no evidence’ to support a finding that she was at risk of suffering this.

The decision taken by Sam and his parents in favour of surgery was a complex one involving consideration of a range of sophisticated factors. In the circumstances of this case I would have needed a good deal of persuasion before holding that the plan for Sam to go abroad for chest surgery was likely to cause him significant harm, or that to do so was not in his best interests. Further, as is now accepted by the local authority, in a case of two parents who are conspicuously well intentioned, law abiding, loving and child focussed, and in a case where Sam is plainly an intelligent and thoughtful individual who is so well settled in his life as a young man, the prospect of the court concluding that there was some defect in their approach to consent was remote.

Of course, I have not been able to read any of the evidence presented in this case. I do not know the precise nature of the ‘range’ of ‘sophisticated factors’ that were considered. But what is inescapable is that this case involved a child – aged 15 at the date of the proposed surgery – who had to travel abroad for a procedure which it is unlawful to carry out in the UK.

One might suppose that the issue of ‘significant harm’ is encapsulated in the unlawfulness of carrying out such irreversible surgery on a minor in the UK. But the President of the Family Division did not agree.

And in all the genuine and reasonable concern about ‘access’ to ‘gender affirming care’ we now see a very stark two tier system opening up. If your parents are wealthy enough, then they can fly you to a country that does consider it lawful to remove the healthy breasts of a child in order to ‘affirm’ that child’s gender. But a double mastectomy does not make a female a male. There is simply insufficient evidence for the President – or indeed anyone – to conclude that a child will remain ‘well settled’ in their life as the opposite sex, when there is no medical or surgical route that can establish a change of sex.

I suspect a case will be coming and soon where these fundamental issues will need to be grappled with. If children can routinely be transported out of the UK for surgery that is unlawful here, how soon will it be before pressure is applied on the NHS to carry such surgeries?

Use of the Inherent Jurisdiction to protect a child in care

A local authority applying for an injunction to prevent abuduction of a child

This post looks at what a local authority can do to protect a child in care if they have good reason to believe that child might be at risk of abduction by his parents. This appears to be an increasingly likely scenario as the amount and kind of information easily accessible on line continues to grow, alongside the number of support groups on social media who encourage parents to take direct action against the ‘evil’ system. One option is to apply to the High Court for an injunction against the parents, by asking the court to apply the ‘inherent jurisdiction’.


The inherent jurisdiction of the High Court has historically been described as ‘inexhaustible’ or ‘limitless’ . In essence it can be used to ‘fill in the gaps’ of existing statute and case law. However, use of the inherent jurisdiction over the years has become more restricted. Its application now must be considered in the light of existing statute, case law, and the Family Procedure Rules.

‘Wardship’ is part of the inherent jurisdiction which is most often applied to children but this is now subject to very serious statutory restrictions. Wardship cannot be used, for example, as a way to take children into state care because this would mean by-passing the necessary checks and balances set out in the Children Act 1989.

Section 100 of the Children Act 1989 sets out the restrictions to the use of the inherent jurisdiction. Under section 100(3), a local authority who wants the court to exercise it must first get permission and that will only be given if :

  • the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
  • there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

As the local authority is a corporate body, not an individual person, it cannot apply for orders under the Family Law Act 1996. Therefore, a non molestation order could not be granted to a local authority and seeking an injunction pursuant to the inherent jurisdiction is their only likely  option. However, the court CAN make a non molestation order to protect children in the context of ‘other family proceedings’ – see the discussion below.

The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2 provide as follows:
1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2 The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common: –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.

Practical matters – what court?

The inherent jurisdiction can only be exercised by the High Court so you will either need to be in the actual High Court or before a Judge who is allowed to sit temporarily as a ‘High Court’ Judge for the purposes of making such orders. This is permitted under section 9 of the Senior Courts Act 1981; such Judges are described as ‘having a section 9 ticket’.

You can get an injunction without the other side turning up to court if the matter is really urgent but in most cases the court will be keen to know what efforts you have made to let the other side know about your application. The court will need to be satisfied that the local authority have made reasonable efforts to get in touch; for example by visiting known addresses, telephoning, sending texts and/or emails.

If the parents don’t attend court, the Judge can make an injunction for a short period of time – for e.g. a week – then list another hearing to give the parents more time to attend and respond to the application.

Depending on how long ago the care proceedings were, it may also be sensible to at least inform the guardian about the application. However, it may not be necessary for the guardian to play any role in the injunction proceedings.

What should the injunction say?

Injunctive orders must be:

  • capable of enforcement and
  • must be necessary and proportionate to the risk of harm identified.

So be careful of vague orders or ones that go beyond what is needed to keep the child safe. Much will depend on the facts of the particular case before you and the risk of harm faced by the child. For example, in Birmingham City Council v Sarfraz Riaz and Others [2014] EWHC 4247 (Fam). Keehan J considered the case of Re J (A Child) [2013] EWHC 2694 (Fam) where the President observed that court had a duty to consider whether the terms of the proposed orders were fair, necessary and proportionate to the facts of the case and capable of being enforced.

Keehan J concluded in the case before him that it was appropriate in all the circumstances to make very wide injunctive orders to prevent child sexual exploitation.

The inherent jurisdiction is clearly wide and versatile enough to compass prohibiting respondents from accessing a wide geographical area. For example, consider the decision of the then President of the Family Division the late Sir Nicholas Wall, in CW & Ors v. TW & Ors [2011] EWHC 76 (Fam), who made an order banning the respondent from the country of Wiltshire ‘save for specified purposes’ .

Every injunction should have the following paragraphs included

You should read the terms of this order very carefully. You are advised to consult a solicitor as soon as possible.
An application was made on [this date] by the local authority to the Judge. The Judge heard the application in the absence of the Respondent (if applicable) and read the evidence in Schedule 1 to this order (set out what evidence the Judge considered here)

Variation and discharge
The Respondent or anyone notified of this order may apply to the court at any time to vary or discharge the order (or so much of it that effects that person) but anyone wishing to do so must first inform the applicant local authority

Communication with the Court
All communications about this order should be sent to [the court that made the order]

To [the Respondent] You must obey the instructions contained in this order. If you do not, you will be guilty of contempt of court and you may be sent to prison, fined or your assets may be seized.
This penal notice is attached to the following paragraphs of this order [set out appropriate paragraphs]
Any other person who knows of this order and does anything which helps or permits the Respondent to breach the terms of this order may also be held in contempt of court and may be imprisoned, fined or have their assets seized.

Power of arrest attaching to an injunction under the inherent jurisdiction and non molestation orders

You cannot apply a power of arrest to such an injunction.  If it is breached, the local authority must apply to enforce it in the usual way, by asking the court to issue a warrant for the parent’s arrest for contempt of court. The parent will then be bought to court and asked to explain why they breached the order. This is provided for in the paragraph relating to a penal notice, set out above.

In Re FD (Inherent Jurisdiction: Power of Arrest) [2016] EWHC 2358 (Fam) Keehan J considered the relevant authorities relating to attaching a power of arrest to such an injunction and concluded that this was not permissible. He refered to the judgement of the Court of Appeal in Re G (Wardship) (Jurisdiction: Power of Arrest) [1983] 4 FLR 538 which had not been drawn to the attention of courts in previous cases and thus had been over looked.

However, you can ask the court to make a non-molestation order against the parents to which a power of arrest is applied.

McFarlane LJ considered this in the case of T (A Child) [2017] EWCA Civ 1889

There is no room for doubt that the court had jurisdiction to consider granting a non-molestation order for the protection of the child in this case under FLA 1996, s.42(2)(b). The court was seized of validly constituted ‘family proceedings’ (s.63(1)), namely the local authority application under the inherent jurisdiction).

The inherent jurisdiction injunction was fixed by the judge to run for the child’s minority and there is no reason why it would have been, or should have been, discharged or superseded if a non-molestation order had also been imposed.

[40] The purpose of s.42(2)(b) would seem to be clear; it is the means by which the court may make orders for the protection of children whose circumstances have come to the notice of the court in other family proceedings.

[41] Once it was accepted that any order under the inherent jurisdiction could not be supported by a power of arrest, it was a perfectly legitimate step for the local authority to ask the court to consider granting a non-molestation order under the 1996 Act by utilising the jurisdiction provided by s.42(2)(b) which is designed precisely for the purpose of supplementing the court’s jurisdiction in other ‘family proceedings’ in this way.

(ii) Non-molestation:
[53] There is no requirement in either the 1996 Act or the case law for there to be some direct interaction between the respondent and the applicant or child in order to establish the basis for granting a non-molestation order. The judge’s finding that M and JM’s conduct was ‘positively harmful’ to the child and, if continued, would be likely to cause significant harm, was more than sufficient to justify exercising the powers under s. 42. The impact on the child’s life of M and JM’s conduct, as described by the foster carers and as found by the judge, plainly amounts to harassment and, as the judge held, applying the s. 42(5) criteria, makes the granting of an order clearly necessary.



The wardship jurisdiction

The concept of ‘wardship’ is very ancient. It is part of the court’s ‘inherent jurisdiction’ i.e. the power of the court to make orders about matters which are not included in any statute. This is because the court is treated as a trustee of the Crown’s duty to protect all its subjects.  Wardship is just one facet of this wider inherent jurisdiction.  suesspicoussminds comments:

Wardship is part of the High Court’s Inherent Jurisdiction, and as long-term readers will know, the High Court is very fond of using the Inherent Jurisdiction as authority for doing just about anything, and often use the phrase “the powers of Inherent Jurisdiction are theoretically limitless”

The earliest origins of wardship can be found in feudal times, giving the Crown the right to exercise powers and duties over orphaned children whose fathers had owned land.  These children ‘belonged’ to the King as ‘pater patriae’ (the ‘father of the country’).

In 1540 a Court of Wards was set up to enforce the right of the Crown and the execution of its duties in connection with wardship. This court was abolished in 1660 but the wardship jurisdiction carried on and the Court of Chancery claimed jurisdiction over children. It began to expand from being merely concerned with property rights, to the general welfare and protection of children.

Lord Cottenham LC in Re Spence (1847) 2 Ph 247, 251 described wardship in these terms:

 I have no doubt about the jurisdiction. The cases in which the court interferes on behalf of infants are not confined to those in which there is property . . . This court interferes for the protection of infants qua infants by virtue of the prerogative which belongs to the Crown as parens patriae and the exercise of which is delegated to the Great Seal.

The Guardianship of Infants Act 1886 provided a statutory basis for consideration of children’s welfare – but ‘wardship’ continued to exist beyond statute law as part of the court’s ‘inherent jurisdiction’.

In R v Gyngall [1893] 2 QB 232,248, Kay LJ commented that wardship:

. . . is essentially a parental jurisdiction, and that description of it involves that the main consideration to be acted upon in its exercise is the benefit or welfare of the child. Again the term ‘welfare’ in this connection must be read in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration and the court must do what under the circumstances a wise parent acting for the true interests of the child would or ought to do. It is impossible to give a closer definition of the duty of the court in the exercise of this jurisdiction.

Modern Day Wardship and its limitation by the Children Act 1989

Practice Direction 12D explains what is meant by wardship and the inherent jurisdiction in the modern age.

It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.
The court’s wardship jurisdiction is part of and not separate from the court’s inherent jurisdiction. The distinguishing characteristics of wardship are that –
(a) custody of a child who is a ward is vested in the court; and
(b) although day to day care and control of the ward is given to an individual or to a local authority, no important step can be taken in the child’s life without the court’s consent.

The Children Act 1989 introduced some significant limits to the jurisdiction. Section 100 provides  that wardship may NOT be used to put a child into care as this would by pass the Children Act 1989 and could mean that the necessary statutory tests weren’t met, such as the need to prove significant harm.

The Children Act itself was intended to incorporate many of the beneficial aspects of wardship, such as a flexible range of orders and the intention was that the Children Act would substantially reduce the need for people to apply to the High Court for wardship.

However, the Court of Appeal have confirmed that it is possible to make a child a ward of court when they are voluntarily accommodated by the LA under section 20 – see this post by suesspiciousminds for further discussion. 

If a wardship order is made, it is for the Court to make decisions about the child and the court can’t use wardship to make this decision if it could be made using any other provision of the Children Act 1989.

This is why wardship was used in the case of Ashya King in 2014 whose parents removed him from hospital in the UK and took him to be treated abroad. The LA were not applying to have him taken into care and there was no other provision in the Children Act that was available. Ashya was made a ward of court on the application of the LA and the parents were ordered to take him for medical treatment. Fortunately this case had a happy ending and the court were able to discharge the wardship order and Ashya remained with his parents.

Use of the inherent jurisdiction to accommodate children

For discussion as to when the inherent jurisdiction can be used to authorise placing a child in LA accommodation outside the statutory/regulatory regime see the case of Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam). The court decided that it remains open to the High Court to use the inherent jurisdiction to authorise the deprivation of liberty of a child under 16, where the child will be living in a placement which is outside the statutory or regulatory scheme, provided that everyone followed the President’s Guidance of November 2019 entitled Placements in unregistered children’s homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020. 

See also the discussion of the use of the inherent jurisdiction by the Supreme Court in the case of Re T[2021] UKSC 35, which determined that use of the inherent jurisdiction IS permissible and doesn’t ‘cut across’ the statutory scheme of LA accommodation – but expressed grave concerns about its use to fill gaps in the child protection system, due to lack of resources. The child’s consent or lack of it did not determine the decision about whether a deprivation of liberty was permissible. Placement of a child in unregistered or unregulated accommodation must be a temporary solution, only if no other alternative available and reflects a ‘scandalous lack’ of provision. The full judgment is here