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 Christian Institute v Lord Advocate  UKSC 51; 2017 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.
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.
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.
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.
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.
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