Tag Archives: consent

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

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

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

The Facts

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

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

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

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

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

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

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

The decision in re J

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

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

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

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

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

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

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

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

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

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

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

At para 53 the court set out its approach

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

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

The Case of Q

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

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

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

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

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

Commentary

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

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

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

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

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

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

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

Medical transition of children – where now?

This is a post by Sarah Phillimore. I look at the implications of the determination on the facts in the medical disciplinary proceedings bought against Dr Helen Webberley and consider the implications for professionals with statutory obligations to safeguard children. I hope the social work members of EBSWA will respond to this post and offer their insight into how social workers should respond, and hopefully we can organise a webinar to share our joint thoughts.

DETERMINATION ON THE FACTS – 22/04/2022

Dr Webberley has been a long standing and enthusiastic proponent of medical transition for children, and has prescribed female children under the age of 16 with testosterone via a variety of online services such as ‘Gender GP’. On 5 October 2018 she was convicted of two counts in relation to the carrying on or managing of an independent medical agency without being registered under the Care Standards Act 2000, and was fined £12,000. The General Medical Council challenged her continuing fitness to practice around allegations from her care and treatment of ‘transgender children’ in 2016/7.

The Tribunal found Dr Webberley competent to provide hormones to children, but she kept inadequate records, had failed to record or properly consider consent or provide adequate follow up care, leaving one child in a ‘state of anguish’.

The Tribunal will meet again in June 2022 to decide what penalty should follow these findings. I set out a precis of the background and the Tribunal’s reasoning below; for the full discussion please refer to the determination on the facts.

This determination has caused me significant concern. It makes four particular assertions which I do not think are supported by the available evidence and which have potentially harmful ramifications for children.

‘gender dysphoria’ is a product of something innate and physical. It is therefore wrong to label it a ‘mental illness’ and wrong to insist on ‘gate keeping’ via mental health screening. ‘Transgenderism’ has been ‘reclassified’ as a physical condition related to sexual health.
Gender dysphoria manifesting before puberty is often self-remitting, whereas gender dysphoria persisting into puberty or manifesting itself during puberty is far more likely to require gender-affirming therapy.
Those who object to the medical transition of young children are ‘unenlightened’ and their objections akin to homophobia.
The Tribunal rejected the assertion that a child’s gender identity develops over time as ‘unevidenced’ despite the research over many decades of expert child development psychologists which supports this.

The Tribunal recognised that while hormones had been prescribed for transgender patients over many years, what was different now is the age of transgender patients to whom these hormones were being administered. However, it appeared to ignore or skate over the following issues:

As the Divisional Court commented in Bell v Tavistock, there was a risk that the affirmation path ‘locked in’ children to escalating medical and surgical interventions
The risk of social contagion, seen in the incredible surge in adolescent female patients at the Tavistock around the relevant time, many of whom were also diagnosed with autism
The increasing narratives of those now in their early 20s who ‘destransitioned’ and feel profound regret
The apparent internalised homophobia which appears to be motivating some parents
The interim report of the Cass Review, that sets out the lack of any clear evidence base to support the assertion that puberty blockers and cross sex hormones are ‘harmless’ or ‘reversible’
Reliance on assertion that children deprived of treatment may kill themselves; it is not clear from the determination what is the evidence base for this assertion.

Given that it the Tribunal did not restrict itself to simply making comment on the state of play in 2016/7 but were clear to criticise people as bigots if they didn’t support medical transition, in my view it was incumbent on them to at least consider the wider landscape and the rejection by the Cass Review interim report of their assertions that it is possible on the current state of the evidence to opine about the safety of prescribing testosterone to 11 year old girls. This report was in February 2022 so was available to the Tribunal prior to the handing down of their determination.

I am particularly concerned by the apparent lip service paid by the Tribunal to the fundamental importance of informed consent from children who are contemplating irreversible and life long medical or surgical intervention. This for example was Patient C’s level of thinking

I would like to not have boobs;

I’d like my boobs cut off – they wobble now and get on my nerves;

I want to have hormone blockers to stop my boobs growing because they are getting too big now. I know the boobs won’t go away;

Patient A was dismissive of the importance of any other intervention – note an email from patient A to Dr Webberley I find going to the Tavistock pointless, because James askes non related and personal questions for an hour, and not only is it boring, it doesn’t help me at all. I know we had to do it to get blockers, because we didn’t know about you at the time but I don’t want to go back as it is a waste of time

However the Tribunal did find that Dr Webberley failed to properly deal with issues around fertility with regard to Patient C – given that this child was aged 11 at the time, its very difficult for me to understand how informed consent to possible sterilisation could ever be given.

I think the implications of this for those professionals who work directly with children and have statutory obligations to secure their welfare – such as social workers – are very serious. I am not competent to unpick the medical evidence which informed the Tribunal’s determination but it is clear that the views asserted as ‘fact’ are, to say the least, controversial. Even if what they find is true – that ‘gender identity’ is something innate and identifiable in the physical structures of the body – what is the prevalence of such a condition? How is it identified? We appear to have no reliable way of identifying which children are genuinely gender dysphoric and which children have been told that ‘changing sex’ is the answer to the confusion they feel about possibly a multiplicity of other traumas or challenges in their lives.

To the man with a hammer, everything is a nail. I am worried that what is happening is that ideology is becoming baked into medical practice – as per Mermaids promotion that ‘a child of any age who says they are trans, are trans’. It is no reassurance that Dr Webberley’s bespoke ‘multi disciplinary team’ compromised of Dr Pasterski and her husband; both having demonstrating very clear allegiance to an ideology of gender identity expression. Dr Webberley has clearly worked closely with Mermaids and the emotional responses she gives in emails to the parents of her child patients sounds an alarm bell to the extent to which her professional clinical judgment is overshadowed by ideological zeal. Providing cross sex hormones to children is not a ‘civil rights issue’ – as Mermaids would have it. It’s a profoundly serious intervention in a child’s life with potential irreversible consequences and requires objective clinical assessment.

What appears to be motivating the ever decreasing age at which cross sex hormones are prescribed is concern by adults that the child will ‘not pass’ if allowed to go through puberty and develop secondary sex characteristics. But of course the alternative, as we see in the desperately sad case of Jazz Jennings, early administration of puberty blockers and cross sex hormones left the child with insufficient penile tissue to perform a successful penile inversion and construct a neo vagina – colon tissue had to be used.

This determination, if relied upon by professionals or parents as authoritative comment, puts social workers and lawyers in a very difficult position if they are attempting to advocate for ‘gender diverse’ children, effectively condemning them as ‘bigots’ if they express any concern about what is motivating a young child’s wish to medically transition. It is a very stark indication of just how urgently we need clear and definitive guidance. I have no doubt that ‘transition’ is being promoted to some very vulnerable and unhappy children as the ‘fix’ for all their problems. They are highly unlikely to be capable of understanding the ramifications of medical transition and its life long consequences. It is not ‘enlightened’ to subject children to a treatment they cannot understand and most will never need. To say that the view I express here is akin to ‘homophobia’ is insulting and ridiculous. I reject it. No gay child ever needed to deny their own physical body to be gay. When it comes to medicating children, I assert there are zero useful comparisons between ‘transgenderism’ – a belief in a ‘gender identity’ and homosexuality – a same sex attraction.

Suggested way forward

I offer the following guidance to lawyers and social workers who may now understandably be reeling in confusion from the starkly contradictory messages from this increasingly polarised issue. This is how I will approach such cases, on the basis of the knowledge and understanding I now have. I hope that social work members of EBSWA will now respond to this post with their suggestions for how we should approach the issue of ‘transgenderism’ in children under 16.

Pre school children should not be encouraged to socially transition. There is no need for rigid gender stereotyping to be promoted at this age. Children ought to be allowed to wear what they like within reason and play with whatever toys they like
If primary school children are expressing a wish to transition, then careful and holistic examination of their environment is required. What are the views of the parents? What other mental health/social challenges is the child facing? How do they impact upon issues of gender dysphoria? In my view it is highly unlikely that any primary school child would be Gillick competent to consent to even social transition and the child’s parents must be involved in any such decisions.
Secondary school children are likely to be Gillick competent in many areas. However, the ramifications of medical and surgical transition are so serious I think it is likely the majority of children under 16 simply cannot given informed consent. The same careful analysis of their social environments is required. What support is available for them in terms of talking therapies? The issue of parental involvement is more complex if a Gillick competent child objects, but I suggest that schools should be slow to exclude a parent from information about a child’s claimed gender identity expression.
Experts with an ideological bent or an overly emotional response to the issue of childhood medical transition should be avoided.
Parents who claim that children have expressed ‘revulsion’ for their birth sex from a very early age should be treated with caution and their assertions not simply taken at face value.

Given the current state of the evidence and the worrying indications that many practitioners in this field are driven by ideological commitment to ‘gender identity expression’ I would favour a hard ban on any medical intervention for children under 14 and on any surgical intervention for any child under 18. I would prefer it if there was a professional obligation on doctors for a genuinely ‘multi disciplinary’ team to review any decision for cross sex hormones for a child under 16.

I call for continued rational and responsible discussion about what evidence we need to justify another approach and I hope the final Cass Report will assist us here. It is very difficult for me to reconcile the comments made by this Tribunal and the interim Cass Report.

Background

The allegations against Dr Webberley were extensive but can be briefly summarised; between March 2016 and May 2017, she failed to provide good clinical care and treatment to three transgender adolescents, appeared to be ignorant of safeguarding policy and had been dishonest about a variety of matters. The full details of the allegations are set out in the determination on the facts. The patients were aged 11 years and 10 months, 16 years and 3 months and 10 years and 7 months respectively, when they and/or their parent first contacted Dr Webberley.

The GMC case against Dr Webberley was essentially:

“…the care of transgender adolescents is complex and that, in consequence, the care of Patients A, B and C could only be delivered within a multidisciplinary team with input from specialists, particularly those from the disciplines of psychology/psychiatry and paediatric endocrinology. The GMC alleged that Dr Webberley, a GP, was not competent to deliver the care in question and that it was not delivered within a multidisciplinary team setting.”

Dr Webberley’s barrister made closing submissions in the following vein

‘This is the oddest of cases. No one has suggested that each of the patients did not suffer from gender dysphoria. No one has suggested that the treatment for gender dysphoria in this case is not puberty blockers and/or testosterone. None of the patients has complained about the care they received from Dr Webberley. Quite the contrary, the mother of Patient A and the mother of patient C were asked to provide statements to the GMC and the GMC obtained statements from them. Each is glowing in their support of Dr Webberley and each views the care that she provided to their son as life-saving.’

Patient A wished to transition from female to male; concerns were raised about the care and treatment provided by Dr Webberly in 2016 by Professor Peter Hindmarsh, the Clinical Director of Paediatrics at the University College London Hospitals. Patient A’s family had contacted Dr Webberley via one of her websites, and she prescribed ‘gender-affirmation hormone (‘GAH’) therapy – i.e. testosterone. Professor Hindmarsh was concerned this was not appropriate for a child under 16, the dose prescribed was too high and no attempts were made for patient A to undergo any psychological assessment or be manged by a multi disciplinary team (MDT).

Concern was raised over Patient B by Dr Roger Walters, consultant child and adolescent psychiatrist with the Buxton Child and Adolescent Mental Health Service (CAMHS). Patient B was a female who identified as male and was also receiving testosterone from Dr Webberley, which had been obtained by her internet website. Dr Walters was worried about the impact on Bs mental health and if this prescribing of testosterone was in line with standard practice. He attempted to liaise with B’s GP and Dr Webberley, who did not engage.

Patient C, another female wishing to transition to male, came to Dr Webberley aged 11 due to the long waiting lists for treatment at GIDs. Dr Webberley wrote to C’s GP, explaining that she wished to prescribe puberty blockers for C, having assessed C alongside a psychologist and explained possible issues re fertility. The GP surgery eventually sought advice from Professor Gary Butler at the UCLH, who raised concern that Patient C had been prescribed puberty blockers without the appropriate assessments, including any psychological assessments. Further, Professor Butler was also concerned that Dr Webberley’s clinical practice was restricted by the GMC, and that he had reported his concerns to the GMC.

The Tribunal received evidence on behalf of the GMC from a wide variety of witnesses, and on behalf of Dr Webberley from the following expert witnesses

Dr Valerie Pasterski, Chartered Psychologist and Gender Specialist, report dated 19 August 2021;
Dr Daniel Shumer, Paediatric Endocrinologist, reports dated 22 August 2021 and 25 August 2021
Dr Walter Bouman, Consultant in Transgender Health, reports dated 23 August 2021 and 5 September 2021.

Its worth noting that Dr Pasterski was the expert who persuaded Mr Justice Williams to the ‘enlightened’ thinking that there was nothing remotely odd in two unrelated foster children aged 4 and 7, in the same family, expressing a wish to transition.

The GMC case relied on two clinical practice guidelines, namely 7th edition of the World Professional Association for Transgender Health’s Standards of Care (2012) (WPATHSOC7) and the Endocrine Society’s Clinical Practice Guidelines (2009) as benchmarks in transgender healthcare at the material time. The Tribunal agreed that WPATHSOC7 has the status of peer-reviewed expert guidance and that ‘transgender healthcare’ was an evolving discipline during the material time.

Transgender healthcare services for children and adolescents should, according to WPATHSOC7, be provided by a multidisciplinary team that includes, inter alia, mental health professionals and paediatric endocrinologists. Mental health professionals are central to the WPATHSOC7 vision of how transgender healthcare services should operate, the Tribunal noting the importance of mental health screening:

Clients presenting with gender dysphoria may struggle with a range of mental health concerns whether related or unrelated to what is often a long history of gender dysphoria and/or chronic minority stress. Possible concerns include anxiety, depression, self-harm, a history of abuse and neglect, compulsivity, substance abuse, sexual concerns, personality disorders, eating disorders, psychotic disorders, and autistic spectrum disorders. Mental health professionals should screen for these and other mental health concerns and incorporate the identified concerns into the overall treatment plan.’

The Endocrine Society Guidelines 2009 endorsed the then prevailing WPATH guidelines (WPATH-SOC6) regarding the gate-keeper role of the mental health professional but, surprisingly for a document written by endocrinologists, it contained no guidance concerning the training or competencies required of a hormone-prescribing physician. The Tribunal found it difficult to reconcile the roles of hormone prescriber and diagnostician if the former is an endocrinologist and the diagnosis is a mental illness.

The Guidelines suggest that to receive ‘gender-affirming hormones’ an adolescent should be over 16 but this was a ‘suggestion’ not a ‘recommendation’. The Tribunal found this suggestion was based on the legal position that children aged 16 are generally considered as adults for medical decision making; it did not have a medical or biomedical basis.

Both WPATHSOC7 and Endocrine Society Guidelines 2009 advocate a staged approach to physical interventions in transgender healthcare. Stage-1 involves the arresting of endogenous puberty through the administration of medications such as GnRHa. Stage-2, the administration of gender-affirming hormones to induce transgender puberty. Stage-3 is the surgical remodelling of the body. Stage-1 interventions are regarded as fully reversible, although concerns have been raised that protracted use of GnRHa may impact adversely on skeletal health; stage-2 as partially reversible and stage-3 as irreversible.

The Tribunal noted that there were no NICE guidelines specifically relating to the treatment of gender dysphoria at the material time, nor have any been developed to date and therefore while GIDS is contractually obliged to deliver its service in line with emerging evidence for best practice, it is in reality tethered to WPATHSOC7 and Endocrine Society Guidelines 2009.

To access endocrine interventions, GIDS service users must undergo multiple stepwise or concomitant assessments by multiple mental health professionals over a period of many months to establish a psychiatric diagnosis of gender dysphoria and to confirm persistence of gender dysphoria. This is based in part on evidence that gender dysphoria in pre-pubertal children is often self-remitting. However, the Tribunal found it was crucial to distinguish between children and adolescents, relying on guidance in WPATHSOC7 and concluded: Gender dysphoria manifesting before puberty (i.e. in children) is often self-remitting, whereas gender dysphoria persisting into puberty or manifesting itself during puberty is far more likely to require gender-affirming therapy.

The Tribunal referred to Bell v Tavistock [2020] EWHC 3274 (Admin) but made no mention of the concerns expressed by the Divisional Court that the ‘affirmation’ path of puberty blockers followed by cross sex hormones may be a difficult one for a child to leave. Instead the Tribunal concluded that :

In summary, adolescents that consent to puberty blockers do not need ‘time to think about their gender identity’: they are already settled in their mind and almost invariably seek gender-affirming (stage-2) hormone therapy.

On this rather unusual understanding of adolescent decision making prowress, it is not hard to see why the Tribunal were then critical of GIDs, having

“an unyielding protocol-driven approach to its psychological assessment phase. Far from being tailored to the needs of individual service users, it evidently imposes a one-size-fits-all diagnostic/assessment protocol. Access to hormone therapy via GIDS is, moreover, dependent upon service users meeting DSM-5 criteria for gender dysphoria and thereby accepting that they have a mental illness.

The Tribunal found this particularly pertinent when considering the ‘evidence’ at the material time that gender dysphoria is not, in fact, a mental illness and concluded that opinion was and still is divided amongst experts as to the optimal approach.

The Tribunal found that a shift in terminology to ‘gender incongruence’ reflects a fundamental shift in medical and societal attitudes to transgenderism and gender dysphoria is no longer to be regarded as a mental illness but rather a physical state of being, not a state of mind. This is based on ‘evidence’ that gender identity is innate, rather than learned. This evidence includes ‘post-mortem evidence that the structural neurobiology of the brain is involved in the establishment of gender identity.’

The Tribunal called this ‘enlightened thinking’ and rejected the Endocrine Society guidelines which states that one’s self awareness as male or female evolves gradually during infant life and childhood’.

The most astonishing assertion of the Tribunal is at para 111

The Tribunal finds that the reluctance of the Endocrine Society and others to embrace enlightened views of transgenderism is symptomatic of the tendency in all professions to be slow to move with the times. This inertia in respect to medical attitudes to transgenderism mirrors past attitudes to homosexuality, which was classified by the APA as a mental illness until the 1973 edition of their DMS.

The Tribnal asserted that the ‘de-psychopathologisation’ of gender dysphoria and view in 2016/17 that transgenderism was no longer to be regarded as mental illness, was highly relevant.

The reclassification of transgenderism as a somatic state related to sexual health, as opposed to a mental illness, had clear implications for the competencies necessary to deliver safe and effective care to those presenting with gender dysphoria.

The Tribunal therefore supported Dr Webberley’s case that, as an experienced GP and a doctor with a longstanding professional interest in sexual health, in the healthcare needs of minorities, such as gender-variant persons, and in the administration of hormone therapies, she was competent to provide safe and effective care to Patients A, B and C. The Tribunal found that Dr Webberley was hampered by the lack of formal training opportunities in transgender health at the material time and that her lack of validated qualifications in transgender healthcare cannot, therefore, be held against her.

The Tribunal further found that that GPs are competent to recognise and treat, or refer onwards for specialist treatment, persons with mental ill health arising as a reaction to minority stress. Dr Webberley, as an experienced GP and as a doctor with a special interest in transgender healthcare, was most certainly competent in those respects.

The Tribunal did note that ASD is overrepresented in the gender dysphoric population. For example, WPATHSOC7 states that ‘The prevalence of autism spectrum disorders seems to be higher in clinically referred, gender dysphoric children than in the general population.’ Published estimates of the prevalence of ASD in those referred to gender identity clinics vary from 9% to 26% and that valid consent was a ‘profoundly important issue in transgender health care’ given the potentially irreversible effects of gender-affirming hormones. Hormone ‘therapy’ was already a long established treatment in transgender healthcare – what was different now however was the much younger ages at which such intervention was sought.

The Tribunal concluded that it was safe to give testosterone to girls under 16 – or at least there was no evidence to say it was unsafe. It relied in part on a study that included a mere thirteen patients below the age of sixteen and reported no adverse outcomes. This has led to a ‘stage-not-age’ view of when administration of sex steroids is clinically indicated: some experts, such as Dr Shumer, now deem that it is the pubertal stage of the patient that matters, not their chronological age.

The Tribunal then considered if Dr Webberley was competent to prescribe hormones. It found Dr Webberley an ‘impressive witness’ with a ‘depth and breadth’ of knowledge of endocrinology and hormone therapies and she was competent.

The Tribunal stressed that a wish to reduce waiting times or ‘give in to insistent demands from patients for immediate treatment’ can never allow a doctor to compromise patient safety and care – but when an established facility is unable to cope with the demand for its services, it is incumbent on other practitioners in the sector to seek out alternative ways to help those patients in pressing need of attention but facing inordinately long waiting lists. That some patients with gender dysphoria are so desperate they are driven to suicide gives considerable impetus to this need for alternative approaches. No evidence is given to support this suggestion that depriving hormones will lead to suicide.

The Tribunal found that in 2016/7 there was immense pressure on GIDS and that some aspirant service users were, as a result, left in a state of desperation and the ‘rigid and protocol- driven approach’ at GIDs did not meet their needs.

The Tribunal found as a matter of fact Dr Webberley did adopt a multi disciplinary approach to her practice, by developing professional links with psychologists and counsellors and offered a ‘bespoke approach’ to her care of patients. The Tribunal went so far as to comment that Dr Webberley’s approach might be regarded as being at the vanguard of this evolving approach to transgender care. This is despite the various findings about Dr Webberley’s failure to provide adequate standards of care. She failed to provide adequate follow up care to patient A. There was no communication from Dr Webberley and A’s mother between July 2016 and February 2017. She had a duty to communicate with GIDs who were also treating A and she did not, knowing that if she did the Tavistock would withdraw treatment. She failed to ensure adequate records were kept, particularly about issues around consent. Her reliance on sending emails as a substitute for proper record keeping was ‘lazy’.

It is also deeply alarming to see reliance placed by the Tribunal on Dr Webberley’s ability to rely on her husband Dr Michael Webberley, described as ‘a general physician who had experience in endocrinology’. There is no reference to Dr M Webberley’s on going fitness to practice tribunal hearing which has seen highly critical evidence from a number of expert witnesses.

An email from A’s mother makes for particularly sad reading

‘Hi,

I attempted to contact you and Katie numerous times regarding the next prescription of testosterone, the blood tests that you stated were a necessity, and to let you know that without the authorisation of NHS professionals, my GP would not assist with this.

However, I received no response for two whole months. You claimed that they had not been received, and that I should instead send messages to your personal email address, but I had already done this, in addition to sending messages to the email address of the secretary. While one or two could perhaps have slipped through the net, it didn’t seem feasible that they all had gone wayward.

It was obviously hugely concerning that we had apparently been left devoid of guidance, advice, support, prescriptions or ability to get any tests performed, or even any correspondence. So, after the Tavistock had phoned me a few times, I had to admit that we had already been receiving treatment from elsewhere, though the details were not discussed. Dr Gary Butler, [Patient A’s] endocrinologist, personally rang me to ask what dosage of testosterone [Patient A] was receiving, and when I divulged the figure, he was exceptionally concerned, and dedared it was the dosage only an adult should take. He elucidated that a child of [Patient A’s} age should only be taking a small fraction of the dosage, which would allow him to progress through puberty at the same rate as his peers, and mentioned that the breaking of the voice should take a few years -which I recognised to be true from when my older son’s voice broke. The fact that [Patient A’s] broke within two weeks, including other developments, was alarming to say the least. This new information, coupled with the fact that we felt so abandoned, assisted with the decision to continue seeking assistance from the NHS, as at that particular juncture we felt we had no other option! It wasn’t until quite some time later that I received an email from you asking for an update, to which t responded, and then you replied that you hadn’t received any of my messages. So, basically we are now back in the hands of the NHS, and left to wait the painful three years until [Patient A] is 16! However, travelling abroad for treatment is still an option being considered, as [Patient A] doesn’t want to wait until then.

I wish you all the best, but do think that procedures should be thorough, and from what I have been told, you are not an endocrinologist, nor an expert with hormones, and that treating adults in this field Is fine, but treating children is a different kettle of fish entirely. This is obviously not from me – I just want what is best for my son, and feel like I’m in a horrendously tricky situation, and am rather depressed knowing that following the NHS guidelines will mean my son has to wait until he is 16, whereas other countries can prescribe from 14, and have prescribed, cross-sex hormones to children of 12 with great success!’

It is also extremely concerning to read about how A was now behaving, with episodes of violence and suffering chronic depression.

It is alarming to read that A’s mother believed her daughter to have been displaying repulsion at anything conveying their biological gender, going back to when they were just 9 months old (which is as early as they were able to display it) What exactly it was that this baby displayed which could be interpreted as such repulsion, is not explained but it raises interesting and worrying questions about the environment in which A was raised and the degree of parental influence on how ‘repulsion’ was perceived and interpreted

With regard to Patient B, Dr Webberley had not carried out sufficient assessment of her mental health state which meant she had not been able to properly consider if some of B’s disturbing behaviours required treatment for something other than gender dysphoria. With regard to Patient C, although Dr Webberley had sought assistance from Dr Pasterski, she had not considered when assessing C other possible alternative diagnoses that may provide an alternative explanation for the dysphoric feelings or complicate them.

So the determination gives some useful indication of where Dr Webberley fell short, which hopefully can be of assistance to other GPs. But its explicit assertions that medical transition of the under 16s is ‘safe’ and objections to it are some kind of bigotry should profoundly worry all of us charged with the protection of children.

Children, competence and consent: An overview.

Keira Bell’s case, which began on October 7th 2020 has provoked a lot of comment about the issues of children and their capacity to consent to medical treatment. This is an attempt to provide a quick over view in easy to understand language. If you are interested in this area in greater detail, I set out some ‘further reading’ at the end of this post.

Medical treatment is only lawful if given in an emergency or with informed consent.

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.”

In a genuine emergency, doctors are unlikely to be penalised for treating a patient on the spot. In all other cases, medical intervention to which the patient does not consent is likely to be a crime.

Someone is said to lack capacity if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.

Some people lack capacity because their disability or injury brings them under the terms of the Mental Capacity Act and they cannot understand or weigh up the necessary information. These cases may have to go to the Court of Protection so the Judge can decide what is in their best interests.

Some people lack capacity because they are a child. A child is a person aged between 0-18. While most people would agree that a child aged 4 is unable to make any serious decisions on his own, the waters get muddier the older a child gets, as their understanding and desire for autonomy increases.

A child over 16, who doesn’t have any kind of brain injury or disability, is presumed to be able to consent to medical treatment as if an adult, under the Family Law Reform Act 1969.

Children under 16 may have capacity if they have enough understanding of the issues – this is called Gillick competence, from the case of the same name.

Adults who have parental responsibility for a child can give consent when a child cannot. However, the older the child gets, the more likely there is to be tension between what the adult and child think is best.

If the child, parents or doctors cannot agree about what treatment is best, then this has to come before the court to decide. A very sad example of this which got a lot of media attention, is the case of Alfie Evans, a toddler whose parents disagreed very strongly with the medical advice that his life should not be prolonged.

Applying the basic principles to the Bell case

I have seen some very odd comments about this case. However, first – if it is correct that Bell’s lawyers are arguing that NO child ever could consent to taking puberty blockers, I agree this is a bold submission and would certainly seem to be moving away from the clear statutory recognition of the likely autonomy of the 16 year old child. It may be that this submission rests on the grave concerns about the experimental nature of such treatment – and certainly the Tavistock does not seem to be able to provide the court with much if any hard data about the longer term consequences of this.

But any suggestion that the Bell case will somehow ‘destroy’ Gillick competence and deny 15 year old girls the right to contraception or abortion, is simply wrong.

The first and basic point is that Gillick was decided by the House of Lords – now the Supreme Court. The High Court has no power to change or alter the decision of the Supreme Court. Second point is that even if Bell’s case does succeed in getting a declaration from the High Court that NO child can ever consent to taking puberty blockers for transition, this will not impact other areas of decision making for children about medical treatment.

This is because the nature and quality of such treatments is well known and researched. It is therefore possible to weigh up the consequences, benefits and risks, in a way many would argue is simply impossible for puberty blockers given to aid ‘transition’ rather than to deal with precocious puberty.

When the nature and quality of such treatments are not known and doctors are unhappy to offer it, or a child (or parents) is refusing consent to a treatment that the doctors say is essential, then the matter will need to come to court.

Conclusion

I await the judgment in Bell with very keen interest. It will certainly need to cover all the areas I briefly touch on above, and hopefully will make such vital issues much clearer for many.

I accept a small minority of children DO need access to puberty blockers to prevent the development of sex characteristics they find very distressing. But I think they will be a tiny minority. I think the evidence to dates shows very clearly the impact of some kind of social contagion around issues of ‘gender identity’ which has led to staggeringly high numbers of children seeking ‘transition’ as a cure all for their emotional distress.

While I do not agree that NO child is capable of consenting to take these drugs, I certainly agree that the evidence base which will inform them of the risks and benefits is lacking, and dangerously so.

EVERY child should be given the right information in order to make these decisions.

‘Consent’ and its importance

I am grateful for this post written by a parent about the practical and emotions impacts on parents around the issue of consent. This is particularly relevant in the context of much of the concern arising over use of section 20 accommodation under the Children Act 1989. For more detailed discussion about the impact of section 20, see this post.

noun

permission for something to happen or agreement to do something.

“no change may be made without the consent of all the partners”

synonyms: agreement, assent, concurrence, accord; More

verb

give permission for something to happen.

“he consented to a search by a detective”

synonyms: agree to, assent to, allow, give permission for, sanction, accept, approve, acquiesce in, go along with, accede to, concede to, yield to, give in to, submit to, comply with, abide by, concur with, conform to

“all the patients consented to surgery”

Pretty clear isn’t it, yet speaking as one of any number of parents who have been duped by having their children removed under S20 , the term consent does not seem that easy to understand by all social workers.

This short post is not about the legal implications, I am not a lawyer, but the practical and emotional effect on parents by dispensing with their consent. Consent is important , it is normally needed when someone or something could invade your privacy or potentially cause you harm. For instance we all have to consent to cookies on various website’s which store our browsing history, more seriously all sex must be between consenting adults if not it is a crime. Having you child removed from you without your consent is a violation, it feels as emotionally harmful as rape and that is no exaggeration. You are completely powerless, nobody will listen and you are as frightened as hell. You don’t know were to turn and you believe the social worker because they sound knowledgeable. It is the power imbalance at its worst.

If you then find out your child has been removed unlawfully, you ricochet into the grief cycle starting with anger, which plays straight into the hands of the local authority who will deem you as mentally unstable and /or non compliant. You will feel guilt for not knowing that what happened was wrong and that you have let your children down. Closely followed by shame that you were taken in. Night terrors , can become the norm from the resulting PTSD.

Practically , parents are encouraged to break the law with regard to the benefits system . I remember asking whether I should still receive child benefit and was told to do so. Yet if a child lives elsewhere for more than 8 weeks the parent is supposed to stop claiming https://www.gov.uk/child-benefit-child-lives-with-someone-else .

Many parents actually then up in debt , on top of their other problems whilst they are having to downsize. They may be unlawfully placed on supervised contact, so on top of their grief, their life has to revolve around getting to contact. Jobs and other commitments are disrupted leading to added strain. Local Authorities may pay out of pocket expenses for travel to contact , but these are normally a minimum and paid late. Plus most parents will have no say as contact is gradually whittled down. Contact may very well be supervised despite being unlawful. All of this is likely to have occurred without the benefit of legal advice.

Could you imagine going for an operation without the possible implications explained to you or even buy a car on a loan and you signing to say you understood. Consent matters, especially in removal of something more precious to you than anything in the world. Lack of consent leaves open wounds for years after, I know mine are still festering, that’s why I had to write this post. I hope it helps to stop the coercion of parents happening.

The Social Worker tells me my child needs medical treatment?

This post looks at the legal and practical difficulties parents may face if they disagree with doctors or social workers about the medical treatment their child needs. Doctors cannot examine or treat anyone without getting consent, unless the situation is life threatening and urgent. Medical intervention can range from the trivial to the really serious and the further up the scale of intervention you go, the more likely you are to encounter disagreements about the best way forward. Who gets to decide and how?

The case of Ashya King

For more detail about Ashya King’s case see this post from the Transparency Project.

The issue of managing disagreements between parents and doctors came to the fore in September 2014 with the case of Ashya King, a five year old boy who was being treated for cancer in the UK. His parents and the hospital could not reach agreement about the best treatment options for Ashya; his parents removed him from the UK to seek treatment abroad and were then arrested after the hospital informed the police and the local authority (LA) of their disappearance.

The LA applied for Ashya to be made a ward of court, which meant that no decision could be taken about his treatment without permission from the court. Upon arrest, Ashya’s parents were kept apart from their son for several days. The case caused enormous concern both in the UK and internationally. Of particular concern is the parents’ view that they had no choice but to leave in the way they did as they were alarmed by the hospital suggesting that the LA would need to get involved, even to apply for an emergency protection order. It is clear that the working relationships between the parents and the doctors must have seriously deteriorated, if not broken down completely.

When the case came before Baker J on September 8th he discharged the wardship. He found that the earlier decision to make Ashya a ward of court was justified on the information that the court had before it. But now the position had changed; there was a clear treatment plan which was not opposed by either the LA or Ashya’s guardian. The Judge could not comment on the desirability of issuing a European arrest warrant which resulted in the parents’ detention, but commented that it was clearly not in Ashya’s best interests to have been separated from his parents.

So what happens if you disagree with the treatment proposed by professionals?

The importance of consent.

The fundamental principles of consent were discussed in the case of A (Children) [2000]. Every adult person of sound mind has the right to say what can and can’t be done to his body. Without consent, medical examinations or procedures are unlawful – they are either the criminal offence of assault or the civil offence of trespass to the person. Therefore it is very clear that consent must be given to any kind of treatment or examination unless its an emergency and doctors say they had to act out of ‘necessity’.

Consent is only valid if it is:

voluntary – given freely;
informed – understanding the implications of consenting;
and the person giving it has capacity – they are capable of making decisions.

Who does not have capacity?

A ‘child’ is defined in the Children Act as a person between the ages of 0-18 years, but it’s really important to distinguish between children who are 16 and older as 16-17 year olds can provide consent to treatment as if an adult.

Children under 16, unless found to be ‘Gillick competent’ do not have the capacity to consent to treatment. A child will have capacity only if he or she is able to understand the nature, purpose and possible consequences of the treatment proposed. For a useful discussion of issues that arise around understanding and capacity see the article about transgender children in Further Reading below.
Adults or children over 16 years, may not have capacity as defined by the Mental Capacity Act 2005, if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.

An example of a situation where an adult was found not to have capacity to consent to medical treatment, is the ‘forced C-Section’ case of 2013 (see P (A Child) [2013) where the pregnant mother was experiencing serious mental health difficulties and the hospital were concerned about the risks of a natural birth in such circumstances.

Who do doctors ask if the patient doesn’t have capacity?

They will need to get:

consent from someone who has parental responsibility (PR) for the child; or
permission from the court in the case of an adult who lacks capacity or where there is a dispute between adult carers of the child.

Parental Responsibility

Parental responsibility is defined at section 3 of the Children Act 1989. The British Medical Association (BMA) ethics guidance from 2008 describes PR in these terms:

Parental responsibility is a legal concept that consists of the rights, duties, powers, responsibilities and authority that most parents have in respect of their children. It includes the right to give consent to medical treatment, although as is discussed below, this right is not absolute, as well as, in certain circumstances, the freedom to delegate some decision-making responsibility to others. In addition, competent children can consent to diagnosis and treatment on their own behalf if they understand the implications of what is proposed (see below). Those with parental responsibility also have a statutory right to apply for access to the health records of their child, although children who are mature enough to express views on the issue also need to be asked before parents see their record. Parental responsibility is afforded not only to parents, however, and not all parents have parental responsibility, despite arguably having equal moral rights to make decisions for their children where they have been equally involved in their care.

In theory, doctors only need consent from one person with PR to go ahead with treatment. However this will rarely be a wise course of action if there are strong objections from others who have involvement in the child’s upbringing. The best ethical option in cases of dispute, is to apply to the court for an order to either allow or refuse the treatment in question.

An example of such application to court can be found in the case of Neon Roberts, whose parents disagreed about the best way to treat his cancer. Parents may also disagree about specific medical interventions, such as circumcision or blood transfusions on religious grounds.

While the parties are waiting for a court decision regarding treatment, doctors should only provide emergency treatment that is essential to preserve life or prevent serious deterioration of health.

If the doctors consider that by refusing consent to treatment you are not acting in your child’s best interests, they will need to raise this issue with the LA who may need to consider issuing care proceedings.

Further information for doctors and patients.

The British Medical Association (BMA) publishes guidelines and can be contacted for advice.

BMA members may contact: 0300 123 1233 or British Medical Association Medical Ethics Department BMA House, Tavistock Square, London WC1H 9JP Tel: 020 7383 6286 Email: [email protected].
Non-members may contact: British Medical Association Public Affairs Department BMA House, Tavistock Square, London WC1H 9JP Tel: 020 7387 4499 Email: [email protected]

What if I am sharing PR with the LA?

If a care order has already been made then you share PR with the LA. It is clear that it would be unwise for doctors to feel they need only seek permission from the LA, particularly if the proposed treatment is significant. Efforts should always be made to reach agreement, particularly if the proposed medical intervention is not going to involve significant impact on a child’s bodily integrity.

If you don’t feel able to agree to relatively simply medical procedures or assessments, that may raise question marks in the minds of the professionals about how you are discharging your parental responsibility. It is not difficult to see how such situations can spiral out of control (as in the case of Ashya King above) with parents being very suspicious of doctors and vice versa. As ever, good communication is the key; if you are worried about a particular procedure, say so and say why. Ask for further explanation and discussion.

If agreement just isn’t possible, again applying to court may be the only option. The LA cannot simply make any decision they like even when they do share PR under a care order. They can only act when it is ‘necessary’ to safeguard or promote the child’s welfare. See section 33(4) of the Children Act 1989 and considerations of proportionality under Article 8 of the ECHR. The LA also remain under a duty to consult parents before making any serious decisions about a child who is subject to a care order.

See this case from 2013 where Kingston on Hull City Council were subject to a successful judicial review of their failure to consult parents. The Judge made clear at paragraph 58 his views about the duty to consult:

I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia): “Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.” … “If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

Principles of law when there is disagreement about the treatment a child needs.

If it is not possible to reach agreement, the court will have to make a decision about what kind of treatment/intervention is in the best interests of the child. Baker J set out the relevant principles to be applied in such cases (see para 29 of his judgment in September 2014):

The child’s welfare is the most important issue before the court ;
The court must also have regard to the child’s rights under the ECHR; most pertinently the right to life under Article 2 and the right to respect for family and private life under Article 8;
Responsibility for making decisions about children rests with the parents and the state should only interfere if the child is suffering or at risk of suffering significant harm.

For consideration of how the court should approach a case when doctors wish to stop giving life sustaining treatment to a seriously ill child, see the case of Kirklees Council v RE [2104].

What does ‘section 20’ mean? And when should it be used?

The law is perfectly clear but perhaps requires re-emphasis. Whatever the impression a casual reader might gain from reading some newspaper reports, no local authority and no social worker has any power to remove a child from its parent or, without the agreement of the parent, to take a child into care, unless they have first obtained an order from a family court authorising that step …

NB We now have the benefit of a March 2021 ‘Best Practice Guide’ from the Public Law Working Group.

Basically, section 20 of the Children Act 1989 is about the LA’s duty to provide a child with somewhere to live because the child doesn’t currently have a home, or a safe home:

there isn’t anyone who has parental responsibility for him (for e.g. an asylum seeking child who has come to the UK on his own);
the child has been lost or abandoned;
the person who has been caring for the child can’t provide him with a suitable home, whatever the reason for this and regardless of whether this is short term or long term problem.

It is a very important section with regard to care proceedings, because it often happens that a local authority (LA) will ask parents to sign a ‘section 20 agreement’. This means the parents are agreeing to let their children live somewhere else, usually in LA foster care, while the LA carries out more investigations or the parents get some time to sort themselves out (‘respite care’).

The child is therefore out of the parents’ care without the need for the LA to go to court and get the Judge to make a care order. Because the court is not involved to oversee this, it’s very important that section 20 agreements are used properly and don’t become a way of letting the case drift on without proper consideration or getting a care order ‘by the back door’.

I discuss these issues further below:

What is the impact of section 20
What have the courts said about the requirements of section 20
When it goes wrong
What you can do if its going wrong

On 24th February 2016 the Transparency Project published Guidance for parents and professionals about the use of section 20, which you can download here.

There has been some controversy about ‘foster to adopt’ placements where section 20 is used to put a child in such a placement before the matter gets to court. You can read more about this, and the report of the Family Rights Group here.

Impact of section 20: the BIG difference between section 20 and a care order – the LA does NOT have parental responsibility

The difficulties around section 20 were summed up by Lady Hale in para 34 of the Supreme Court judgment Williams & Anor v London Borough of Hackney [2018] UKSC 37 (18 July 2018)

iThese cases illustrate a number of problems with the use of section 20: separation of a baby from the mother at or shortly after birth without police protection or a court order, where she has not delegated the exercise of her parental responsibility to the local authority or been given in circumstances where it is questionable whether the delegation was truly voluntary; retention of a child in local authority accommodation after one or both parents have indicated a desire to care for the child or even formally asked for his return; and a lack of action where the perception is that the parents do not object to the accommodation, even though this means that no constructive planning for the child’s future takes place. They also illustrate the dilemma posed to the local authority: something has to be done to look after the child but there are serious doubts about whether the parent can validly delegate the exercise of her responsibility. Equally, they illustrate the dangers if the local authority proceed without such delegation or obtain it in circumstances where the parents feel that they have little choice. There are none of the safeguards and protections for both the child and the parents which attend the compulsory procedures under the Act. Yet, rushing unnecessarily into compulsory procedures when there is still scope for a partnership approach may escalate matters in a way which makes reuniting the family more rather than less difficult.

Section 20 accommodation is very different to your child being removed from your care against your will under a care order. The LA do NOT share parental responsibility for your child just because you have agreed that your child should be in foster care under a section 20 agreement.
Under section 20(8) any person who has parental responsibility can remove the child from LA accommodation at any time unless there are objections to this by someone who has a child arrangements order to say the child lives with him/her (what used to be called a ‘residence order’), a special guardianship order or has care of the child by a special order of the High Court.
Section 20(4) says that the LA may provide accommodation for any child in their area, even if the child has a parent who is able to provide accommodation, if the LA thinks that they need to do this to keep the child safe.
Section 20(7) provides that the LA cannot provide accommodation for a child if there is someone who has parental responsibility for the child and objects to the LA providing the accommodation.

So if the parents won’t agree to section 20 accommodation, their child can only be removed by court order or by the intervention of the police using their special powers.

Problems have arisen when parents feel they have been ‘rushed’ or even bullied into making a decision to agree to let their children be accommodated under section 20. Sometimes, LAs get consent from only one parent but the other objects. A LA should always try to get the consent of everyone who has parental responsibility.

What do the courts say?

Evolving case law and the case of Williams v Hackney

A very important case when considering how section 20 should work is the case of Coventry City Council v C, B, CA and CH [2012]. This should be read together with the case of Williams and Another v London Borough of Hackney [2015]. See also the case of Medway Council v M and T [2015] which appears to be the highest amount of compensation paid for unlawful use of section 20 – £20K to both mother AND child.

In the Coventry case, Mr Justice Hedley gave guidance about what should happen if a LA want to remove a baby immediately or soon after birth – it can be appropriate to use section 20 in these circumstances but obviously it is vital to make sure the parents understand what is being proposed and give real consent.

The Hackney case, involved parents of 9 children who were taken into foster care in 2007 after the police intervened saying the home conditions were not suitable for the children to live in. The children spent about 2 months in foster care.

The parents took legal action against the local authority, saying it had acted unlawfully by taking the children into care under section 20 of the Children Act as they had not understood what was going on. The court found that they had not been informed of their right to object to the children’s continued accommodation under section 20(7) or of their right to remove the children at any time under section 20(8) and that their consent was not informed or fairly obtained (para 65).

Therefore Hackeny was found in breach of its statutory duty and the parents were awarded the £10,000 each and Hackney was ordered to pay 75% of their costs.

Hackney appealed and this decision was overturned on appeal in December 2016.

The Court of Appeal agreed with Hackney and pointed out that the word ‘consent’ does not appear in section 20 – the relevant word is ‘objects’. At the time the children were accommodated pursuant to section 20, the parents were subject to bail conditions that prevented them from providing suitable accommodation for their children. Their consent was not required in these circumstances. There was no breach of the HRA and damages should not have been awarded.

However the Court of Appeal stated that guidance from other cases about issues of ‘consent’ was still relevant:

“The guidance given in the family court … identifies clear, co-operative and sensible ways in which a voluntary arrangement can be made between a parent and a local authority when a child may need to be accommodated; it is, in short, good practice guidance and a description of the process that the family court expects to be followed. For reasons of good administration, the practice guidance should continue to be followed … but a failure to follow it does not, of itself, give rise to an actionable wrong, or found a claim for judicial review.”

The case then went to the Supreme Court, the main ground of appeal being was there or was there not a lawful basis for the children’s accommodation under section 20 of the 1989 Act once the 72 hours of police protection under section 46 had expired? Judgment was handed down on 18th July 2018 in Williams & Anor v London Borough of Hackney [2018] UKSC 37 (18 July 2018), dismissing the appeal.

The UKSC commented that it was potentially confusing to talk about ‘consent’ to section 20 and it was better to refer to the process as the parent agreeing to delegate their PR to the LA for a period of time. However, it remained important that the parents genuinely understood what was going on so previous ‘good practice’ should be adhered to.

Lady Hale considered at paras 57 and 58

Whether the local authority had a lawful basis to continue to accommodate the children all depends, therefore, on whether the parents’ actions after the expiry of the police protection order amounted to an unequivocal request for the children to be returned. The judge did not see the bail conditions as an insuperable impediment to their making such a request (para 65.b). There could have been a number of solutions, including the parents or the Council persuading the police to vary bail to allow alternative accommodation with family and friends, if there were any to help, or with the parents themselves. Breaking police bail conditions is not a criminal offence and there was no evidence of what would have happened if the children had returned home. The bail conditions did not operate to give the Council any greater powers than they had under the 1989 Act. The ostensible reason for the conditions was not a good reason for keeping all eight of the children – particularly the baby – apart from their parents. It is not surprising that they were lifted soon after contact from a senior Council officer, even though there was still the prospect of criminal proceedings against the parents.

But it is difficult to know how to construe the events of 9 July, when the parents went to the Council’s offices and, according to them, asked for the return of their children. The judge accepted the social worker’s denial that she had told them that the children would never be returned. But he found it probable that they were told that the document they had signed authorised the children to be kept, because that is what she believed at the time. However, he went on to say that “it is difficult to determine whether, and if so on what terms, the claimants asked for their children to be returned”. Given his earlier finding about the events of 6 July, he made no finding about it (para 68). It is therefore difficult for us to construe these events, either as a clear objection to the children’s accommodation under section 20(7) or as an unequivocal request for their immediate return under section 20(8). There would be little point in our sending the case back to the judge for him to make findings on this matter. It is fairly clear that, on that date, he would have regarded the continued interference in the family’s life as a proportionate means of protecting the children from harm. In those circumstances, even if the events of 9 July had removed the lawful basis for the local authority’s actions for a matter of days, which must be doubtful, no damages would be payable.

The Supreme Court therefore decided that as the parents had not objected or unequivocally requested the children’s immediate return, there was a lawful basis for the children’s continued accommodation under section 20.

Summary of legal principles from case law.

Considering the evolving case law, it appears that the ‘good practice’ guidance identified in earlier cases remains relevant and LA would be wise to ensure that it is complied with. A useful precis is found at the very final paragraph of Lady Hale’s judgment:

In sum, there are circumstances in which a real and voluntary delegation of the exercise of parental responsibility is required for a local authority to accommodate a child under section 20, albeit not in every case (see para 40 above). Parents with parental responsibility always have a qualified right to object and an unqualified right to remove their children at will (subject to any court orders about where the child is to live). Section 20 gives local authorities no compulsory powers over parents or their children and must not be used in such a way as to give the impression that it does. It is obviously good practice in every case that parents should be given clear and accurate information, both orally and in writing, both as to their own rights and as to the responsibilities of the local authority, before a child is accommodated under section 20 or as soon as practicable thereafter.

As the Supreme Court did not resile from any of the guidance set out in previous cases, I will summarise it here.

Parents must give valid consent to section 20 accommodation; their agreement must be ‘real’ –
- but note Hackney case (above) where the parents were subject to bail conditions that meant they were prevented from offering a home to their children. Consent was not an issue in these circumstances. If parents are prevented from ‘objecting’ to section 20 accommodation this may be enough to make it lawful.
- Also note comment of Lady Hale in SC decision in Hackney (para 39) a delegation of parental responsibility (i.e. agreeing to section 20) can be “real and voluntary” without being fully “informed”.
The parents must understand what they are agreeing to; they must have ‘capacity’
The parents must have all the relevant information
Removing a child under section 20 must be fair and proportionate
Parents must be told they have a right to take legal advice
Parents must be told they have a right to withdraw their consent

These principles are dealt with in more detail below.

Agreement must be real – parents must give valid consent to section 20 accommodation

Every parent who has capacity has the right to give consent under section 20 to have their child accommodated by a LA (for a discussion of what is meant by ‘capacity’ see our post on the Mental Health Act 2005);
Every LA has the power to accommodate a child, if to do so is consistent with the child’s welfare.

The parent giving consent must have capacity – they must understand what they are agreeing to

every social worker obtaining a parent’s consent is under a personal duty to be satisfied that the person giving consent has the capacity to do so;
The social worker must actively consider the issue of capacity and consider the questions raised by the Mental Capacity Act 2005 at section 3 and in particular the person’s capacity to use and weigh all the relevant information;
If the social worker has doubts that the person has capacity they should stop trying to obtain consent and seek advice from the Team Leader or Management.

The parent must have all the relevant information to be able to agree

If the social worker is satisfied the parent is able to agree, the next question is whether the consent is ‘fully informed’. Does the parent:

- understand the consequences of consent or refusal?;
- appreciate the full range of choices available?
- know about all the relevant facts?

If the social worker is not satisfied the parent is ‘fully informed’ again, no further attempts should be made to obtain consent and further advice should be sought, including legal advice if necessary.

The decision regarding section 20 accommodation must be fair and proportionate

If the consent is considered to be fully informed, the social worker must then be satisfied that the giving of such consent and subsequent removal of the child is fair and proportionate.
To answer that question, the social worker should consider the current physical and psychological state of the parent, whether or not they have a lawyer, or have been encouraged to seek legal advice, whether it is necessary for the child’s safety to be removed at this time or whether it would be fairer to seek a care order from the court.

The parents must be told they have a right to legal advice and can withdraw their consent at any time.

See para 65 of the Hackney judgment: a section 20 agreement HAS to convey that the parents have the right to withdraw their consent. The parents must also be told of their right to take legal advice. Otherwise their apparent ‘consent’ to section 20 may be no consent in reality. This is confirmed in the Supreme Court decision although the point is made that consent can be real without necessarily having ‘full information’. This is not a point I find easy to reconcile and presume that the focus then falls on what is ‘relevant’ information – which I assume is primarily being informed that the parent can remove the child from section 20 accommodation at any time.

When it goes wrong

The parents didn’t understand what was going on

For a case that went badly wrong, when the LA did not make sure the parents were supported to understand what was going on, see the case of H (A Child – Breach of Convention Rights: Damages) [2014]. The parents were awarded damages of £6,000 for breach of their human rights in a case that drifted due to unacceptable use of section 20 accommodation.

The court had real doubts about the reality of the parents’ consent in the case of P (A Child: Use of section 20) [2014] EWFC 775. The Judge commented at paragraph 32:

Finally, I would also add that on my assessment of the undisputed facts in this case there is real doubt as to whether [the LA] had proper consent from the parents to the accommodation of P after he was removed from the PGF. In the first statement filed by the [LA] there is an acknowledgement that the parents did not want P to be placed in foster care after he had been placed with the PGF. The author of the statement comments that in spite of this knowledge once he was moved to foster carers the parents did nothing to come and get him – as if the responsibility was somehow theirs. These parents go everywhere with an advocate. They are vulnerable young people. It is the responsibility of the local authority to ensure that they give proper consent. Unless they abandon their child, they do not give consent by omission. I should add that they have never abandoned him.

When it starts ‘drifting’: Judicial Warning

Sometimes, when a child is in foster care under section 20, that has lead to unacceptable drift and delay in making decisions about the child’s long term future. In the case of H (A Child – Breach of Convention Rights: Damages) it took the LA nearly a year to issue proceedings, while the child was in section 20 accommodation, a delay that the court decided was both ‘unjustified’ and ‘inexcusable’. Also, the LA did not take enough care to ensure the parents understood what was going on. The parents were awarded £6,000 each for breach of their human rights.

On 26th November 2014 the Designated Family Judge for Avon, North Somerset and Gloucestershire issued the following warning about the use of section 20:

Misuse of accommodation under section 20 of The Children Act 1989

1. There have been several recent instances in this area where it is quite apparent that accommodation of children under Section 20 of The Children Act 1989 has continued in an unstructured way for excessive periods of time and in circumstances where proceedings are either inevitable or otherwise highly likely to be issued. I regard such accommodation in those circumstances to be unprincipled and wrong. Further, where this occurs, it leads to unjustifiable delays in the completion of arrangements for the child concerned.

2. I refer, in particular, to the decision of Hedley J in Re CA (A baby) [2012] EWHC 2190 in which guidance is given about the use of accommodation under that section. It includes guidance that the Local Authority should consider: ‘Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement’. That question should be read as if the word ‘fairer’ were to be expanded so that the question reads: ‘Would it be fairer and in the better interests of the child in this case for this matter to be the subject of a court order rather than an agreement?’ It is not in the interests of a child for accommodation to be used in the unstructured way that I have described in paragraph one above.

3. Therefore, in any cases before District Judges or Magistrates in this area where there is any significant suggestion that accommodation under section 20 has been misused in the manner that I have described, the case should be listed before a Circuit Judge following the Case Management Hearing. Circuit Judges are encouraged to give judgments on any such issues that arise before them on referral or on a CMH listed before them. Where possible and appropriate, the judgments should be placed on Bailii in accordance with the transparency provisions. I consider it to be in the public interest that any such misuse of accommodation under that section should be made public.

HHJ Wildblood QC – 26th November 2014.

In the case of P (A Child: Use of section 20) [2014] EWFC 775, the child had been in section 20 accommodation for 2 years whilst the case drifted. Then there were enormous problems in getting another LA to agree to help the parents with housing. The Judge commented at para 30:

It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has “disabled” these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents’ lawyers making clear that they did not give their consent. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.

In these situations it is the local authority that holds all of the power. I think it likely the mother was told that if she did not agree to P’s accommodation then the LBR would issue proceedings. Parents are unlikely to want to drive the local authority to issue proceedings and so the vulnerable are left almost powerless to object. Meanwhile the child is “parked” and the local authority is under no pressure or scrutiny to ensure that it is dealing with the case in an appropriate and timely fashion. In my capacity as DFJ for East London I warn that there will be nowhere to hide for those authorities in this designated family area who fail the children in their borough in this way.

There was further serious criticism about the misuse of section 20 in the case of A (A Child) in 2015 where the President of the Family Division stated at paragraph 99 of his judgment:

Quite apart from all the other serious failures, the delay in this case was shocking. A was born on 11 January 2014. There had – appropriately and commendably – been much pre-birth planning. Yet it was not until 16 September 2014 that the care proceedings were issued. This delay is, to all intents and purposes, unexplained. The gap was covered by the local authority’s use of section 20 in a way which was a misuse, indeed, in my judgment, an abuse, of the provision.

There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated. I draw attention to the extremely critical comments of the Court of Appeal in Re W (Children) [2014] EWCA Civ 1065, as also to the recent decision of Keehan J in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam).

Unfortunately, its still going wrong. HHJ Wildblood QC identified what had gone awry in Bristol City Council v S [2015]

The circumstances of the children were allowed to drift in the pre-proceedings stage and the use of section 20 of the Children Act 1989 was too prolonged.
The absence of a meeting of professionals from the Local Authority’s Children’s and Adults’ Services in the early stages of the Local Authority’s intervention.
A lack of understanding of The Care Act 2014.
There were inadequate assessments of the mother in the pre-proceedings stage. If there was insufficient information available to the local authority for it to formulate a satisfactory care plan at that stage a proper and full psychiatric assessment of the mother should have taken place within the pre-proceedings stage. It should not have been left to the time of the proceedings.
The apparent lack of information held by Dr. S as to exactly what has been provided to the mother by way of therapy within the community.

EDIT The case of Herefordshire Council v AB [2018] EWFC 10 (1 February 2018) reveals further serious unlawful use of section 20; Mr Justice Keehan describing this case as representing “two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge”. Once child spent 8 years in section 20 accommodation from the ages of 8 – 16 and the other spent the first 9 years of his life without any plan for permanent accommodation.

It’s going wrong and you don’t agree to section 20 anymore

If you don’t want your child in foster care any more then you can stop agreeing at any time. BUT this may mean that if the LA aren’t happy with you taking your child home, they may want to try to stop you.

To do this lawfully, there are only two options:

The LA try to persuade the police to exercise their powers to take a child to a place of safety for up to 72 hours;
OR the LA will have to apply to court for an order.

If they think the situation is urgent they might apply for an Emergency Protection Order. See our post on interim removals.

In some situations, parents might be better off if there was an application for a care order – this will ensure the matter is now subject to a strict court timetable and a judge will be in charge of making decisions. Being involved in care proceedings will also mean parents can get free legal advice and representation.

The LA want me to sign a ‘written agreement’.

Often section 20 agreements go hand in hand with other written agreements; for example, setting out what the LA would like the parents to do or stop doing, while their child is in foster care. These documents don’t have any specific legal force but they are often relied on in evidence in later care proceedings to show how co-operative (or un co-operative) the parents have been and therefore, how much they can be relied on in the future.

Written agreements should not be used to get care orders ‘by the back door’. See the case of Re W [2014] for discussion about this. Also, read this blog post by suesspicious minds for further consideration about written agreements and their consequences.

His advice to parents is:

Don’t sign one unless you understand every single bit, and you’ve been told clearly what will happen if you don’t stick to it;
If you have a lawyer, you should ask for legal advice BEFORE you sign it. If you don’t have a lawyer, say that you want the Local Authority to hold a Meeting Before Action, so that you can have free legal advice about the agreement;
If you think that something isn’t fair, say so;
If you’re willing to do what is being asked, but you want help, ask for that help to be identified and put in the agreement;
Never ever sign a written agreement if you don’t intend to stick to it – your position is made worse by signing it and not doing it than by not signing it.

Section 20 – other issues

Watch out for section 22 of the Adoption and Children Act 2002

There can be serious consequences flowing from section 20 accommodation and parents need to be aware of these. In particular, parents will need to bear in mind section 22 of the Adoption and Children Act 2002 which states that if a LA is providing accommodation for a child, the LA MUST apply for a placement order if :

they think the conditions of section 31 of the Children Act are met (significant harm);
and they are satisfied the child ought to be placed for adoption.

See further LB v London Borough of Merton [2013] EWCA Civ 476.

See further discussions at The Transparency Project about the ‘foster to adopt’ controversy, where parents may agree to place babies in such a placement, under section 20, therefore without the oversight of the court.

Review and monitoring of section 20 accommodation.

Under the Review of Children’s Cases Regulations the LA must appoint an Independent Reviewing Officer (IRO) to carry out the functions in section 26(2A) of the Children Act 1989;

participating in the review of the case in question;
monitoring the performance of the LA’s functions in respect of the review;
referring the case to Cafcass, if the IRO thinks it is appropriate.

Every case must be reviewed within 4 weeks of the child being provided with accommodation and a second review must follow after that within 3 months. After this second review, the reviews must be at least every six months. The LA should be considering whether or not the child can go home at these review meetings.

The IRO is under a duty to:

make sure that the child’s views are understood and taken into account;
to identify who is responsible for making sure decisions taken in the review get acted upon;
inform senior management at the LA if reviews are not properly carried out;
to assist the child to obtain legal advice; or
to find out whether an appropriate adult is able and willing to provide such assistance or bring the proceedings on the child’s behalf.

Making parents pay for section 20 accommodation?

For consideration of the very odd situation outlined by Schedule 2 of the Children Act, see this excellent blog post by suesspicious minds. Such charges can’t be imposed on any parent who is receiving state benefits and they don’t apply to any child subject to a care order.

The Schedule reads:

Schedule 2 para 21. —(1) Where a local authority are looking after a child (other than in the cases mentioned in sub-paragraph(7)) they shall consider whether they should recover contributions towards the child’s maintenance from any person liable to contribute (“a contributor”)

Parents on bail: condition not to contact their children

The court initially stated in Williams and Another v the London Borough of Hackney [2015] that the LA should still get informed consent to section 20 accommodation, even when the parents were subject to bail conditions that meant they could not have unsupervised contact with their children. This was overturned by the Court of Appeal who pointed out that the statute uses the word ‘object’ not ‘consent’ and the parents clearly couldn’t ‘object’ to the LA providing their children with accommodation, when they were prevented by their bail conditions from giving them a home. See discussions above and in particular the comments from Lady Hale in the Supreme Court judgment about bail conditions and their impact.

The Facts

The decision in re J

The Case of Q

Commentary

DETERMINATION ON THE FACTS – 22/04/2022

Suggested way forward

Background

Further reading

Applying the basic principles to the Bell case

Conclusion

Further reading

The case of Ashya King

So what happens if you disagree with the treatment proposed by professionals?

The importance of consent.

Who does not have capacity?

Who do doctors ask if the patient doesn’t have capacity?

Parental Responsibility

Further information for doctors and patients.

What if I am sharing PR with the LA?

Principles of law when there is disagreement about the treatment a child needs.

Further reading

NB We now have the benefit of a March 2021 ‘Best Practice Guide’ from the Public Law Working Group.

Impact of section 20: the BIG difference between section 20 and a care order – the LA does NOT have parental responsibility

So if the parents won’t agree to section 20 accommodation, their child can only be removed by court order or by the intervention of the police using their special powers.

What do the courts say?

Evolving case law and the case of Williams v Hackney

Summary of legal principles from case law.

Agreement must be real – parents must give valid consent to section 20 accommodation

The parent giving consent must have capacity – they must understand what they are agreeing to

The parent must have all the relevant information to be able to agree

The decision regarding section 20 accommodation must be fair and proportionate

The parents must be told they have a right to legal advice and can withdraw their consent at any time.

When it goes wrong

The parents didn’t understand what was going on

When it starts ‘drifting’: Judicial Warning

Misuse of accommodation under section 20 of The Children Act 1989

It’s going wrong and you don’t agree to section 20 anymore

The LA want me to sign a ‘written agreement’.

Section 20 – other issues

Watch out for section 22 of the Adoption and Children Act 2002

Review and monitoring of section 20 accommodation.

Making parents pay for section 20 accommodation?

Parents on bail: condition not to contact their children

Further reading