The court dismissed the parents’ applications, finding there was no evidence that EE at age 17 lacked capacity and no evidence that she sought imminent treatment. There was no ‘matter’ before the court to undertake an assessment of capacity. This case has provoked controversy about the extent to which any person who wants to remove healthy parts of their body can be said to have ‘capacity’ but the parents’ legal action appeared doomed at the outset on the basis of the evidence they presentedand their obvious hostility to ‘LGBT’.
EE’s parents applied to court in June 2023 under the inherent jurisdiction and via the Court of Protection under the Mental Capacity Act 2005 (MCA) with regard to their 17 year old daughter, who turned 18 shortly after the judgment. EE self identifies as a non binary lesbian and at the time was in the care of the local authority via section 20 accommodation. The parents wanted to instruct experts to assess her capacity and asked for an injunction preventing EE from having any kind of gender affirming medical treatment, arguing that she lacked capacity to make decisions about this.
EE and the local authority told the court that the parents were driven by prejudice against EE’s gender identity and pointed out that EE had no current plans for any medical treatment. Therefore, the court had no ‘matter’ under the MCA to make any decision.
Further, there was no sufficient evidence to rebut the presumption that EE had capacity under section 1(2) of the MCA. EE’s GP records contained no diagnosis of mental illness. The parents claimed EE had been diagnosed with ‘schizoptypal disorder’ by a psychiatrist in country X, from which the family originated, moving to the UK when EE was three.
EE could not recall speaking to any foreign psychiatrist and had received no medication. She alleged that her parents had been physically and emotionally abusive to her, which they denied. But there were police records that in July 2022 EE was assaulted by her parents who ‘did not like’ that she was ‘LGBT’. She asserted that she had tried to talk to her parents about this since she was 11, but they were very hostile and she gave up aged around 13/14.
There was a child protection medical and EE was found to have non accidental injuries, but there was no mention of any mental health issue or personality disorder in any of the reports at the time. A child protection conference followed, the parents now asserted that EE was undergoing a psychotic episode. EE returned home in August on the basis that there would be no further physical or emotional abuse from her parents.
But EE then discussed with her parents the desire to have ‘top surgery’ i.e. a double mastectomy to remove her breasts. The parents asked her to postpone any decision until she was 25 and EE asserts that they became increasingly controlling, insisted she undergo online therapy and persistently made homophobic/transphobic comments. The local authority undertook a Child and Family Assessment, with no concerns for EE’s mental health. By November 2022 matters had seriously degenerated to the point that EE’s father attempted to restrain her and she hit him. EE then agreed to be accommodated by the local authority.
The parents were very unhappy with this situation and asserted that the local authority had referred EE to Mermaids and was encouraging her to take testosterone. EE had a further medical assessment in February 2023 which raised no concerns and recorded a significant improvement in EE’s mood and outlook since leaving home. She expressed gender dysphoria, but had no current plans to engage in medical treatment.
The parents argued that EE lacked capacity to make decisions about any such treatment and relied upon the Cass Review that social transition should not be seen as ‘neutral’. The parents asserted that the wider paternal family had a history of mental health issues, EE had self harmed, used a binder, abused alcohol and drugs and these issues along with others showed that EE was unable to retain, use and weigh relevant information relating to gender affirming treatment. Therefore experts were needed to assess her.
The law
EE was 17 at the relevant time but was very close to 18, when the court would cease to have jurisdiction under the inherent jurisdiction. Therefore, the judgment focused on the legal principles under the MCA. This Act allows the court to make decisions in the best interests of those aged over 16 years, if they are found to lack capacity to make their own decisions. Section 1 of the MCA sets out its key principles – a person is assumed to have capacity, and cannot lack capacity just because he makes an unwise decision.
EE could only lack capacity if her inability to make decisions was due to ‘an impairment of, or a disturbance in the functioning of, the mind or brain‘ and due to this she could not understand information relevant to the decision, retain the information, use or weigh the information, or communicate her decision. Capacity is assessed in relation to the specific decision at the time the decision needs to be made.
Therefore the court couldn’t make any decisions under the MCA as there was no ‘matter’ to be decided; EE had no current plans for any gender affirming treatment. Even if there had been a ‘matter’ before the court, not only does the MCA presume capacity, EE had ‘legal capacity’ under section 8 of the Family Law Reform Act 1969 which sets up a rebuttal presumption that 16 year olds can consent to medical treatment.
The court examined the interplay between the MCA, FLRA and ‘Gillick competence’ in para 48, approving the position that a child under 16 must be found ‘Gillick competent’ to provide consent to medical treatment. Once the child is 16, their legal capacity is assumed and their mental capacity is examined under the MCA. Thus, absent any evidence that EE lacked capacity, she could at 17 make a decision to have gender affirming treatment. There was no need for any expert evidence.
The court noted at para 60 the kind of evidence it would need to engage with the applications made by the parents
In the absence of any gender affirming treatment being proposed at this time, the court does not have before it any evidence as to what such treatment involves, what the potential dangers and side effects of such treatment are, the nature and extent of the preparatory counselling with respect to the decision to have, and the consequences of, gender affirming medical treatment and any assessment of the treating clinicians of EE’s capacity to consent to such treatment.
Comment
The court did not make a finding that the parents considered EE mentally ill simply because of her stated sexuality and identification as ‘non binary’ but did comment at para 67 that the court was left with the ‘distinct impression’ that this was the case.
I agree that the evidence is sparse to suggest that gender affirming care has long term positive benefits. I agree it is sad to see EE assert (para 36)
I have thought about gender reassignment for many years, and it is something that has always been on my mind. I feel quite strongly about this, and I am of the view that my real life would begin once I undergo Bilateral mastectomy, also known as top surgery.
If in fact her ‘real life’ does not begin after the removal of her breasts then of course it is too late to reverse the surgery. It does not seem likely that EE is able at 18 to confidently foresee how she would feel about the amputation of her breasts when she is 30, alongside her possible infertility if she begins taking testosterone.
Many who objected to this decision on social media appeared to share the parents’ views that simply to claim a ‘non binary’ identity or want to remove healthy breasts, was in and off itself evidence of ‘profound mental illness’ that rendered EE incapable of making any decisions about gender affirming care.
But it is not the court’s place to prohibit an entire regime of medical or surgical treatment without compelling evidence. The courts have to place trust and reliance in the medical profession to stick to its own code of conduct. If EE has capacity, and can find a willing surgeon, she has the freedom to make unwise choices. I do not see how the court could have made any other decision on the evidence and the law before it.
I understand that many people were unhappy with this decision, but any changes to the culture around ‘gender identity’ and affirmative treatment will have to come from Parliament and the medical profession. My hope is that the final report of the Cass Review will continue to support therapeutic interventions as first call. If parents do wish to assert that their children lack capacity to make decisions about gender affirming care, then they are going to need to bring hard evidence to the court proceedings, which these parents could not.
While I personally think it is very sad that a young woman would ever contemplate drastic and irreversible surgery so that her ‘real life’ could begin, the simple response is that it is not my life, nor my breasts. EE may well regret such surgery when she is older, but the MCA exists to protect the freedom to make unwise choices. If asked to choose between ‘freedom to’ and ‘freedom from’, I choose the first, every time. And I must extend that freedom to all others with capacity.
I was recently asked to consider a case involving a 16 year old child in local authority care, following fears of child sexual exploitation. The local authority wanted to apply to the court for permission to put ‘spyware’ on the child’s mobile phone, in order to monitor any conversations the child was having with those who posed a risk of harm. The local authority made an application for permission under the inherent jurisdiction to deprive the child of liberty. The court raised a question mark about the appropriateness of this application – was it really a deprivation of liberty?
The questions raised here have broader applicability to on going tension between ‘paternalism’ (protect the child from his foolish decisions ) or ‘autonomy’ (allow the child the freedom to make decisions). I find it interesting that there is such intense scrutiny of a child’s access to a mobile phone but rather less of a child’s assertion that they have ‘changed sex’ and want access to cross sex hormones. Children aged 16 and over pose particular problems in this debate, but it is one we must keep on having.
The local authority wanted permission to restrict a 16 year old child’s access to the internet via a mobile phone or other device and in particular asked the court to give it permission to remove the phone and monitor the child’s access to the internet by installing ‘spyware’ that would log texts and messages. This was done with aim of protecting the child from further sexual exploitation and it was argued this was proportionate and necessary. The local authority suggested that these restrictions be in place for a relatively short period of time, and they could then be reviewed.
I identified the following questions to the court
Is removal or monitoring of a child’s mobile phone a deprivation of liberty?
If it is, is it lawful? i.e. a proportionate and necessary response in the best interests of the child or does the child have capacity to consent and does consent?
If this isn’t a deprivation of liberty, is it rather a a breach of article 8 ECHR (right to privacy)
If so, is that breach lawful?
If the proposed restrictions are neither a deprivation of liberty nor breach of article 8 ECHR, then the local authority does not require the authorisation of the court to exercise parental responsibility for the child. However, given the child’s age and the nature of the restrictions sought, it was sensible to put this matter before the court.
Use of mobile phones by teenagers in local authority care
A survey from Ofcom in 2014 showed that in the UK, 88% of sixteen-to-twenty-four-year-olds owned a smartphone. It seems unlikely that this percentage has fallen in intervening years. The use of mobile phones with internet access is now commonplace and most teenagers will have and use one. Although there are obvious risks inherent in the use of mobile devices that can connect to the internet, such as making children more vulnerable to sexual exploitation, they can be a very useful tool to allow a child to maintain contact with friends and family.
The use of mobile devices and the internet are a normal part of everyday life for children and young people, including those in care.
A balanced view of use of devices and the internet by children and young people in care is to appreciate both opportunities and risks associated with use.
There are a number of factors known to increase the vulnerability of children and young people online. However, in considering vulnerability online, this should be done holistically, taking account of a child or young person’s life in general at a given time, and with awareness of both protective and risk factors.
There is a need for practitioners to move towards a more expansive and child-centred approach with a focus on relationships. This should encompass an appreciation of stepfamily and biological family, and the maintenance of relationships with a wider variety of individuals that reflect the world of the child or young person in care.
As the child is subject to a care order, the local authority ‘shares’ PR with the parents and may override the parents’ wishes if it is ‘necessary’ to safeguard or promote the child’s welfare. The parents in this case did not object to the proposals but the child was refusing to discuss the matter with social workers. However, parents cannot consent to their child’s deprivation of liberty. A child can, if they have capacity, but also that consent may be withdrawn.
For a child under 16 it is submitted that the removal of a mobile device, restriction on its use or monitoring of conversations on it, are likely to be well within the ‘zone of parental control’ and do not require the local authority to seek the court’s permission. The UK Council for Child Internet Safety (UKCCIS) is clear that parental controls on internet usage is accepted and necessary – such as requiring phones to be turned off at school or surrendered during the night.
Some local authorities have set out advice for foster carers around removal/restriction of mobile phones which suggests that certainly for younger children, the local authority as corporate parent does not need to seek the court’s permission to exercise control over a child in care’s mobile phone use. For example, see the guidance from East Riding which considers the removal of a mobile phone as a decision of ‘last resort’
… taken when other measures have failed. This decision should itself be reviewed regularly and the phone returned as soon as possible. Any decision to remove the mobile phone for a long period (more than a few days) should be endorsed by the Safeguarding/LAC/Pathway Team Manager, with confirmation for the reasons in writing to the young person and a copy to the carer.
Not only is removal of a mobile phone considered a serious matter, the older a child gets, the less likely it will be that this is a reasonable exercise of parental responsibility. The House of Lords in Gillickapproved the following dictum of Lord Denning MR
… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.
Once children reach 16, they are held by various statutes as able to make their own decisions across a range of issues. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”.
Therefore, it is important to consider what is the lawful basis for depriving or restricting a 16-year old’s access to a mobile phone or the internet. If this is outside the ‘zone of parental control’ then it is submitted that it is desirable for the local authority to seek authorisation from the court, rather than run a risk of being found to have unlawfully breached either Article 5 or Article 8 of the ECHR.
Article 5 ECHR provides that everyone has a right to liberty and security. Distinguishing between a ‘deprivation’ of liberty and a mere restriction is one of ‘degree or intensity’ and not one of nature or substance.The question whether a person’s liberty is restricted is determined by comparing the extent of that person’s actual freedom with someone of similar age and situation whose freedom is not limited. All children should be subject to restraint upon their freedom to do as they wish, but these restraints necessarily decrease as the children grow.
Many cases involving a deprivation of liberty involve restriction on physical movement, such as refusing to allow a person to leave premises without supervision. Such cases are governed by thethree limbed test set out in Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96, para 71, and 74 emphasising physical confinement.
However, deprivation of liberty is not restricted solely to limits set on physical movement. Lord Kerr in Cheshire West described ‘liberty’ as “the state or condition of being free from external constraint”
The Mental Capacity Act (2005) Deprivation of Liberty Code of Practice states that denying social contacts constitutes restraint and therefore is a significant factor as to whether the care and treatment amounts to a deprivation of liberty. The importance of social contact for a child is reflected in article 37 of the UNCRC “…. every child deprived of liberty… shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”
In the case of HC (A Minor Deprivation of Liberty) [2018] EWHC 2961 (Fam) the court considered a variety of issues beyond mere physical confinement which had the cumulative effect of depriving a child of his liberty. For example, at para 40 the judge commented on the issues of ‘supervision, support and control’.
Linked to the question of freedom of movement is the question of supervision. A typical 13-year-old will certainly be supervised or controlled in certain formal or dangerous settings. For example, at school, much of the time is supervised to a greater (e.g., in the classroom) or lesser (e.g., during break-time) extent, and a risky sport or activity will generally be conducted under close adult supervision. However, a typical 13-year-old will also enjoy significant periods of time without any active supervision whatever. In particular, it is intrinsic to the lives of teenagers that they are able to spend ever-increasing periods of time speaking to and interacting with their friends and peers, and without this being subjected to adult scrutiny. Equally, it is very much a part of a teenager’s life that they are able to spend time alone, without the presence of an adult or any other person, whenever they like (and their routine allows).
The Judge considered further the consequences of restricted access to social media and the internet.
Most 13-year-olds have access to social media and the internet. For many, this represents a very significant element of their burgeoning independence, sense of self and social life. Of course, for most, the use of social media is important because of and to the extent of that young person having both an immediate network of friends and possibly a secondary network of online acquaintances or ‘followers’ using any particular medium or platform. To a greater or lesser degree, most 13-year-olds will be subjected at least to parental attempts to monitor and to restrict their use of social media and the internet. Close and constant monitoring of all use would, in my view, be unusual
Conclusions
This child was 16 years old and therefore it was highly unlikely a court would agree that it was within the ‘zone of parental authority’ to deny her access to her mobile phone for more than a short period of time or to monitor her use of it by way of ‘spyware’. (If a parent is paying for the mobile phone, it is probably lawful to refuse to keep paying for it!) and thus the proposed restrictions may amount to a deprivation of liberty, for which the court’s authorisation must be sought. It not a deprivation of liberty, this could be an unlawful breach of Article 8, but if its neither then the local authority will be reassured that its actions are within the lawful boundaries of its exercise of parental responsibility.
UPDATE 23 November 2022
When this matter came before the court, the Judge did not agree that restrictions on use of mobile phone, or adding ‘spyware’ was a deprivation of liberty (which required the court’s authorisation) but it was a breach of Article 8. However, this breach was lawful as it was necessary and proportionate to protect the health and morals of the child. The Judge did not think the local authority required authorisation from the court as this situation was within their parental responsibility.
I think there is probably room for further argument about all of this, certainly on the deprivation of liberty point but for the time being, local authorities should consider carefully such restrictions, make sure that the reasons for them are articulated and impose restrictions for the shortest time necessary. This will protect against any future assertions of an unlawful breach and possible action under the Human Rights Act 1998.
Further reading
More general discussion of depriving children of their liberty and secure accommodation https://childprotectionresource.online/depriving-children-of-their-liberty/
Children under 16 are very different to children over 16, both in legal terms and cognitive capacity. What happens when arguments are made for ‘children’s rights’ that does not make this explicitly clear?
Dear Ms Hirst
I attended your presentation at the webinar on November 11th ‘An Uncharitable Alliance? Mermaids v Charity Commission and the LGB Alliance’ where you spoke about children’s rights in the context of medical transition and your concerns about how the activities of the LGB Alliance and others might limit those ‘rights’. I note that prior to joining the University of Sheffield you taught Medical Law, Children’s Rights and Public Law at the University of Liverpool as a Graduate Teaching Fellow, so you clearly have knowledge and expertise in this area.
This increases my concern over some of your assertions made at your presentation, which I set out below.
As I think this is a matter of significant public interest, I am posting this on my substack and on the Child Protection Resource website. I would be very happy to publish a guest post from you in reply to all or any of this.
I set out some of my specific concerns below, as I tweeted my thoughts during your presentation. While I would be grateful for any further information you can give about these specific concerns (most notably, the treatment offered, the ages, sex and outcomes for the ‘children’ who presented for ‘gender affirming’ treatment in the 1930s) my over-arching concern is that you apply a ‘rights based’ narrative of child welfare on ‘children’ as a whole, without any distinction between those who do or do not have capacity.
You point out the dangers of treating children as a ‘homogenous group’ – which I agree is often antithetic to the paramountcy principle of the Children Act 1989 which requires an intense focus on the welfare of the individual child who is the subject of legal action. However, you fall into exactly that trap, by failing to make explicit any distinction between children over and under 16 years of age. This is a particularly important distinction because a 16th birthday imports a statutory presumption of consent in many areas. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”
Referring simply to ‘children’ as you did throughout your presentation therefore in my view presents a significant risk to those younger children who in my view are highly unlikely to be able to offer consent to even social transition, let alone medical or surgical transition. They must not become ‘lumped in’ with children of 16. Applying a ‘rights based’ analysis to the welfare of children under 16, is in my view not merely inapt but can be actively harmful to the welfare of these children, when the adult making decisions on their behalf is working on prior ideological assumptions.
The law clearly recognises and applies the importance of the child’s maturation in any decision making process. The House of Lords in Gillick approved the following dictum of Lord Denning MR
… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.
If a person cannot understand the nature or consequences of a particular ‘right’ then the decision to enforce that person’s access to it is inevitably made by another. Despite the commendable efforts made by the Mental Capacity Act 2005 to underscore the importance of the ‘best interests’ analysis for those lacking capacity, it remains an inevitable truth that those who lack capacity will have decisions made about them and for them. It is essential that the adults who do this, approach the ‘best interests’ test with an open mind and free from prior assumption.
For children under 16 what you are in fact advocating for is that an adult’s agenda must prevail where those children – I argue the overwhelming majority – are not Gillick competent. It was clear what this agenda is from your presentation and those of your colleagues that I heard. ‘Transition’ is presented as a ‘right’ of a child, attempts to argue for caution in the light of the lack of any compelling evidence for its efficacy, are dismissed as ‘transphobia’ or attempting to ‘erase’ trans people.
I was not aware of any attempt in your presentation to engage with the Cass Review or how this has translated into the NHS England draft specifications regarding treatment for gender dysphoria. You made a brief mention of the Review and then spoke about how transition was not merely a medical issue but a social and emotional one also. I am sure you are right about that. But it does not mean that clinicians ought to be encouraged to provide treatment for a child which is irreversible, significant and has no evidence base. To do this is not merely wholly at odds with the welfare of the child, but requires clinicians to abandon the ethical foundations of their practice.
This blurring or simply ignoring the crucial differences between children’s capacity to consent as they age and mature is sadly a common feature of discussion in this area from those who advocate medical transition as a moral and social good. I note for example the claim from Mermaids that if a child says they are trans, at ANY age, they are trans. The recognition that children ‘age into’ capacity is not some capricious, arbitrary or ‘transphobic’ whim – it is supported by decades of research into child development and noting how children’s ability to understand, retain and weigh up information is compromised by the development of their brain. The solution to this cannot be – as you suggest – to simply offer them ‘more information’ and was explicitly rejected by the Divisional Court in Bell v Tavistock.
This is a matter of particular concern for me as I note a ‘industry’ growing up of those who have not merely staked their professional reputations on the ‘trans child’ but also their income streams.
I would welcome any comment you feel able to give about any of the points I raise.
Comments via live tweeting of the presentation
Says there is evidence of children seeking gender affirming care from the 1930s ??? <I would like to see this>. Thinks true numbers of children seeking care now could be much higher as difficulties accessing care.
Recognises concerns about GIDS – inadequate rating and Cass Review. No acknowledgment of ‘gender diverse’ GD children’s rights. Under 18 not included in GRA. Gaps in EA and UNHRC.
accuses courts of not engaging with GD children’s rights and AGAIN refers to ‘rhetoric’. Access to medical transition has become a ‘power dynamic’ re access, compares to abortion and contraception (???)
Says Mermaids action has impact on child’s right to identity. Children are not one homogenous group and don’t have a identity separate from being a child. We don’t describe them as ‘agender’ or ‘nonbinary’
This might be linked to adult ‘discomfort’ about children having an ‘identity’ (OR we reject any assertion that a child can have an ‘agender’ identity as it is made up?)
Says the medical treatment of children has ‘moral and social’ benefits. (and isn’t this the problem? Clinical decisions and evidence overshadowed by adult preoccupations about what is morally good)
Says implications for child’s rights to information. They have rights to ‘all kinds’ of information (that’s certainly an interesting way of putting it).
Says ‘puberty is not reversible’ so treatment needed to prevent adults from surgical intervention. Children will pay hormones from unregulated websites (focus then should be on criminalising those providers, not making them an excuse to prescribe cross sex hormones).
‘we don’t have long term data because its so difficult to get children to engage’ WELL EXACTLY. they are children. They don’t have the capacity to engage in discussion or thought about this.
Now citing Sally Hines who says there is a lack of information for GD children (I think this can only mean a ‘lack of information promoting gender identity treatment). how can it be made accessible for children. (how indeed)
Child’s right to be heard in all matters affecting them (yes but their wishes and feelings can rarely be determinative, particularly when under 16). We need to engage with them.
LGBA have not involved GD children in their activities. Has due weight been attached to their views? (NO! because they are CHILDREN) Heavy reliance on Micheal Biggs but they should listen to Sally Hines.
Is this part of wider problem in hearing GD children who were also excluded by Gov in conversion therapy debate. An adult agenda put on children. No child witnesses in Bell (this is not true. statements from children. Which horrified the court)
Thinks LGBA will end up erasing minority groups, saying they ‘don’t exist’ and ‘shouldn’t be heard’ (this is NOT what anyone is saying. We are asking to listen to evidence). ‘Rolling back Gilick competence’ – (what is this? 16 years old have statutory competence.)
What impact does this have on GD adults and their experiences?
Over recent years, considerable debate has arisen over the consequences of medical intervention which aims to allow ‘gender dysphoric’ children to ‘transition’ from the body into which they were born, to better reflect their perceived ‘gender identity’. There are serious concerns that this kind of intervention is experimental, with no clear evidence base and carries significant risks for the child.
The debate culminated in 2020 with the challenge of Keira Bell by judicial review, against the lawfulness of the decision by the Tavistock and Portman NHS Foundation Trust (‘the Tavistock’) to agree that she could offer valid consent to medical transition, aged 16. The High Court determined that such cases should be brought to court for a ‘best interests’ decision, emphasising how unlikely it was for children under 16 to be ‘Gillick competent’ and therefore able to offer informed consent to medical transition, by way of puberty blockers and cross sex hormones.
The Tavistock appealed in June 2021 and the judgment was published today, September 17th 2021.
In brief, the Court of Appeal allowed the appeal, considering that the High Court had made findings on controversial and disputed facts, which was not the purpose of a judicial review and which is was not entitled to make. The court noted the real danger in situations involving ethical questions coming before the court on disputed evidence which is not capable of resolution in this arena. The court may attempt “to enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice.” (para 77). The decision about treatment must be made by the clinicians, child and parents. However, the Court of Appeal sounded a clear note of warning at paras 92 and 93 – clinicians must be aware of their ethical duties when determining a child’s informed consent and failure to do so will carry regulatory or even criminal consequences.
So where do we go from here?
The necessary debate about the implications of medical transition for children – particularly as the huge recent surge in referrals of teenage girls strongly suggests some kind of social contagion rather than pressing medical need – has been gravely hampered by a toxic and polarised atmosphere, whereby legitimate concerns about the welfare of children have been actively rejected as ‘bigotry’ or ‘transphobia’. However, in the run up to the first hearing in Bell and immediately afterwards, consideration of the welfare issues for children began to get more serious exposure.
Current NHS advice with regard to puberty blockers and cross sex hormones states that little is known about the long-term side effects of either treatment. Although some claim that puberty blockers are a physically reversible treatment, the psychological effects are not known. There are concerns about potential impact on the brain or bones. For boys, ‘pausing’ puberty may mean they do not develop enough penile or scrotal tissue to undergo later construction of a neo-vagina. Cross sex hormones may cause irreversible changes to the body – such as breast growth or deepening of the voice and temporary or permanent sterility.
The National Institute for Health and Care Excellence (NICE) (see ‘further reading’ below) has concluded that any potential benefits of gender-affirming hormones must be weighed against the largely unknown long-term safety profile of these treatments in children and adolescents with gender dysphoria. Other jurisdictions, such as Sweden, Finland and Australia are also raising concerns about the quality of the available evidence.
The High Court decision
The High Court held that in order for a child to be competent to give informed consent to puberty blockers, the child would have to understand, retain and weigh the following information:
the immediate consequences of the treatment in physical and psychological terms;
the fact that the vast majority of patients taking puberty blocking drugs proceed to taking cross-sex hormones and are, therefore, on a pathway to much greater medical interventions;
the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery;
the fact that cross-sex hormones may well lead to a loss of fertility;
the impact of cross-sex hormones on sexual function;
the impact that taking this step on this treatment pathway may have on future and life-long relationships;
the unknown physical consequences of taking puberty blocking drugs; and
the fact that the evidence base for this treatment is as yet highly uncertain.
The Court considered that it was ‘highly unlikely’ that a child of 13 years or younger could give informed consent (the youngest patient referred to the Tavistock for puberty blockers was aged 10 years) and ‘doubtful’ whether a child aged 14 or 15 could. Clinicians were advised to consider seeking court authorisation before treating any child, but that position was clarified in AB v CD & Ors [2021] EWHC 741 (Fam). If child, their parents and the clinician all agreed that treatment was the best course of action then court authorisation was not required.
The judgment begins by making it clear that the only issue before the court was the question of whether or not the sanction of the court was needed before puberty blockers or cross sex hormones were prescribed – not whether the treatment itself was lawful. The claimants argued that those under 18 were not capable in law of giving valid consent.
The court notes at para 5 an ‘odd feature’ of the claim – it was not actually the Tavistock who prescribed puberty blockers. It referred children on to either UCH or Leeds which then independently made its own clinical assessment and obtaining valid consent from the child. Neither hospital trust was joined as a party to these proceedings but intervened as it was their prescribing of puberty blockers that was ‘under attack’. In reality therefore, the claim was a challenge to the NHS policy of providing treatment for gender dysphoric children – the gender identity service at the Tavistock (GIDS) is provided as part of the NHS Standard Contract and commissioned by the NHS Commissioning Board in accordance with a service specification.
The High Court did not find any illegality in the policy or practice of the Tavistock, UCH or Leeds. Nor did it agree that the information given to children was ‘inadequate’ – but did express concern about the ability of children to understand and weigh it [para 150]. The claim for JR was not however dismissed; the High Court went on to declare precisely what was required by ‘informed consent’.
The Tavistock appealed on 8 grounds (para 12)
Grounds 1 and 2 – the court misapplied the law in Gillick.
Ground 3 – the court’s conclusions were inconsistent with the 1969 Family Law Reform Act.
Grounds 4 and 5 challenge the conclusion that prescription of puberty blockers for gender dysphoria is “experimental” and that their effects are “lifelong” and “life-changing”.
Grounds 6 and 7 – challenge the court’s reliance on expert evidence adduced by the claimants and relying on it to resolve clinical differences of opinion.
Ground 8 – that that the approach of the court discriminates against children with gender dysphoria which cannot be justified
From para 15, the Court of Appeal examined the factual background in more detail. From para 24 it sets out the history of the use of puberty blockers.
How did the High Court deal with the law?
The Court of Appeal examined this from para 39. The High Court had concluded that apart from ‘life saving’ treatment, there could be no more profound intervention in a child’s life and therefore it was appropriate for the court to sanction this type of treatment. But the Court of Appeal responded to remind itself that it should be wary of “becoming too involved in highly complex moral and ethical issues on a generalised, rather than case specific basis.” Neither the service specifications nor the standard operating procedures of the Tavistock were unlawful. The House of Lords in Gillick had been very clear that it was for the clinician to decide if a child under 16 could give informed consent to medical treatment. It was unwise for the courts to attempt to put judicial limits on this – the rights of the patients were better protected by the professional standards of the treating clinicians.
How did the High Court deal with the evidence?
The Court of Appeal were unhappy with how the High Court dealt with disputed evidence.
Even from within the evidence filed on behalf of Tavistock, there is an apparent disconnect between the international experience that 1.6% of children who started puberty blockers did not go on to cross-sex hormones and the figures which arose from the random sample, namely that of 49 referred to the Trusts only 27 were approved for or accessed cross-sex hormones. This is one example of the difficulty in drawing conclusions from statistics which are not fully explained or explored in an evidential context where they were peripheral to the legal dispute before the Divisional Court and where any apparent differences were not capable of being tested forensically.
The Court of Appeal agreed with the stated approach of the High Court that a judicial review was not the correct arena for making findings of fact (para 31) or attempting to choose between disputed expert evidence but considered that despite these statements of intent, the High Court had made some factual determinations. See from para 33:
It was unusual for a child to be refused puberty blockers because s/he could not consent; instead ‘more information’ was offered.
Once a child started puberty blockers they were on a clear pathway to cross sex hormones
This treatment was rightly described as ‘experimental’
This treatment may support the persistence of gender dysphoria, which would otherwise have resolved
The Court of Appeal were unhappy that the status of the claimant’s evidence had not been resolved by the High Court- it had been adduced without permission and some of it was ‘argumentative and controversial’. A judicial review is simply not the arena to resolved disputed expert evidence and normally the defendant’s evidence would be taken at face value.
There was further discussion of this from para 61. The High Court found the treatment was ‘experimental’ on the basis that there was ‘real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy’ – but the Court of Appeal found it would have been better to avoid those kind of ‘controversial’ findings. The same criticisms were levelled at the finding that the overwhelming majority of children would move from puberty blockers to cross sex hormones. The declaration “turns expressions of judicial opinion into a statement of law itself. In addition, it states facts as law which are both controversial and capable of change” (para 80).
As the Court of Appeal made clear at para 64
The point, however, is that these judicial review proceedings did not provide a forum for the resolution of contested issues of fact, causation and clinical judgement….As will appear from what we say in the next section of this judgment, we have concluded that the declaration implied factual findings that the Divisional Court was not equipped to make.
Was the High Court right to make declarations about the nature of the treatment?
Short answer: No. The Court of Appeal examined this issue from para 66, noting that it was the heart of the appeal: the Tavistock arguing that the court “intruded into the realm of decisions agreed upon by doctors, patients and their parents, where the court had not previously gone.” Nor could the Court of Appeal find any example of declaratory relief being granted in a judicial review where the challenge with regard to the law had failed.
At para 70 the Court of Appeal criticised the High Court’s declarations as attempting an exhaustive list of factual circumstances that must be evaluated in seeking consent from a child. But some of the factors identified beg questions to which different clinicians would give different answers. At para 75 the Court of Appeal said:
The evidence of Tavistock and the Trusts was that the treatment was safe, internationally endorsed, reversible and subject to a rigorous assessment process at each stage. It was supported by the service specification, the WPATH guidelines, the Endrocrine Society Clinical Guidelines and explained in the witness statements of Dr Carmichael and Dr Alvi. As we have seen, and as these proceedings have illuminated, there are strongly held contrary views. The declaration would require the clinicians to suspend or at least to temper their clinical judgement and defer to what amounts to the clinical judgement of the court on which key features should inform an assessment of Gillick competence, influenced by the views of other clinicians who take a different view and in circumstances where Mr Hyam accepts that the service specification, which sets out criteria for referring a child for puberty blockers, is not unlawful.
Both Lords Scarman and Fraser had in Gillick made detailed observations about what they would expect to see from doctors assessing informed consent. But to have turned these into declarations of law would have been inappropriate (para 81).
Was the High Court right to have given guidance that these matters should come before the court?
Short answer: no. The Court of Appeal noted at para 86 that requiring the decision about this treatment to be sanctioned by the court “placed patients, parents and clinicians in a very difficult position”. The guidance would in practice have the effect of denying treatment as many wouldn’t have the resources to make an application and there would be inevitable delay through court involvement. In addition, where child, parents and clinicians agree treatment is in the best interests of the child, it would be inconsistent with the conclusion of the Supreme Court in An NHS Trust (discussed at [49]) to bring the matter to court.
Having made these decisions, the Court of Appeal did not need to consider the issues around discrimination in the final ground of appeal.
Where next?
I do not doubt that gender dysphoria is a ‘real thing’ and causes great suffering. However, I do very strongly doubt that it is as common as current referal rates or social media activity suggests. The majority of children expressing ‘gender variance’ will not wish to ‘change sex’ if left to go through puberty unmedicated.
The Court of Appeal was clear at para 92 that the pre-Bell landscape has shifted and sounds a warning note for clinicians and their insurers.
We should not finish this judgment without recognising the difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones. They raise all the deep issues identified in Gillick, and more. Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. Great care is needed to ensure that the necessary consents are properly obtained. As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested.
And at para 93:
But it is for the clinicians to exercise their judgement knowing how important it is that consent is properly obtained according to the particular individual circumstances, as envisaged by Gillick itself, and by reference to developing understanding in this difficult and controversial area. The clinicians are subject to professional regulation and oversight.
Keira Bell’s judicial review has failed but she has performed a great service for not only the welfare of children but also the integrity of the medical and scientific community. The High Court blew the lid off the lack of proper evidence in this field alongside the bizarre cementing of an ‘affirmation path’ which confined children on a route to really serious medical intervention, for the rest of their lives. I hope that the discussion generated by both the High Court and the Court of Appeal will finally bring an end to this dangerous climate of fear, where necessary discussion is shut down as ‘transphobia’.
While I am disappointed that there is little reference by the Court of Appeal to the ancient powers of protection that the court exercises over children I can understand the limitations of the judicial review process and the difficulty of trying to determine disputed and controversial evidence within it. I also hope that the medical profession will undertake their duties to properly assess the informed consent of their child patients, without bowing to pressure from political lobby groups.
The signs are hopeful now of more general willingness and openness to discuss these very important issues. The Cass Review was commissioned in 2020 to carry out an independent review into gender identity services for young people. Its terms of reference focus on the assessment, diagnosis and care of children with gender incongruence and will be wide ranging in scope.
I will await the outcome of the Cass Review with great interest. I hope it is going to show that all patients, but particularly children, need services that are insulated from political ideology. ‘Talking therapies’ must assume a greater importance than simply a model of affirmation. This will no doubt place an even greater strain on the existing specialist facilities for ‘gender diverse’ children but the long term impacts on children are too serious to ignore and we must make investment in our children’s mental health a priority.
First – Do No Harm.
Online comment
The variety and disparity of the online comment immediately generated, underscores for me the need for Parliament to step in and set clear parameters for the age limits for this treatment.
For discussion about the research in this area of the efficacy of the current treatment regimes, see Jesse Singal “How Science-Based Medicine Botched Its Coverage Of The Youth Gender Medicine Debate”
For an examination of the history of the drive to increase children’s access to puberty blockers and cross sex hormones, see Michael Biggs investigation in 2019 ‘The Tavistock’s experiment with puberty blockers’ https://users.ox.ac.uk/~sfos0060/Biggs_ExperimentPubertyBlockers.pdf
NICE Evidence review of Cross Sex Hormones https://www.evidence.nhs.uk/document?id=2334889&returnUrl=search%3ffrom%3d2021-03-10%26q%3dEvidence%2bReview%26to%3d2021-04-01
An organisation of parents, professionals and academics based in the UK who are concerned about the current trend to diagnose children as transgender, including the unprecedented number of teenage girls suddenly self-identifying as ‘trans’ (Rapid Onset Gender Dysphoria or ROGD). See discussion of the teenage brain https://www.transgendertrend.com/teenage-brain/
I have been invited to present a paper at this conference, postponed from July 2020 due to the pandemic. This was a timely postponement as it will enable me to incorporate and discuss what will be a seminal judgment in the Keira Bell case, due to be delivered on December 1st 2020.
The changing legal response to primary school children who are said to wish to transition from one sex to the other. Have legal responses been captured by considerations other than the rule of law and the welfare of children?
Historical context – the birth of the ‘trans child’
Only an understanding of how we got here will enable us to fully understand where we are now. By 2018 it had become firmly established as a UK ‘cultural norm’ that transgender identities were inherent and that any challenge to this was not acceptable, to the extent that those raising questions or unease about how this translated to choices made by even very young children were ‘transphobic’ and ‘hateful’.
This is a pretty dramatic shift from 20 years ago, when the issue of the ‘trans child’ simply was not on the radar of the family justice system. The concept has been successfully normalised in what seems a very short space of time, using both medical and legal routes.
From 1999 – 2019 I encountered not a single case involving a ‘transgender child’ but in 2020 I had two. How has recognition of issues of ‘gender identity’ shifted so dramatically over the past decade?. ‘Queer Theory’ has become more mainstream; this, in essence, re-frames innocence and vulnerability in children as ‘support systems of power’ that enforce heteronormatively and other harmful stereotypes.
As long ago as 1979 the ‘Harry Benjamin International Gender Dysphoria Association’ was established, now known as the World Professional Association for Transgender Health (WPATH). This organisation advocates for ‘trans affirmative’ clinical guidance and training course for health professionals working with transgender people.
By the 1990s in the UK, parents of ‘gender dysphoric’ children began to request hormone suppression at the first signs of puberty. Such ‘puberty blockers ‘ administered at a young age, followed by cross sex hormones, would enable a child to ‘pass’ more effectively as the opposite sex when an adult. By 2009 the Endocrine Society had new clinical practice guidelines for treatment of transgender children which lowered the age for administration of hormones from 16 years to the first onset of puberty. However, the long term consequences of such treatments are not known – and it was not until 2020 that the NHS revised its on line guidance to make that clear.
In the USA in 1995 an International Bill of Gender Rights (IBGR) emerged, setting a legal stage for the development of ‘the transgender child’ including claimed rights for transgender peope to define their own gender identity and to alter their bodies, surgically or medically as they saw fit, coupled with a right not to be subject to ‘involuntary psychiatric diagnosis or treatment’.
In 1997 the European Court stated in X, Y and Z v the UK (1997) 24 EHRR 143 that transexuality “raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States”. But over the years that followed, the complexity of those issues were re-considered in the light of growing demands for the recognition of the rights of trans people.
In 2007 the ‘Yogyakarta Principles’ were drafted by a group of academics and transactivists.. Gender identity was defined as:
… each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.
The Yogyakarta Principles have no legal force, they are not incorporated into any UN convention or declaration but over time they have been regularly cited and relied upon. They were redrafted in 2017 to propose ‘no eligibility criteria, such as … minimum or maximum age … shall be a prerequisite to change one’s name, legal sex or gender’
In 2007 in the UK, the Department of Health declared that being trans is ‘not a mental illness’ and by 2012 the British Psychological Society produced guidelines to affirm all sexualities and genders, pointing out their profession’s long and inglorious history of pathologizing individuals who went against traditional norms of sexual expression.
In 2008, Department of Health guidelines advised ‘sex assigned at birth’ and the child’s ‘inner sense of knowing’ their true gender, may not align, and ‘gender variance’ in children can emerge at a very young aged, identified in the ways children behave in their dress or play. Parents were urged to address their child’s gender variance as soon as possible in order to secure their future as a happy adult.
Around this time, referrals to the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust showed a staggering increase; from just 97 in 2009/10 to 2,016 in 2016/17.
From 2014/15 to 2015/16,referrals increased by over 100% and from 2015/16 to 2016/17 they increased by 41%. Ages at referral seen by the service ranged from a very few at 3 to 17 years old [www.ncbi.nlm.nih.gov] The majority of the children were registerd female at birth.
What had apparently been born out of a desire to confront and tear down harmful stereotypes around regressive gender stereotyping, had instead become affirmation of the same, to the extent that if a boy wished to play with ‘girl’s toys’ or wear ‘girl’s clothes’ he could not actually be a boy but was instead a girl born ‘in the wrong body’.
Since 2015, after the fight for gay marriage was won in the UK, the lobby group Stonewall added a ‘T’ to the LGB, a move that saw its funding increase from £4.33m in 2013, to £7.24m in 2017. The charity Mermaids, saw a similar surge in its funding.
The Human Rights Council established the office of the Independent Expert on Sexual Orientation and Gender Identity (SOGI) in June 2016 and the European Court of Human Rights (EHRC) recognized homophobic and transphobic hate crimes in 2018.
Also in 2018 the Royal College of Psychiatrists (RCPsych) in the UK endorsed the propostion that sex is assigned and gender identity inherent, supported removal of transgender status as a psychological disorder and objected to any kind of ‘conversion therapy’ to make people ‘cis gender’ (i.e. one whose ‘gender identity’ is congruent with their birth sex).
Alongside these declared positions by medical bodies and campaigning groups, frequent reference was made to the dangers of denying children access to treatment to address their gender variance. It has frequently been asserted that as many as 40% of transgender adults have attempted suicide; for example see “Pubertal Suppression for Transgender Youth and Risk of Suicidal Ideation,” (Turban JL, et al. Pediatrics. Jan. 23, 2020” .
However, the UK organisation Transgender Trend unpicked some of the research that supports this figure and concluded it was unreliable.
One study was conducted by questionnaire using a non-probability sampling method. This means that the questionnaire was promoted within the LGBT community and people chose whether or not to fill it in. In total 2078 questionnaires were analysed, however only 120 of these were transgender people, and only 27 of these were under the age of 26 years old. It is only the results from the 27 young trans people that was reported in relation to suicide. Of these 27 young trans people 13 of them reported having attempted suicide at some point in the past. This is where the 48% of all trans youth attempt suicide stat comes from.
Gillick competence
The bulk of reported legal cases around transgender issues reflect the choices made by adults. But when considering a child who declares themselves to be ‘trans’, we must examine more carefully the reality of their informed consent to medical treatment which could leave them infertile or with reduced sexual functioning as adults. There is no ‘test’ for ‘gender variance’ – doctors are expected to prescribe treatment on a self reported diagnosis.
“Gillick competence” refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. It derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority[1986] AC 112 where a mother attempted to argue that children under 16 should not be provided any treatment or advice around sexual issues. The court disagreed and said that younger children could access such services, as long as they were able to understand the implications – i.e. were they ‘Gillick competent’?
Although a ‘child’ is defined as a person between the ages of 0-18, Gillick competence is only relevant to children under 16. Once children reach 16, in England and Wales they are held by various statutes as able to make their own decisions across a range of issues.
These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age.”
The Austrialian case of Imogen (No. 6) [2020] Fam CA 761; (10 September 2020) has some useful discussion about the continuing role of the court, even with a Gillick competent children (Imogen being over 16 at the time of the proceedings). The court identified the two stages of treatment for gender dysphoria as ‘stage 1’, being ‘puberty suppression’ via gonadotrophin releasing hormone analogues (GnRHa) in order to halt progression of physical changes such as breast growth or voice deepening. Stage 2 is ‘gender affirming hormone treatment’.
The court makes a distinction between therapeutic and non-therapeutic treatment, stating that both Stage 1 and Stage 2 were deemed ‘therapeutic’. Non therapeutic treatments were held to involve invasive, irreversible and major surgery, where there was a significant risk of making the wrong decision and where the consequences of that decision are particularly grave. Given that so little is known about the long term impact of puberty blockers and cross sex hormones for children, I suggest there is a question mark about the categorisation of both stages as ‘therapeutic’.
But the distinction is important when considering the limits of the court’s paternalistic powers to rule against the wishes of a Gillick competent child. It is of course possible, but very unusual. For example, In X and Others v The Sydney Children’s Hospital Network [2013] NSWCA 320; (2013) 85 NSWLR 294, the court did not allow a competent 17 year old Jehovah Witness to refuse blood products which were potentially lifesaving. However, this was the only case identified where a court has overruled the views of a Gillick competent child to impose treatment. Other cases involving anorexia nervosa and treatment for drug rehabilitation involved children who were not Gillick competent (Director General, Department of Community Services v Y [1999] NSWSC 644; Director General, Department of Community Services v Thomas[2009] NSWSC 217; (2009) 41 Fam LR 220). There was no recorded case where a court had refused a Gillick competent child the opportunity to consent to therapeutic treatment.
Much then seems to turn on how the adults assess the nature of the intervention to which a child seeks to consent. There has been considerable disquiet in England about the apparent ‘affirmation path’ upon which children are placed – in that treatment is not merely seen as ‘therepeutic’ but the only identified option, as opposed to therapeutic intervention.
Marcus Evans, now a psychoanalyst in private practice, formerly served as Consultant Psychotherapist and Associate Clinical Director of Adult and Adolescent Service at the Tavistock and Portman NHS Trust. In 2020 he wrote about why he resigned.
Those who advocate an unquestioning “affirmation”-based approach to trans-identified children often will claim that any delay or hesitation in assisting a child’s desired gender transition may cause irreparable psychological harm, and possibly even lead to suicide. They also typically will cite research purporting to prove that a child who transitions can expect higher levels of psychological health and life satisfaction. None of these claims align substantially with any robust data or studies in this area. Nor do they align with the cases I have encountered over decades as a psychotherapist.
As Heather Brunskell Evans points out, the child’s ‘gender identity distress’ is occurring within this cultural context and the ‘fantasy’ that it is possible to become the opposite sex. This prevents proper or even any discussion of the reality and limitations of surgical and medical interventions – for example, surgery on the female body to simulate a penis cannot create a fully functioning organ. There must be real and serious doubts about whether a child or adolescent can grasp the importance of information about medical or surgical intervention and fully understand the implications. Therefore significant doubts exist about the reality of their consent.
There were futher worrying signs that the intent announced in the Yogyakarta Principles’ – to remove any minimum age based reqirements around gender issues – were being encouraged further into the cultural context. For example, in 2019 the legal adviser to the Mermaids charity, attempted to erase entirely any distinction between very young children and those with ‘Gillick competence’ by commenting
….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.
Two High Court cases. Re J and Re TP
So it is interesting to see how all of this has impacted on the approach of the courts in England and Wales, when considering the welfare of very young children who were declared by the adults around them to be ‘transgender’.
Both cases examined the issue of preschool children transitioning to the opposite sex. That is probably the only factor each case has in common but I think the different approach in each to the very young ‘trans child’ is an indication of the speed with which attitudes have apparently shifted – from not simply recognising the existence of young children who may have gender dysphoria and offering appropriate support, but to embracing the affirmation principle itself.
J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016) involved a mother who asserted that when her son was 4 years old he wanted to become a girl. She asserted that he ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this and the school denied it was happening. She was supported throughout by the charity Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J wished to be a girl. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’
Mr Justice Hayden was highly critical of the local authority for getting swept up in this ‘prevailing and false orthodoxy’, commenting at paragraph 20 of the July judgment:
This local authority has consistently failed to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. I propose to invite the Director of Children’s Services to undertake a thorough review of the social work response to this case. Professional deficiencies to this extent cannot go unchecked, if confidence in this Local Authority’s safeguarding structures is to be maintained.
So in 2016 it was clear to see that the court was doing its job to protect children; undertaking a clear and objective appraisal of the available evidence and making a decision in the face of angry opposition from Mermaids – who declared at the time that this decision would be appealed. It was not.
However, the approach of the court seems to have shifted quite dramatically only 3 years later in the case of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30. This involved foster carers who had two unrelated children in their care who decided they wanted to transition – the youngest aged 4 years old. The local authority were applying to withdraw care proceedings, so it was a very different situation from re J. But even so, it’s interesting to see how the Judge framed this issue of transitioning pre schoolers:
Notwithstanding even the Guardian’s caution in respect of the openness of [the foster carers] to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of [the foster carers] it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.
This poses two immediate questions: how is it ‘overwhelmingly obvious’ that a 4 year old will experience no harm from a decision to transition from male to female at such a young age (and against the wishes of the school). It seems to be an inescapable fact that the evidence base to support any expert opinion that full social transition for a pre-school child is a ‘positive’ thing, simply cannot exist. 20 years ago, so far as I have been able to discern, this phenomenon was unknown. There is apparently no cohort of children who have been tracked from toddlerdom to adulthood to see if full social transition at a young age was something that helped or hindered their emotional, physical and sexual development. If I am wrong and that evidence does in fact exist, it did not appear to be before the court in either of the two cases I discuss here.
The second question is why the court did not give more critical appraisal to the highly unusual fact that here were two unrelated children in the same family, both apparently expressing a wish to change sex at a very young age. To what extent can the court be confident that this was a genuine expression of their wishes and feelings, rather than a product of environmental and social pressure from the adult care givers? There is considerable and I think reasonable fear expressed by gay people that some parents would rather have a trans child than a gay child as this is more ‘socially acceptable’.
I think there is a real problem here. No one is suggesting – yet – that 4 year olds should face surgery or medical intervention. But how confident are we that a child set on a path aged 4 is going to find it easy to leave that path when older? The ultimate destination is presumably some form of significant medical or surgical intervention and life long consequences. It is troubling to note that we appear to know more about the impact of puberty blockers on sheep than we do on children. I note the comments from the Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust:
KIERA BELL CASE TO DISCUSS WHEN JUDGMENT IS OUT
Tide is turning ?
Shortly before the case was heard in court on 7th and 8th October, the NHS announced a review on 22ndSeptember, lead by Dr Hilary Cass OBE, former President of the Royal College of Paediatrics and Child Health, into gender identity services for children and young people. The review will be wide-ranging in scope looking into several aspects of gender identity services, with a focus on how care can be improved for children and young people including key aspects of care such as how and when they are referred to specialist services, and clinical decisions around how doctors and healthcare professionals support and care for patients with gender dysphoria. It will also set out workforce recommendations for specialist healthcare professionals and examine the recent rise in the number of children seeking treatment. Recommendations for children and young people’s gender identity services will be made in 2021.
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.
"That children are not capable of giving informed consent to undergo a type of medical intervention about which the evidence base is poor, the risks and potential side-effects are still largely unknown… is the common-sense and obvious position."https://t.co/9sS1oE2rnu
Imogen (No. 6) [2020] FamCA 761; (10 September 2020)
This is a post by Sarah Phillimore.
This is a case from the Family Court in Australia – so of interest to those of us in England and Wales as our jurisdictions share a common history. It is a case that makes much of Gillick competence which is certainly a familiar domestic concept and I have written about it in more detail here. One key difference however is that Imogen was over 16 years old – therefore if this was a case in England or Wales, she would be considered competent to consent to medical treatment as if she were an adult, by virtue of the Family Law Reform Act 1969.
Imogen was born a boy called Thomas. She was diagnosed with Gender Dysphoria and was taking puberty suppression medication. When she was aged 16 years and 8 months old, she wished to move to ‘stage 2 gender affirming hormone treatment ‘. Her father supported this but her mother did not, disputing both the diagnosis of Gender Dysphoria and that Imogen was Gillick competent, i.e. able to make the decision to take hormones. The mother wanted Imogen to have therapy, rather then medical treatment.
Both the Australian Human Rights Commission and the Australian Attorney General were intervenors in the case, so its importance is clear. There was also an Independent Children’s Lawyer (ICL).
The court had a variety of questions to grapple with. If there is a dispute about medical treatment for an adolescent, was it mandatory to make an application to court to resolve that dispute? If Imogen was Gillick competent – could she make her own decision without her parents’ consent? If the court had to resolve the dispute then what was the legal test?
The court found that where there was such a dispute about the existence of a medical condition or the need for treatment, it was mandatory to make an application to the court – and interestingly there was official guidance that got the law wrong about that. The court decided that the test was what was in Imogen’s best interests – and it was for her to receive the treatment she wanted.
The discussions in this case are very relevant for every common law jurisdiction – there has been a staggering increase in recent years of the number of children wishing to ‘transition’ from one sex to the other and some interesting legal actions on the horizon, criticising the swiftness with which children are put on the path of ‘affirmation’ that leads to medication and surgery.
What is the best way to treat children with Gender Dysphoria?
The court acknowledged that this case was taking place within a wider debate about treatment for children with gender dysphoria, but the court was focusing on what was best for Imogen. Expert evidence was heard which was split roughly into three camps.
Imogen’s treating medical practitioners followed “The Australian Standards of Care and Treatment Guidelines: For trans and gender diverse children and adolescents” (“the Australian Standards”) which adopted a multi-disciplinary approach to treatment using gender affirming hormones.
The mother relied on an expert psychiatrist Dr D’Angelo, who advocated a more conservative approach, preferring psychotherapy rather than medication.
Reference was also made to the “Informed Consent Model” where general practitioners are willing to prescribe gender affirming hormone treatment to 16 and 17 year old adolescents without knowing whether their parents or legal guardians consent.
It was clear that Dr C – Imogen’s treating psychiatrist – and Dr D’Angelo adopted “fundamentally different diagnostic frameworks, methods, and conceptualisation of the experience of Gender Dysphoria”.
The court – annoyingly – describe ‘Gender Dysphoria’ at para 22 as
Gender Dysphoria is a term that describes the distress experienced by a person due to incongruence between their gender identity and their gender assigned at birth.
This conflation between sex and gender is very typical and has not assisted clarity in the general debate about the proper approach to a child who rejects the sex with which they were born.
The Australian Standards provide (at page 11) that the optimal model of care for trans and gender diverse adolescents who present to services involves a coordinated, multidiscipline team approach. There are two stages to treatment – Stage 1 is ‘puberty suppression’ via gonadotrophin releasing hormone analogues (GnRHa) in order to halt progression of physical changes such as breast growth or voice deepening. Stage 2 is ‘gender affirming hormone treatment’. Some of the effects of this medication are irreversible and likely to lead to the child becoming infertile.
The court noted at paragraph 27 that the Australian Standards gave incorrect guidance as to the law about when an adolescent could consent to stage 2 treatment – an interesting parallel to the situation in England and Wales where a number of official guidances around treatment of trans children are being challenged as unlawful.
At page 7, the Australian Standards state, “current law allows adolescent’s clinicians to determine their capacity to provide informed consent for treatment. Court authorisation prior to commencement of hormone treatment is no longer required”… “…[a]lthough obtaining consent from parents/guardians for commencement of hormone treatment is ideal, parental consent is not required when the adolescent is considered to be competent to provide informed consent”.
Further investigation of Gillick competence.
Australian courts have adopted the approach explained by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112, that the parental power to consent on behalf of a child diminishes as the child’s capacities and maturities grow: a child is capable of giving informed consent, and a parent is no longer capable of consenting on the child’s behalf, when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.
However, at paragraph 29, the court noted that regardless of the child’s Gillick competence, its permission was required for non-therapeutic procedures, in particular those that required in combination:
invasive, irreversible and major surgery;
a significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about the best interests of a child who cannot consent; and
Where the consequences of a wrong decision are particularly grave.
The case of Re Kelvin, found that both stages of treatment were therapeutic and therefore, if the child, the parents and the medical practitioners agreed the child was Gillick competent, there was no need to involve the courts – the child could decide what treatment they were willing to accept.
But the court was clear, at paragraph 35 that the matter MUST come before a court if a parent or doctor could not agree
If the child was Gillick competent
The diagnosis of Gender Dysphoria
or the proposed treatment for Gender Dysphoria
If the only issue in dispute was Gillick competence, the court would either declare the child competent or not – if competent, the child could consent to whatever treatment they liked.
BUT if there was a dispute about diagnosis or treatment, it was then up to the court to determine the diagnosis and decide what treatment was appropriate on the basis of what was in the adolescent’s best interests. Therefore, if the parents dispute the need for treatment, a doctor should NOT agree to provide it to even a Gillick competent adolescent without the authorisation of the court.
This is an interesting re-assertion of the parens patriae duty of the court – the protective and paternalistic jurisdiction it has over children to keep them safe from harm and certainly goes against the stated trend of current UK guidance that ‘parental responsibility’ is of little or even no importance against a child’s stated wish to ‘change sex’ – apparently even when the child is far too young for Gillick competence to be likely.
Why is it important to come to court to resolve these disputes? The Attorney General recognised two good reasons
Without the court’s authorisation, if a doctor gets it wrong about a child being Gillick competent, they risk criminal or civil liability for providing treatment, as the child cannot consent.
or a doctor may override the parental responsibility of the parent who does not consent, which puts the doctor in an invidious position.
Why is the finding of Gillick competence of an adolescent not determinative, if parents do not agree about treatment?
This is the key question, not only for this court but for all others who operate according to the principle of Gillick competence. If we are saying that an adolescent is competent to make their own decisions, why isn’t that an end to the matter? This is because the court retains the ‘parens patriae’ jurisdiction over a child – to act as if the child’s parent.
There was no disagreement, that the court had the power to make an order against the wishes of a Gillick competent child, but it was unusual. For example, In X and Others v The Sydney Children’s Hospital Network [2013] NSWCA 320; (2013) 85 NSWLR 294, the court did not allow a competent 17 year old Jehovah Witness to refuse blood products which were potentially lifesaving. However, this was the only case identified where a court has overruled the views of a Gillick competent child to impose treatment. Other cases involving anorexia nervosa and treatment for drug rehabilitation involved children who were not Gillick competent (Director General, Department of Community Services v Y [1999] NSWSC 644; Director General, Department of Community Services v Thomas[2009] NSWSC 217; (2009) 41 Fam LR 220).
No case was identified where a court had refused to authorise therapeutic treatment where a Gillick competent child had consented.
At para 59 the court was clear it should determine the dispute about the nature of the treatment to be given and in doing so the court should have regard to the best interests of the child as the paramount consideration and give significant weight to Imogen’s views in accordance with her maturity and level of understanding (Re Jamie, per Bryant CJ at [140](f)).
There is an interesting suggestion at para 57 about
the proliferation of academic and other writings since Re Kelvin and the emergence of alternate thinking about treatment and questions arising from the state of knowledge in respect of the long-term implications of current medical treatment for Gender Dysphoria.
Which suggests the court was certainly open to considering whether Stage 2 treatment was really therapeutic after all.
The Informed Consent Model.
The court went on to consider the legality of this.
Dr C gave evidence that “the Informed Consent Model” of care in Gender Dysphoria is being adopted by an increasing number of medical practitioners. This model sees general practitioners proceeding with the prescription of gender affirming hormone therapy to adolescents over 16 years of age who express the desire to do so and who are assessed by the general practitioner as being able to give informed consent to the treatment, without the general practitioner making any inquiry as to whether or not the parents or legal guardians of the adolescents give their consent. Dr C opines that there is confusion in respect of the legality of the Informed Consent Model.
The court was very clear. This was not lawful. See para 63
This judgment confirms the existing law is that any treating medical practitioner seeing an adolescent under the age of 18 is not at liberty to initiate stage 1, 2 or 3 treatment without first ascertaining whether or not a child’s parents or legal guardians consent to the proposed treatment. Absent any dispute by the child, the parents and the medical practitioner, it is a matter of the medical professional bodies to regulate what standards should apply to medical treatment. If there is a dispute about consent or treatment, a doctor should not administer stage 1, 2 or 3 treatment without court authorisation.
Conclusion
This re-affirmation of the importance of parental responsibility and court oversight is very important. Both have run the risk of being over looked or even over ridden by some who push an ‘affirmation model’ very insistently, to the extent that any challenge or even mild objection is characterised as ‘hate’ and ‘bigotry’. It will be interesting to see how in our jurisdiction, the Family Law Reform Act may shine a different light on the statutory competence of children aged over 16.
I concede there is a distinction between a child who seeks life changing treatment and a child who refuses life saving treatment, but we must surely all be able to agree that for anyone, serious surgery or medication must only be accessed via valid consent.
In the judgment, some very interesting discussion then follows about the emerging literature in the field of Gender Dysphoria and how to treat it – although I wonder if the reliance on ‘extremely high rates of suicide’ discussed below is a reference to now thoroughly debunked claims. But there can be no doubt at all that the way forward is by data and by discussion. It is not ‘transphobic’ or ‘hateful’ to care about the health of our children, both mental and physical.
In August 2019 the Federal Minister for Health wrote to The Royal Australian College of Physicians (RACP) seeking advice on the treatment of Gender Dysphoria in children and adolescents in Australia. The RACP responded on 5 March 2020.
In that response, the RACP noted that trans and gender diverse children and adolescents are a very vulnerable population, experiencing stigma and extremely high rates of depression, self-harm, attempted suicide and completed suicide. Importantly, the RACP described treatment for Gender Dysphoria as an emerging area of healthcare where existing evidence on health and wellbeing outcomes of clinical care is limited due to the relatively small number of studies, the small size of study populations, the absence of long-term follow up and the ethical challenges of robust evaluation when control (no treatment) is not acceptable. The College relevantly observes that similar limitations on the existing evidence of healthcare apply to other conditions which affect small segments of the population, such as rare cancers.
The College expressed the view that addressing gaps in the evidence base is important, although notes that further scientific evidence may take a considerable period of time to produce.In the meantime, the College supported the principles underlying the Australian Guidelines, and specifically the emphasis on the multidisciplinary approach to providing person-centred care which priorities the best interests, preferences and goals of the child or adolescent. The College recommends that treatment should be holistic, developmentally informed, child centred and individualised. In order to facilitate a higher level of informed consent, the College recommends that patients and families must be provided with information about the limitations of the available evidence regarding Gender Dysphoria and there should be informed discussion of the burdens and benefits of treatment and options in a way each child or adolescent can understand. The College points to differences across Australia in the access, funding and delivery of care and treatment for Gender Dysphoria. It recommends the development of a national framework for service provision and outcomes monitoring and believes that that is the best way to ensure consistency in the outcome of data collection across jurisdictions.
Further Reading
The right to be fully informed – This site collates and summarises the medical literature and legal issues surrounding puberty blockers so that parents and doctors can be more fully informed. The information should not be taken as medical advice.
And what are the dangers for children of ignoring this?
TLDR:
However intelligent or articulate a child is, they do not necessarily have the same ability as adults to make decisions, particularly those with long term consequences. The capacity of any child under 16 to make decisions about medical or surgical treatment has to be carefully analysed.
Any guidance for adults working with children which ignores or downplays the importance of both Gillick competence and parental responsibility is probably unlawful and probably harmful to children and should be challenged, for all the reasons that I set out below.
Safeguarding Children.
Where adults and children interact, ‘safeguarding’ must be a key consideration. Sadly, some adults are dangerous to children and some children may wish to take risks which will hurt them. As a general point, safeguarding of children demands robust risk analysis. Failures in child safeguarding usually involve an inadequate risk assessment which has failed to either understand or share relevant information. Risks approached on the basis of untested assumptions are unlikely to be properly assessed.
The welfare of children is generally held to be the paramount concern for anyone making decisions about or on behalf of a child. However, ‘paramount’ does not mean ‘exclusive’ – the legal rights of others may need to be considered alongside the child’s welfare.
Any guidance which asserts that it promotes safeguarding of children in the context of choices children aspire to make, ought to be clear about two very important issues: a. ‘Gillick competence’ b. Parental responsiblility.
If the guidance isn’t clear, that is a red flag that the author of any such guidance either doesn’t care about or doesn’t understand the need to protect children.
Gillick competence
Gillick competence refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. It is a very important concept in the area of consent to surgical treatment – if a doctor doesn’t have a valid consent from either a parent or the child, or a court order, the doctor could be guilty of a criminal offence if he or she goes on to operate on a child.
Although a ‘child’ is defined as a person between the ages of 0-18, Gillick competence is only relevant to children under 16. Once children reach 16 they are held by various statutes as able to make their own decisions across a range of issues.
These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”
‘Gillick competence’ derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 where a mother attempted to argue that children under 16 should not be provided any treatment or advice around sexual issues. The court disagreed and said that younger children could access such services, as long as they were able to understand the implications – i.e. were they ‘Gillick competent’?
The case also gave rise to the ‘Fraser guidelines’ which refer specifically to consent to contraceptive treatment and advice – some argue that it’s important to keep the two separate (see this post from the Quality Care Commission) but I suggest that there doesn’t seem much merit now in keeping advice and treatment around sexual matters separate from a child’s ability to consent to other forms of treatment.
See also Axon, R (on the application of) v Secretary of State for Health & Anor [2006] EWHC 37 (Admin) where the applicant sought to challenge the lawfulness of guidance which allowed doctors not to inform parents that children under 16 were seeking advice or treatment about sexual matters.
The Judge affirmed and was bound by the (then) House of Lords in Gillick and concluded that doctors did not have to tell parents provided they were satisfied that the child understood ALL aspects of the advice, could not be persuaded to tell his or her parents and would be at risk of harm if the treatment wasn’t provided (see para 154) .
What information should be given a child by a health professional?
The case of Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 deals with what risks about birth should have been shared with an adult patient – but is a useful discussion of the general parameters of what can be meant by ‘informed consent’ – patients do not have the medical knowledge of doctors, may not know what questions to ask. Doctors have a duty to reveal and discuss ‘material’ risks with a patient.
At para 77 the court comments approvingly on 2013 guidance to doctors:
Work in partnership with patients. Listen to, and respond to, their concerns and preferences. Give patients the information they want or need in a way they can understand. Respect patients’ right to reach decisions with you about their treatment and care.”
Doctors need to take even more care with children under 16 as it cannot simply be assumed they have capacity to make decisions; this must be examined in light of their age and understanding.
The two often go hand in hand with neuro typical children. Some teenagers may lack capacity entirely or in most areas following brain injury or learning disability, as set out in the Mental Capacity Act, Decisions then would need to be made by adults for them, regardless of their chronological age.
Most – but not all – 14 year old children would be ‘Gillick competent’ to make decisions across a wide range of issues because their understanding will increase along side their chronological age. Most – but not all – 7 year old children would not be able to give informed consent to anything much beyond what they would like to eat or what clothes they would like to wear.
Determining ‘Gillick competence’ is therefore fact specific and depends on the circumstances of each individual child.
The implications of Gillick competence are provoking debate prior to the court hearing regarding Keira Bell’s challenge to the clinical decision making process at the Tavistock, in placing children on a pathway to medical or surgical intervention for ‘sex reassignment’.
I do not think this legal case in any way challenges the concept of Gillick competence; I think rather it protects it. Consent to medical treatment is only valid if the child has sufficient age and understanding to appreciate what they are signing up for – what are the material risks and the hoped for benefits? It will be interesting to see what the court makes of these arguments in October 2020, so watch this space.
Parental responsibility
Parental responsibility is defined at section 3(1) of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”
The House of Lords in Gillick approved the following dictum of Lord Denning MR
… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.
This is a significant matter of status as between parent and child and, just as important, as between each of the parents. (see W (Children) [2012] EWCA Civ 999).
Interplay between Gillick competence and parental responsibility
These two concepts are thus intertwined. The younger the child and the less capacity he or she has to make decisions, the greater the extent of the exercise of parental responsibility. This is important for two main reasons.
Most parents, most of the time, have their children’s best interests at heart. Parents are likely to be an important part of decisions around keeping children safe. Who else is advocating for the child?
Families are also the ‘breeding ground of diversity’ and entitled to special protection – see Baroness Hale B (Children) [2008] UKHL 35.
Thus the importance of parental responsibility is recognised and protected by domestic and international law.
Many articles in the UNCRC acknowledge that it is the right and responsibility of parents to bring up their children. Thus article 3(2) requires States Parties, in their actions to protect a child’s wellbeing, to take into account the rights and duties of his or her parents or other individuals legally responsible for him or her; article 5 requires States Parties to respect the responsibilities, rights and duties of parents or, where applicable, other family or community members or others legally responsible for the child to provide appropriate direction and guidance to the child in the exercise of his or her rights under the Convention; article 14(2) makes similar provision in relation to the child’s right to freedom of thought, conscience and religion; article 27(2) emphasises that the parents have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child’s development;
And at para 73:
Individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.
I would therefore expect to see any guidance directed at the safety and welfare of children to give due consideration to both these issues. A failure to do so, risks diluting the effectiveness of advice around safeguarding, and being an unlawful infringement of parental responsibility.
The younger the child in question, the more serious both these failings.
Safeguarding concerns around transitioning children need careful assessment. These could involve:
parental pressure to transition due to homophobia or wish for attention
lack of parental support or understanding for a child who wishes to transition
failing to consider risk to other children of ‘gender neutral’ spaces, either within a school or on residential trips
failing to involve parents in discussions about the safety of children
a younger child who wishes to take puberty blockers
It is neither ‘kind’ nor ‘inclusive’ to pretend that risks don’t exist and to fail to have a clear eyed and open minded approach to how to deal with them. On the contrary, it is both dangerous and stupid – and, I assert, unlawful.
Children aged 4 are very different to children aged 14. Children are not kept safe by a refusal to discuss – or even admit – this quite basic fact. Any guidance or advice that does not deal clearly with the interplay between Gillick competence and parental responsibility should be approached with caution.
Please do let me know of any other examples you can find.
And support the Safe Schools Alliance in their legal action against the Trans Inclusion Took Kit.
..and donate to the Crowdfunder to raise funds for the legal challenge by a brave parent, teacher and 13 year old girl who are speaking out on behalf of all children in our schools. https://t.co/pyCy5AeN0j
This is a post by Sarah Phillimore. I am concerned that the decisions by Mr Justice Hayden in Re J [2016] are being overlooked in the ongoing debate about children who want to ‘change genders’, and in particular the role played by the Mermaids organisation. I discuss my unease about what would have happened in Re J if it was decided this year in a talk at the Make More Noise event on July 27th 2019
First disclaimer. I am not a bigot.
It has, and has always been my view from when I was very young, that if consenting adults wished to dress in a particular way, have sex in a particular way or get married to someone they loved who loved them back, that was absolutely their business and no concern of mine, other than to be happy for them that they had the chance to live their best life. As a disabled person I am well aware of those times in my life when I have been denied opportunities, been insulted or attacked for a physical characteristic that I did not ask for and was completely out of my control. I would never knowingly inflict that kind of harm upon another.
But I am also a lawyer. So by training and by temperament I am not interested in what people ‘feel’ about any particular issue. I am interested about what they can prove. What evidence do they bring to the table to support their fears or worries?
Some advice; if you find what I say ‘hateful’ and wish to have me removed from social media or my employment then of course you must take what ever steps you think are appropriate. But please remember I don’t have an employer; I am a self employed sole trader. If you think my words mean I am not fit to be a lawyer, please refer the matter to the Bar Standards Board.
Please also note that I will not agree with you and will use my best efforts to challenge and reject any complaints made.
Second comment. We cannot sacrifice facts for feelings.
In the on-going and harmful ‘debate’ about trans women with intact male bodies in female spaces (such as sports or prisons) we find very clear and horrible illustrations of what happens when people bring feelings to a fact fight; when both sides of the ‘debate’ appear to believe that they are supported by facts and reasons and the other by unreasoning hysteria and bigotry.
While adults may insult others as they wish, provided they don’t step over the line dividing freedom of speech from criminal harassment, I am concerned here about what is being argued on behalf of children. The need for clear and honest debate is particularly important when talking about the ‘rights’ of children to transition and to be supported/encouraged in accessing surgery or medication to do so.
i have no interest in controlling what consenting adults do to other consenting adults and think such attempts to control is a moral wrong, unless and until of course their activities impinge on my ability to live my life. However, as a lawyer who has worked in many years in child protection law, I do have a very keen interest in what adults do to children, often purporting to act in ‘their best interests’ when, to the objective outsider, it seems anything but.
Much of the increasingly anguished ‘debate’ about transitioning is now very clearly focused on children and at what age they could or should be supported to make the ‘decision’ to transition from ‘male’ to ‘female’ or vice versa. This ‘transition’ is often required to be supported by medication or pretty serious surgical intervention. The impact on the child’s body as he/she grows will be serious, often leading to infertility or loss of sexual function.
I have become increasingly concerned about the role played in all of this by the Mermaids organisation.
They describe themselves in this way:
Mermaids is passionate about supporting children, young people, and their families to achieve a happier life in the face of great adversity. We work to raise awareness about gender nonconformity in children and young people amongst professionals and the general public. We campaign for the recognition of gender dysphoria in young people and lobby for improvements in professional services.
The decisions in Re J [2016]
I am worried that the continuing debate and discussion over the role of the Mermaids organisation has overlooked a very important judgment from Mr Justice Hayden in July 2016 – J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016).
Mr Justice Hayden heard the case over a number of days in the summer and, based upon the experts and professionals whose evidence he heard (along with that of the mother herself), the judge concluded that J was a little boy whose mother’s perception of his gender difference was suffocating his ability to develop independently – and was causing him significant emotional harm. He was placed with his father, where he quickly began to explore toys and interests that were stereotypically “boys”. The judgement is very clear that the father had brought “no pressure on J to pursue masculine interests” and that his interests and energy were “entirely self motivated” (pa 47). So, not forced to live “like a boy” (whatever that means) – but choosing (there is more detail in the judgment).
Importantly, Hayden J acknowledged that there are genuinely children who are transgender or gender dysphoric, and who present in this way from an early stage, but – and here is the crux of it – this child was not one of them. This was all about the mother’s position.
At para 63 of the July judgment, the judge commented on the expert opinion of the mother and how she presented:
When stressed and distressed, [M] becomes controlling, forceful and antagonistic. This reflects her underlying anxiety. She is actually very frightened and upset. She tries to sooth herself by taking control of situations but her interpersonal style is counter-productive. She does not negotiate well. She finds it difficult to compromise and situations become inflamed rather than de-escalated. In situations of interpersonal conflict, she protects herself from loss of confidence or face by unambiguously perceiving herself as correct which means that from her perspective, the other party is wrong. To acknowledge her flaws, even to herself, feels crushing and devastates her self-esteem so she avoids this possibility by locating responsibility and blame elsewhere. When she is unable to achieve the outcome that she wants, she resorts to formal processes and/or higher authorities: complaint procedures, The Protection of Human Rights in Public Law, the European Court of Human Rights, Stonewall and so on.”
It is clear that the mother was insistent with all agencies that J ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this and the school denied it was happening. She was supported throughout by Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J – at 4 years old – wished to be a ‘girl’. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’
Mr Justice Hayden was highly critical of the local authority for getting swept up in this prevailing and false orthodoxy, commenting at paragraph 20 of the July judgment
This local authority has consistently failed to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. I propose to invite the Director of Children’s Services to undertake a thorough review of the social work response to this case. Professional deficiencies to this extent cannot go unchecked, if confidence in this Local Authority’s safeguarding structures is to be maintained.
A later judgment in October 2016 dealt with the aftermath of the boy’s removal and how he had settled with his father and to what extent these matters should be in the public domain. That judgment is here: J (A Minor), Re [2016] EWHC 2595 (Fam) (21 October 2016)
What happened after 2016?
Mermaids at the time were highly critical of these judgments and said they would be supporting the mother in a appeal. No application was made to appeal. They showed no humility or understanding in their press release of October 2016, insisting that the courts simply had not understood issues of gender identity. I assert that no one can in good faith make such argument if they had bothered to read the lengthy and careful judgments of Mr Justice Hayden.
Children are – quite rightly in my view – protected as a vulnerable class of people in our legal system. Children below the age of 12 are highly unlikely to be considered to have the requisite maturity and understanding to make significant decisions about their lives that will impact well into adulthood. Even those older children who are ‘Gillick competent‘ may find that their wishes and feelings are not allowed to determine issues of significance; such as the right to refuse surgery.
The accepted wisdom of the majority of child psychologists is that a child under the age of 6 years is probably unable to express any view that does not align with his or her primary care giver. This is a relatively simple matter of stages of cognitive development and pure survival. The older a child gets the more their wishes and feelings carry weight, but they remain unlikely to be ‘determinative’ unless and until they age out of the protected class of ‘child’.
So why are we even entertaining any discussion that a 4 year old is in possession of all the facts and their consequences needed to make a serious decision about whether or not to keep or ‘disdain’ his penis? Particularly when organisations such as Mermaids and their supporters appear to wish to push for wholly regressive and offensive gender stereotyping such as little girls like pink and sparkly things and little boys want to play rough and get dirty. If a little boy wants to play with dolls and wear a dress, why does he have to ‘disdain his penis’ to do that?
What do we know about the implications of medical and surgical intervention for children?
Not only is a young child likely to be unable to grasp the necessary information to make an informed decision about transition, it seems that the adults around him or her do not yet even possess sufficient information to make a safe, informed decision on the child’s behalf. We appear to know more about the impact of puberty blockers on sheep than we do on children. Note comments from the Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust, cited below in Further Reading. Grateful thanks to @bettytastic to alerting me to this.
We do know something of the effect of puberty blockers on the brain development of adolescent sheep however. Professor Neil Evans of the Institute of biodiversity in Glasgow reported impairments to several functions, including a sheep’s capacity to find its way through a maze, which persist after stopping puberty blockers. This raises questions about the possible neurological effects of puberty blockers on children’s psychological, social, sexual and cognitive development. Some of Professor Evans’s references are listed below (Robinson et al 2014, Hough et al 2017 a & b).
The consequences of a pathway of surgical and medical intervention are not merely physical of course. Stephen B Levine wrote in 2018 in the journal of Sex and Marital Therapy ‘Informed consent for transgender patients’ reminds us that risk needs to be identified across three categories – the biological, social and psychological. Four specific risks arise in each category.
Biological risks include loss of reproductive capacity, impaired sexual response, shortened life expectancy, Insistence that biological sex can be changed cannot alter the possibility of sex based illness – such as prostate cancer arising. Social risks include emotional distancing from family members, and ‘a greatly diminished pool of people who are willing to sustain an intimate and loving relationship’. Significant psychological risks involve deflection of necessary personal development challenges, inauthenticity and demoralisation – when changing your body does not bring about the desired changes to the way you ‘feel’.
Of course, the existence of risk does not mean that one should never embark upon a risky endeavour. It may well be that the benefits outweigh the possible disbenefits to a significant degree and the risk is well worth taking. But that conclusion cannot be reached without clear eyed and dispassionate unpicking of the risks AND benefits.
How can the ‘no debate’ platform and unquestioning acceptance of any child’s expressed wish to ‘transition’ ever reflect the serious ethical duty of medical professionals to be sure their child patient has offered informed consent?
To what extent are adult influences driving children?
Julian Vigo independent scholar, filmmaker and activist who specializes in anthropology, technology, and political philosophy, wrote for Forbes in December 2018 about discussions with Mermaids in 2013 and the concern noted then about what might lie behind adult desires for their chid to ‘transition’ – to help the adult ‘fit in’.
I spoke to Linda at Mermaids, a support group in London formed in 1995 by parents of transgendered children. She told me that this group supports parents who have children who do not ‘fit in’ with ‘gender roles.’ I ask what she meant exactly by ‘fitting in’ and Linda explains, ‘If you are a little girl who behaves like a boy, you will want to have your hair short, to play with the boys. Even at play group they will be different…they will be picked on and those are the problems.’ I tell Linda that many little girls will have short hair and play with boys—I was one of those little girls. She says, ‘I have known a lot of girls in my time and they don’t like rough and tumble..they don’t like playing with boys. They like to play with dolls, dressing up, playing in the Wendy House, to grow their hair…’ Linda emphasises that it is important that these children ‘fit in,’ a phrase she often repeats in our discussion. Is this what transitioning for some trans adults is about? Is this the ‘support’ that parents are receiving in order to understand ‘gender roles’?
Professor Michele Moore makes some similar points and her talk is linked to below.
Conclusions
I will never make any apology for raising and discussing these issues. As a disabled child who could not be ‘fixed’ it became clear to me in my teens that I had a choice; to kill myself or to try and live the best life I could in the body I had. I had virtually no support from the adults around me in this process; the 1970s and 1980s, when I grew up, were much less enlightened times than now and I am glad these issues can be more freely raised.
I wish for all the chance to the live their best life and to live it freely, with love and respect from their fellow humans. We should all do what we can to allow this to happen. If we can’t support it, we should step back and keep quiet.
However, we need to tread very carefully when it comes to little children, who are wholly at the mercy of the decisions made on their behalf by the adults caring for them. Any decision which has the consequence of setting their bodies and hence their lives on a particular path is one that must be taken carefully, honestly and in possession of all the facts. It should never be about a way of assuaging the pain or mental distress of any adult.
None of this means it is impossible for a four year old to have clear and decided views about what he or she wants to do with his or her body, or that it would be automatically wrong to act on those views. But it is – by simple matter of that child’s very young age and compromised cognition – highly unlikely that the vast majority of four year olds can make informed decisions about something serious – such as surgery. We need to be very, very careful about the extent to which adult hopes and dreams are pinned on children.
If anyone in the Mermaids organisation cannot read the judgments of Hayden J and feel appropriate remorse for their role in contributing to the significant harm caused to a 4 year old child, they are not fit to receive even 50 pence of public money, let alone £500K.
Edit 26th December 3.40pm
I am really grateful for the mostly courteous expressions of interest in this post. In particular, the comments from the parent of a trans child. I agree with her that this was not a case where anyone (so far as I know) was advocating for immediate surgery on a 4 year old. I remain very concerned about what the logical outcome for the child would have been if no one had intervened to disrupt the ‘disdain the penis’ narrative. But I accept that surgery and/or medication are not usually on the horizon until the child approaches puberty. I also accept – as did Hayden J – that there are children who will need the kind of support and intervention advocated by Mermaids. But to force ‘transition’ on a child who didn’t want it is as every much a horrible tragedy as it is to deny a child help and support they desperately need. The only way – I think – out and through these difficult and emotional questions is by adherence to facts and rational debate about them.
I have further edited this article to include references to some interesting papers and online talks which I have discovered in conversation with others on line. i remain profoundly grateful for the opportunity to take part in these kind of discussions.
Those of us in the mental health profession ought to be in the business of helping people to see themselves as having the potential to be well and whole. We should help them understand themselves as resilient, rather than infirm and frail. We ought to help people imagine larger, richer, more complex stories for themselves, rather than simplistic narratives of illness and victimhood.
Rene Jax, a male to female transsexual, calls for caution and further research over use of medication for children who express gender dysphoria – Calfornia Family Council July 2018
Professor Michele Moore speaks in October 2018, discusses her concerns about the lack of debate about the impact on children of a medical and surgical pathway; that gender dysphoria does not reside in the body. Encouraging self identification in children is a tool of adult self interests. She is expert in Inclusive Education and Disability Studies
“Separately, and recently, she reports gender identity problems. Her history, if taken at face value, is reasonably consistent with this diagnosis but the difficulty is that other aspects of that history are rather directly at odds with the documentary records leading me to have doubts about the veracity of her whole history – which would include a reasonably consistent history of gender identity problems. This aspect might be made clearer if a source other than [Ms Jay] could be interviewed …. If collateral collaboration is elicited I would reach an additional diagnosis of some sort of gender identity disorder. Whether the intensity of gender dysphoria caused by that disorder is great enough to merit or require a change of gender role might be explored in the setting of a gender identity clinic; it might be sufficiently intense in a prison but not so outside one and in civilian life, for example. If collateral corroboration is not convincingly elicited I would have grave doubts and wonder whether [Ms Jay]’s somewhat dependent personality had caused her to unwisely latch onto a change of gender role as a seemingly universal solution to both why her life had gone wrong and how it might be rectified.”
