Tag Archives: transgender

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

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

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

The Facts

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

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

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

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

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

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

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

The decision in re J

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

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

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

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

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

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

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

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

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

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

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

At para 53 the court set out its approach

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

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

The Case of Q

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

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

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

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

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

Commentary

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

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

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

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

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

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

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

CAFCASS Guidance on working with Children and Gender Identity

The CAFCASS Guidance Working with Children and Gender Identity January 2023 is guidance for children who are not in care. It links to guidance for children who are in care – Trans Youth in Care; a Toolkit for Caring Professionals – but this is dated 2017 and refers to Mermaids and the often ridiculed ‘Genderbread Person’. It’s clearly out of date and requires urgent revision.

A document written in 2017 of course cannot comment on the NHS guidelines, the Cass Review, Bell v Tavistock, revised guidance for schools or the recent decisions of various jurisdictions to move away from the ‘affirmative path’ of transgender care for children advocated by WPATH.

But a document with its final draft in January 2023 has no excuse to skate over or simply ignore all that we have learned in the last five years. This is very poor guidance. In essence, it adopts contested political narratives as if they were truth and is going to risk not only the welfare of children but also the professional reputations of those who rely on it.

I was sent a copy of this guidance by a very concerned practitioner. I cannot link to it as apparently CAFCASS will not be publishing it on their website in case it is ‘taken out of context’. This is not acceptable. Parents, lawyers and judges need to know the content of guidance that CAFCASS is requiring its practitioners to follow, particularly in an area so complex and so contested as this.

I will discuss it here, and raise my concerns with the President of the Family Division.

EDIT – thanks to Gender Parity UK for publishing a link to the guidance

Assumption of contested narrative as truth

The introduction makes the following comment

Transgender/gender expansive people (as well as LGB people) have existed since time immemorial. Therefore, any perception that being transgender/ gender expansive is a social construct or a new phenomenon is factually incorrect. Gender expansive children have existed in all times and all cultures of which records remain.

The Guidance relies on the following resources to make this claim – Trans Historical: Gender Plurality before the Modern – Greta LaFleur, Masha Raskolnikov, Anna Kłosowska and – Histories of the Transgender Child Paperback –2018 by Julian Gill-Peterson  

This is highly controversial and immediately calls into question the asserted aim of the Guidance being to ‘support’ children rather than “specifically not to direct the child down any particular path”. It is not a claim that should responsibly by made in professional guidance, without at least some attempt to comment upon the recent and rapid surge in children seeking referrals to the Tavistock. This points to social contagion, rather than a diagnosis of gender dysphoria. Referrals to the Gender Identity Development Service (GIDS) at the Tavistock have shown a staggering increase in recent years; from just 97 in 2009/10 to 2,519 in 2017/18.

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 3 to 17 years old. As Transgender Trend commented, the majority of the children were registered female at birth. This is an unexplained ‘flip’ from earlier years, where the majority of children registered were male.

The stark figures about the increase in female referrals have been explained by two experienced clinicians in this way:

We posit that there are multiple, interweaving factors bearing down on girls and young women that have collided at this particular time causing a distress seemingly related to gender and their sex. These factors comprise both the external world (i.e. the social, political and cultural sphere) and the internal (i.e. the emotional, psychological and subjective). The external and internal interact and feed each other.

Ignoring current evidence

You will search in vain for any discussion about ‘detransitioners’ (those who regret having undergone medical or surgical transition and revert to a gender identity which is in line with their sex observed and recorded at birth) or the phenomenon of ‘rapid onset gender dysphoria’ which points to the likelihood that social contagion is driving much of the ‘gender expansiveness’ of in particular teenage girls.

Of the many shocking aspects of Hannah Barnes’ forensic dissection of what went wrong at the Tavistock in her book ‘Time to Think’, the most concerning for me were the bleak statistics about the children treated there – 70% of the children had more than 5 associated co-morbidities such as abuse, depression, self-harm, suicide attempts, anxiety, eating disorders, ADHD or bullying. 35% of referrals involved children with Austic Spectrum Disorders – experienced by less than 2% of children in the general population. 25% of referrals involved children who had spent time in state care – compared to 0.67% of the general population. Children referred were 10 times more likely to have a parent registered as a sex offender than the general population.

You will search the guidance in vain for any discussion about this. There is simply a short comment that practitioners need to ‘acknowledge and assess the additional complexity and vulnerability a transgender child may present.’ 

Poor analysis of safeguarding

The Guidance identifies the main issues around ‘safeguarding’ as

  1. Parental responses 
  2. Parental disputes and differing views 
  3. Homelessness
  4. Discrimination  
  5. Lack of health and social care support and progression through the care pathway 
  6. Lack of CAMHS provision  
  7. Suicidality and self – harming behaviors  
  8. Hate crime 
  9. Bullying/ difficulty with peers 
  10. Disruption or cessation of formal education 
  11. Conversion therapy- direct or indirect 
  12. Online safety 

This again underscores that this guidance operates from a presumption that transition for children should be affirmed. It makes no reference to the risks that flow from working with a cohort of children who are likely to have a significant number of co-morbidities or may be victims of homophobia. We already have a clear example of the dangers of such a blinkered approach in the case of Sonia Appleby, the Named Professional for Safeguarding Children and the Safeguarding Children Lead at the Tavistock. She raised a complaint at an employment tribunal, that Tavistock management directed that safeguarding concerns should not be brought to her attention and clinicians were discouraged from reporting safeguarding concerns to her, over allegations around Ms Appleby’s ‘transphobia’. In September 2021 Ms Appleby was awarded £20K as damages for “significant” injury to her feelings. The tribunal concluded that the trust’s handling of the matter “prevented her from proper work on safeguarding”.

In line with the Guidance’s presumption of affirmation, it is noted that

The majority of parents and families will want to do all that they can to support and act in the best interests of their child when they discover their child is transgender or needs to explore their gender identity

Which raises an interesting question about how CAFCASS intends to treat those parents who are less than delighted that their child is being put on a pathway to medical and surgical transition. The Guidance makes the claim that ‘Evidence shows that young people who have parents/wider family who are supportive of their transgender identity are more likely to have good mental health, including improved outcomes’ but provides no citation for this assertion.  

The Guidance notes, ominously

It may be necessary to use public law to safeguard and protect the child and transgender children are no less at risk of abuse than any other child. In fact, their transgender status often makes them at a higher risk where a parent/carer is not a protective factor. 

There is reference to ‘conversion therapy’ as ‘morally wrong’ but with no countervailing discussion of the recognition by the Cass Review that there was a need for ‘talking therapies’ as a first resort, rather than affirmation of a medical pathway. This makes me concerned that parents who do not immediately ‘affirm’ their child as ‘truly transgender’ risk finding themselves viewed by CAFCASS as abusive parents

Signposting to outdated, unreliable and dubious sources

The introduction at page 3 signposts the practitioner to Professor Spack’s Ted Talk. Professor Spack is a Consultant Paediatric Endocrinologist explaining his work helping transgender children and described as ‘one of the world leaders in this field… ran the multi-disciplinary Gender Identity Service at Boston’s Paediatric Hospital in the USA.’ The first thing that jumps out is that this Ted Talk dates from November 2013, nearly ten years ago. The notion promoted by Professor Spack that puberty blockers are wholly reversible and simply give a child to think is not supported by the Cass Review interim report. Various judges have commented on the concern that rather than give children ‘time to think’, puberty blockers almost inevitably sets them on a path to cross sex hormones, with the consequent risks to fertility and adult sexual function.

The majority of children who are permitted to go through a natural puberty, will desist from any desire to ‘change sex’. Anyone who is making recommendations about the welfare of ‘gender expansive’ children needs to know and understand this. They also might benefit from understanding a little more about the Boston Children’s Hospital and the recent unease about it’s practices, not least double mastectomies carried out on girls as young as 12.

As Professor Levine noted in 2020:

A 2017 study from the Boston Children’s Hospital Gender Management Service program – 23 – reported that: “Consistent with the data reported from other sites, this investigation documented that 43.3% of patients presenting for services had significant psychiatric history, with 37.1% having been prescribed psychotropic medications, 20.6% with a history of self-injurious behavior, 9.3% with a prior psychiatric hospitalization, and 9.3% with a history of suicide attempts.

Mermaids and Stonewall are listed as useful resources. It is difficult to see how this guidance can in good faith signpost its practitioners in this way. The concerns about Stonewall are now exhaustively documented and very well known and yet CAFCASS remains a Stonewall ‘Diversity Champion’. Mermaids is currently under investigation by the Charity Commission. The inquiry opened in November 2022 and will seek to determine ‘whether the charity’s governance is appropriate in relation to the activities the charity carries out, which involve vulnerable children and young people, as well as their families.’

It is astonishing that CAFCASS would direct its practitioners to an organisation under investigation in this way. But regardless, It is clear that Mermaids heavily promotes ‘affirmation’ and the medical transition of children at ever younger ages. Its views about capacity and consent was expressed in this way in 2019, attempting to erase any distinction between those children who are Gillick competent and those who are not:

….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.

.

The guidance offers some discussion on the thorny issues of of capacity and consent but any benefit in this discussion is significantly compromised when signposting practitioners to those organisations who do not accept there is any question mark over the transitioning of children – or worse, that any attempt to discuss concerns is unacceptable bigotry

Conclusion

I am not demanding that CAFCASS adopt a particular political view/narrative. I am not denying that there are now and always have been, a small percentage of people who are very unhappy with their bodies and seek relief by being seen as the opposite sex. These people should not face abuse or discrimination. I agree that rigid conformity to sex based stereotypes is often harmful and that children who reject those stereotypes should be protected.

But I also know that we all have only one body and there are clear limits to what can be achieved to change it via medication and surgery. It is simply not possible to ‘change sex’. I hope very much that I am wrong regarding my fears about the welfare of children who undergo irreversible and unevidenced medical treatment. I hope that the research set in motion by the Cass Review will show that these children were not simply part of an unregulated medical experiment in pursuit of an adult agenda. I hope that the coming years do not usher in litigation from those children who were not protected by adults who should have known better. I hope that the lives of a generation of children have not been blighted.

But we are still some time away from any reliable evidence regarding childhood transition. While we wait, we are all entitled to ask that agencies such as CAFCASS, whose reports are highly influential in both private and public law children cases, provides guidance which is based on evidence and which acknowledges where the evidence is shaky – and which accepts that issues of ‘gender incongruence’ or ‘gender expansivity’ in children may involve safeguarding issues, such as promoting homophobia or putting a child on a medical pathway which is potentially irreversible and lacking any compelling evidence base.

This Guidance is not fit for purpose and puts both children and practitioners at risk of harm and reputational damage. I hope it will be withdrawn and significantly revised. Unless and until it is, then I will treat all recommendations by CAFCASS in this area in any case where I am instructed, with significant scepticism.

Further reading

For practitioners who centre the welfare of the child at the heart of their work, rather than allegiance to any adult narrative or ideology, I recommend the guidance co-authored by by Transgender Trend and the Evidence Based Social Work Alliance in 2021 – When can a child consent to medical transition?

An Examination of Gender and Safeguarding in schools – Policy Exchange report 2023

CAFCASS – what went wrong – blog from New Approaches to Contact

An open letter to Hannah Hirst re the ‘right’ of a child to medical transition

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?

Medical transition of children – where now?

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

DETERMINATION ON THE FACTS – 22/04/2022 

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

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

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

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

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

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

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

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

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

I would like to not have boobs;

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

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

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

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

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

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

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

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

Suggested way forward

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

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

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

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

Background 

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

The GMC case against Dr Webberley was essentially:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The most astonishing assertion of the Tribunal is at para 111

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

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

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

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

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

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

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

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

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

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

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

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

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

‘Hi,

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

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

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

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

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

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

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

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

Further reading

And an excellent point in this substack from Dave Hewitt which I missed – despite criticising Dr Webberley for not being sufficiently conscientious in recording the child’s consent, the Tribunal concluded at para 25 it didn’t matter because the parent could consent on their behalf. This in spite of the Tavistock confirming in Bell that they would never dream of treating a child who did not or could not consent.

Regarding consent, the tribunal – having previously decided that children’s self-knowledge is paramount – went on to declare that parents can consent for children who lack comprehension, so all questions as to Webberley having effectively established consent were moot. Not only that, if a child disagrees with the treatment, but is not Gillick competent, the parent can consent anyway:

A child’s consent to transition: the view from Down Under

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.

I have written about the changing attitudes of the High Court to transitioning pre-schoolers here.

Facts of Imogen’s case

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: 

  1. invasive, irreversible and major surgery;
  2. 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
  3. 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.

  

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Limits to Self Identification: The Protection of Children

This is a post by Sarah Phillimore.

I was interested to read the decision of Re S (Parental Alienation: Cult), a judgment handed down on April 29th 2020. It covers so much of what has been interesting and challenging for me throughout my career. The damage that even loving parents can do to their children, and the particular harm caused by a parent who puts their own right to self identification above the child’s welfare.

This is a case about a mother who was a member of a cult and a father who wanted their daughter to live with him because he was so worried about her exposure to the cult. His application was refused and the child’s time was divided between the parents; he appealed.

The first Judge to hear the case agreed that the mother was a member of a cult organisation founded in Australia in 1999 by Serge Benhayon, called ‘Universal Medicine’. The mother in turn cross appealed, denying she was a cult member and sought to reduce the amount of time the child spent with her father, relying on historic and repeated allegations that the father had sexually abused the child and he was coercive and controlling.

The father’s appeal ultimately succeeded.

The judgement offers a helpful analysis of the law relating to the weight to be accorded freedom of belief when that conflicts with a child’s welfare. I think it poses some interesting further questions about what areas courts ought to be investigating when faced with other parental systems of belief that are controversial or deny material reality – such as the growing insistence in some quarters that biological sex is a myth and to attribute it to a child is some kind of hateful bigotry.

The law concerning freedom of belief

The court first needed to examine the law concerning freedom of belief. The first Judge carefully surveyed the law’s treatment of sects, cults and minority groups in cases involving children. He recognised that the court had to approach this with caution: the court should not become unnecessarily involved with criticising minority groups and controversial beliefs. The court should only be concerned with the welfare of the child.

The leading decision around religious upbringing is Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233; [2013] 1 FLR 677. This case involved the schooling of children from an ultra-orthodox Jewish background, but the comments of Munby LJ apply equally to belief systems that are not avowedly religious. The Judge is not there to weigh one religion against another and all are entitled to equal respect so long as they are ‘legally and socially acceptable’. The court must recognise Article 9 of the European Convention:

“1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

From this, we can see the right to religious freedom is not absolute but qualified in two ways. Your religion or philosophy is protected only if worthy of respect in a democratic society and not incompatible with human dignity – see Campbell and Cosans v United Kingdom (No 2) (1982) 4 EHRR 293. Second, how you ‘manifest’ that religion or philosophy – such as in worship or other observance – can be restricted if necessary to protect the rights and freedoms of others.

It is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs; the State must be neutral and impartial – see  Moscow Branch of the Salvation Army v Russia (2007) 44 EHRR 46.

But if a religious practice or belief has negative consequences for a child’s welfare, the court has the power to restrict manifestations of that practice or belief – and in the most extreme cases, remove the child from the care of the parent who will not change their views.

In summary, the court must respect the mother’s beliefs to the extent that the teachings of Universal Medicine are worthy of respect in a democratic society, but the child’s welfare remains the paramount consideration and may override the mother’s rights.

The law concerning parental alienation

The Appeal Court then considered the law around parental alienation. The Court rejected any attempt to enter the debate about labels, agreeing with Sir Andrew McFarlane (see [2018] Fam Law 988) that where behaviour is abusive, protective action must be considered whether or not the behaviour arises from a syndrome or diagnosed condition. The Appeal Court relied upon the CAFCASS definition of alienation.

“When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”

Such manipulation does not need to be deliberate or malicious. It is the process that matters, not the parent’s motive.

The Appeal Court commented:

Signs of alienation may include portraying the other parent in an unduly negative light to the child, suggesting that the other parent does not love the child, providing unnecessary reassurance to the child about time with the other parent, contacting the child excessively when with the other parent, and making unfounded allegations or insinuations, particularly of sexual abuse.

These cases can be very difficult but the courts are under a positive obligation imposed by Article 8 of the ECHR, to strive to find some resolution, particularly as the passage of time often leads to a determination of the matter by default, as a child simply hardens negative views towards the absent parent.

As McFarlane LJ said in Re A (Intractable Contact Dispute: Human Rights Violations) [2013] EWCA Civ 1104; [2014] 1 FLR 1185 at 53: 

The conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. But, courts and judges do have a responsibility to utilise such substantive and procedural resources as are available to them to determine issues relating to children in a manner which affords paramount consideration to the welfare of those children and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”

The courts have to keep the child’s medium to long term welfare in mind, as the temptation may well be to take the short term path of least resistance as less stressful for everyone. However the court must not wait for serious harm to be done before taking appropriate action.

The Facts

The parents separated in 2012 when the child was about a year old, so at the time of the appeal hearing, she was aged 9 years.

The father moved out but continued to spend time with his daughter on alternate weekends. About the same time as the separation the mother became a ‘student’ of ‘Universal Medicine’.

The Judge did not need to decide if this was a ‘religion’, but found it was a ‘belief system’ to which the mother was strongly aligned. The founder of this system, Serge Benhayon, was described by an expert on cults, the Rev Dr David Millikan, in this way:

Benhayon hovers over his followers with a myriad of pronouncements about how they should behave. His teachings, cloaked in the robes of sanctity, prescribe what food they can eat. He has strict rules on clothes, work, physical exercise, how to speak and move, how sex works (he encourages orgasms like a hermaphrodite), how to treat children, how to dispose of their money, what books to read, who to talk to, what media to read or watch, how to treat family and friends who complain about their discipleship. Piece by piece their lives are recast in the mode of Benhayon himself.”

As is common with cults, its members will lose the capacity to question what they are taught and will consider those outside the ‘closed system’ as unable to understand. Relationships with family or friends who aren’t in the cult becomes very difficult, or are severed entirely.

The father was particularly concerned by the attitude of the cult towards food, collecting information which showed what categories of food were allowed or disapproved of by Universal Medicine. The categories include “Fiery foods”, “Pranic foods” (said to hinder the flow of the light of the soul and the body, including all wheat and grain and dairy milk … ) and “Evil foods”.

Other concerning cult practices included “Esoteric ovary massage” which is said to offer women “a true healing to deconstruct the emotional inputs and blockages that may lay suppressed in the ovaries, consequence to the many experiences a woman has endured throughout her life that have had the effect to the relationship she holds with herself”. There is apparently no evidence in support of any of the cult’s practices which were ‘developed’ by the cult founder Benhayon, described as a ‘former bankrupt tennis coach from New South Wales’.

When his daughter was three, the father became increasingly concerned about her restricted diet and the influence of this cult upon the mother’s parenting. The local authority assessed and found a good relationship between mother and child. The social worker thought the mother’s ideas were somewhat ‘fixed’ but did not pose a safeguarding concern.

The father applied for a child arrangements order so that his daughter would share time equally between her parents and a specific issue order so that she would not have any further dealings with Universal Medicine.

The mother objected, and asserted that that Universal Medicine was not a cult but rather “an award-winning complementary healthcare organisation bringing many benefits to its adherents, herself included.”

“Serge provides the absolute reflection of integrity and truth,and of unwavering love for all in service untiringly andunceasingly… No greater role model have I ever met.”

CAFCASS reported in April 2017 and recommended that the child should not attend any Universal Medicine events until she was old enough to make informed choices, reporting concern that the child would become segregated and that would impact on her formation of relationships.

The parents were able to agree shared care and the mother was prohibited from taking the child to UM events before she was 16, imposing any teachings or doctrines or initiating discussions about UM.

By July 2018 the father was concerned that the mother was not sticking to this agreement and in fact the influence of UM over their child had increased.

In October 2018 an Australian court [Benhayon v Rockett (No 8) 2019 NSWSC 169] found that Universal Medicine was a socially harmful cult and Benhayon to be a sexually predatory charlatan who had assaulted female students and had an indecent interest in children as young as ten.

The father therefore issued his application for his daughter to come and live with him and have no further involvement with the cult. The father set out a schedule of allegations against the mother. In May 2019 the court refused the father’s application for a psychological assessment of the child but ordered a report from an Independent Social Worker. The matter was listed for a three day final hearing in November 2019.

The father said that he did not trust the mother to distance herself from Universal Medicine and although their daughter would be devastated to spend less time with her mother, to remove her from the mother’s care would be the lesser of two evils.

The mother rejected the father’s criticisms of Universal Medicine and alleged he was coercive and controlling. The Independent Social Worker found that the mother’s involvement was harmful to the child, in terms of restricted diet, behaviour and beliefs. She recommended that the child live with her father and have supervised contact with her mother.

The mother then changed her legal team and instructed her new lawyer to strike out the father’s application altogether on the grounds that any transfer of residence would breach the mother’s Article 8, 9 and 10 rights. This application was dismissed and the matter continued to trial. The mother asserted that the Australian judgment was nothing to do with her and it was discriminatory to require the child to give up her ‘thoughts and conscience’.

The Judge’s Decision and the Appeal

The Judge rejected any allegation that the father was coercive or controlling. He was motivated by concern for his child’s welfare. He thought the mother seemed genuine in her agreement to dissociate herself from Universal Medicine if it meant her daughter would stay with her.

Both parents loved their daughter and could meet her practical needs. The Judge concluded that the order which would best meet the child’s welfare was a return to the arrangements in 2017, after weighing up the harm presented by Universal Medicine against the distress that the child would feel if spending less time with her mother. The court was persuaded that the mother was ‘sincere and genuine’ in her assertions that she would ‘modify’ her thinking about Universal Medicine.

The father appealed, on the basis that the Judge had given inadequate reasons for not following the recommendations of the ISW and that by January 2020 it was clear that the mother was backtracking from her undertakings and that the child arrangements order had already been wholly disrupted.

The mother responded to seek a reduction of the father’s time with the child, on the basis that historic allegations of sexual abuse had not been properly investigated and that the mother could not be asked to give up her her beliefs.

The Court of Appeal rejected the mother’s cross appeal and found that the Judge had been entirely correct in his evaluation of the facts and that Universal Medicine was a harmful cult. What was at issue here was his evaluation of how this applied to the child’s welfare and what orders should be made. It was clear that the mother was not going to stick to her undertakings. She had raised issues of sexual impropriety against the father since 2015. This supported the father’s case about parental alienation but had not been considered by the Judge.

The court therefore decided to give the mother one last chance to demonstrate that she would reject any adherence to the cult, failing which the child would move to live with her father. The final hearing was listed for July 2020.

EDIT On 15th July 2020 the court decided that the child should move immediately to her father’s care, as the mother was not able to show that she had made the necessary break with the cult. See Re S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam)

Conclusion

This case is a fascinating example of parental alienation but also a very useful examination and summary of the authorities relating to freedom of religious or philosophical belief and how rights can exist in serious tension with one another.

The mother has a right to religious freedom. But equally her daughter has a right to a healthy diet, to grow up to make her own choices and to have a relationship with her father. The court found that the child’s right to be free of a ‘harmful and sinister’ cult outweighed the mother’s right to continued adherence to it. However the mother would be given one last and short chance to show she could break away from the cult and promote her child’s welfare.

I wonder what parallels can be drawn between this case and the continuing debate about ‘transgender children’. Is there really much distinction between a harmful cult that puts food into categories (including ‘evil’) and promotes ‘esoteric ovary massage’ and a belief system that holds that biological sex does not exist but rather we can chose from infinite ‘genders’?

Both are products of adult minds. Neither have any foundations in fact. Both, if imposed on children from a young age have the potential to do harm. The welfare of the child remains the paramount consideration and that will require clear, honest and thorough weighing of a variety of factors in every such case.

Further reading

In whose best interests? Transgender Children: Choices and Consequences

No one, no issue is off the table when it comes to safeguarding

You had better make some noise – abusers will exploit bad laws and poor safeguarding

The Crown Prosecution Service in the Classroom

This is a post by Sarah Phillimore

On Friday January 24th 2020 I was alerted to the recently launched ‘Commentary on the LGBT Bullying and Hate Crime Schools Project Classroom activities and guidance for teachers’ [EDIT this guidance is no longer available at this link. It was removed from circulation and withdrawn after the CPS received a letter before action threatening judicial review]

This is for key stages 3 and 4 – i.e. children aged 11-16.

The CPS initially said this pack could ONLY be seen by teachers.

I found that extremely alarming. I have a child of my own in the school system so my alarm extends far beyond my professional criticism of guidance that is in places muddled or plain wrong.

I set out at the end of this post my detailed comments on the text in the pack. I could not access the videos or PowerPoints and did not seek them out as the CPS were apparently saying this was the reason the pack may not be shared with parents, because it involves ‘sensitive’ case studies of – I assume – ‘real life’ children.

I will put aside for now the wisdom of attempting confidentiality around such private data in a pack that is presumably sent to every secondary school in the country. This is the least of my worries right now.

I emailed the CPS to ask them if I may publish the guidance and my commentary. They emailed me on January 27th to ask if they could see my commentary. I emailed it the same morning. EDIT They then replied on the 29th with a link to the text of the guidance which was now public. But not the videos or powerpoints. I don’t flatter myself that my decision to blog or not to blog made any difference to their decision – but I suspect the telephone calls from numerous journalists made them realise they could not continue to keep the text hidden from parents.

If they had not done this, I would have published the guidance in any event. It is a matter of public interest. I have not shared the videos or PowerPoints and therefore I hope that risk to vulnerable children is reduced. But putting vulnerable children in official school guidance and using that as a reason to keep parents from seeing it, would be a bizarre and unacceptable state of affairs and I very much hope that is not what has happened here.

Perhaps the CPS would like to explain what prompted their change of heart.

TL:DR Summary of concerns


As the table below indicates, I am very concerned about this guidance. But if I was asked to pick my Top Three, they would be these.

  • At page 25 there is an alarming list of behaviour, some of which is trivial or undefined which is offered as examples of ‘hate’ – this is particularly concerning as the Guidance repeats throughout that there is no statutory definition of homophobia or transphobia, and a ‘hate’ crime or incident relies entirely on the subjective perception of the alleged victim or bystander. This list includes ‘ostracising from a friendship group’ and separately (and undefined) ‘rejection’.
  • At page 33 there is an apparent attempt to create a ‘hierarchy of rights’ and to place LGBT+ at the top. This would seem to be unlawful as it discriminates against other characteristics protected by the Equality Act, such as race and disability. Surely schools should be developing robust policies against bullying which apply to all children, not attempting to set up one minority group as more deserving of protection.
  • I note that section 4 has as ‘activity 1’ ‘identifying potential criminal charges’. I am troubled by the implications of this, in the context of guidance that purports to help teachers and students ‘identify and report’ hate crime. Nor am I clear what a teacher is supposed to do if they or a student identify another classmate as having displayed ‘hateful’ behaviour. Where will it be recorded and to whom will it be disclosed?

Given that the guidance is very clear about how seriously such hate crimes and incidents should be taken, I am worried that a clear incentive is being set up here to encourage students to report one another’s behaviour or for a teacher to feel under pressure to refer it on to the police.

It is giving a very clear message to girls that anyone can be any ‘gender’ they like (including ‘pan’ ‘omni’ and ‘a’ sexual, none of which are defined anywhere in the guidance) and that it is ‘hate’ to object to anyone in your space, or to ‘reject’ them – again undefined but clearly means something other than social ostracism as that is given its own separate mention. So what DOES ‘rejection’ mean in this context? It has to mean sexual rejection. There is no other way children can ‘reject’ each other. They aren’t offering employment prospects.

I am therefore very troubled that this guidance was initially being kept from parents in its entirety – although they may now, after media pressure, see the text of it.

As is sadly common with all documents I have read which purport to promote the rights of the ‘trans child’, I can see no acknowledgment of or discussion about parental responsibility or Gillick competence in this guidance. As it is aimed at 11 year olds I consider that is a potentially serious omission.

I hope that a legal challenge will be made to this guidance. The influence of Stonewall etc is clear to see.

The time to speak up is now.

I will leave you with this quote from mumsnet user michelleoftheresistance

It’s already known the massive comorbidities going on with children presenting with gender identity issues, pretty much the same comorbidities coming up over and over again for other vulnerable kids. Treating one group as more privileged and better served than others is going to create resentment, particularly at a time when mental health care and SEND provision is dire and many families are angry and struggling. It will do nothing to meet the Code of Practice or Equality Act’s requirement to promote good relationships between groups: this will actively damage it. It does nothing to address the root problems underlying why children are becoming confused and distressed about their identities and bodies. It’s also inevitably going to incentivise transitioning. And that’s on top of the always there, bald insensitivity and rejection of female kids with history of abuse and sexual trauma, female kids whose religions don’t allow for going along with personal choice of sex over reality, female kids whose disabilities won’t bend in that direction, etc etc. 

Further reading

Thread on mumsnet discussing the CPS Pack

The Safe Schools Alliance have written a template letter for parents to send to the CPS

Detailed comments on the CPS pack

My commentary is in italics

HOW TO USE THIS PACK
How to use this pack – it is directed at ‘gay bisexual transgender and questioning people’ BUT NOTE at page 16 it includes ‘asexual’ ‘pansexual’ and ‘omnisexual’ people but gives no definition, then says definition of terms may change in any event. What is meant by ‘questioning’ people? How are they identified or defined?

The Glossary of Terms says (p19) ‘the process of exploring your own sexual orientation and/or gender identity’.
How is this different from ‘being a teenager’?

P7 Section 4 deals with identifying criminal charges ‘these are optional and additional. Teachers can use as many or as few of them as they wish… However we strongly recommend teachers consider them as they will deepen the students’ understanding of impact of anti LGBT behaviours…’ Unhelpful phrasing. So if this section is ‘optional’ all others are compulsory?
Clear indication given that teachers are to devote time to this
WHO is identifying criminal charges and why is this the job of a teacher?

P8 Before using this pack teachers are advised to ‘inform themselves’ by visiting a number of websites. Including Gendered intelligence and Stonewall. Clear evidence of bias in linked materials. Stonewall and Gendered Intelligence are well known for promoting narrative that questioning GI is ‘transphobia’. Other sites – Proud Trust and Schools Out I had not known about, but brief glance at their websites indicate they are in the Stonewall mould.
Why no reference to Transgender Trend or Safe Schools Alliance?

P9 ‘LGBT issues are best addressed in a school environment which explicitly supports and includes students’ What does this mean? Is asking questions about biology/GI to be seen as not supportive or inclusive and therefore frowned upon?

P9 All staff need to know how to challenge students demonstrating hostility to LGBT people What is the definition of hostility?

P9 Teachers must be especially mindful of the fact that some students in their groups will be LGBT and must be protected whether they are out or not Protected from what? Questions? Challenge?

P9 Make sure the students understand that anti LGBT behaviour is not caused by LGBT people; it is caused by people with homophobic attitudes. Trans people are not necessarily homosexual. Transgender is NOT a sexual orientation. This is setting up potentially corrosive expectations – that anyone who asserts anti LGBT bullying will be telling the truth and therefore presumably no investigation of their allegations will be required.

P9 Teachers should bear in mind that the most important thing is for students to discuss, think about and understand the issues This is not an appropriate exhortation when there is little clarity about what constitutes appropriate questioning and what will be seen as homophobia or transphobia. What ARE students allowed to discuss?

P10 STARTING TO USE THIS PACK
When an act is classed as a hate crime, the courts can impose a tougher sentence on the offender under the Criminal Justice Act 2003 It is odd for this sentence to immediately follow the exhortation that it is discussion that is important.

P10 What does the CPS mean by hate crime?
ANY criminal offence which is perceived by the victim or any other person to be motivated by hostility or prejudice based on race, sexual orientation, disability, or person being transgender Exactly the problems identified in the Fair Cop JR – Subjective definition of crime – Protected strands do NOT mirror the protected characteristics of the Equality Act – Being transgender in any event is NOT a protected characteristic. The actual protected characteristic is gender re-assignment “the process of transitioning from one gender to another.”

P10 What does the police mean by LGBT hate incidents? There is no statutory definition of a homophobic or transphobic incident Again – definition of ‘crime’ or ‘hate incident’ entirely subjective. Teacher has no objective standard by which to judge the behaviour of students.

P14 The CPS and the role of the police
P14 ‘It is more likely that prosecution is required if the offence was motivated by any form of prejudice against.. race, gender, disability age, religion, sexual orientation or gender identity’ Again, does not reflect the protected characteristics of the Equality Act. Why not?
Again, ‘gender identity’ is NOT in any event a protected characteristic.

[EDIT May 19 2022 I have revisited this blog post in light of the Tribunal hearing today, dealing with an appeal against the CPS refusal to disclose details of its discussions with Stonewall and other groups. I am now not sure what point I was making here; hate crimes deal with ‘monitored strands’ NOT protected characteristics and ‘transgender identity’ is a monitored strand. This confusion between ‘monitored strands’ and ‘protected characteristics’ is I am sure responsible for a lot of confusion about these issues]

P16 AIMS AND OBJECTIVES
What do we mean by LGBT+? … represents other sexual identities including pansexual, asexual and omnisexual and questioning people exploring their sexuality. Where will we find the definition of these terms?
Is there a universally accepted definition?
I note the Glossary at p19 does NOT contain a definition of ‘asexual’ ‘omnisexual’ or ‘pansexual’

Pg 19 defines ‘intersex’ as ‘When a group of conditions cause people to be born in between male and female. Sometimes this does not show up at birth.’ This is an inaccurate and offensive attempt to define disorders of sexual development.
P19 ‘transition’ is defined as ‘a process through which some transpeople begin to live as the gender with which they identify, rather than the one assigned at birth’. ‘Gender’ plays no part in the birthing process. ‘Sex’ is observed and recorded at birth unless a baby is one of the tiny percentage who have ambiguous external genitalia, due to a DSD.
P19 Transphobia is defined as ‘discrimination against and/or dislike of trans people’ This is NOT the definition of a ‘phobia’. The NHS defines a phobia as “an overwhelming and debilitating fear of an object, place, situation, feeling or animal”
Again – WHAT constitutes discrimination or dislike? Any questioning of the assertion that a transwoman is a woman for e.g? Any reference to humans as sexually dimorphic species?
How can a mere ‘dislike’ of any person’s characteristics, possibly constitute a ‘phobia’ And absent any accompanying discrimination, can it become a hate crime or hate incident?

P20 ‘This glossary is not a definitive list and it is important to remember that people should be referred to in the way that they wish to be referred to. It is also important to note that definitions can vary and can change over time’. In the context of guidance offered under the mantle of identifying hate crimes, this simply isn’t good enough. How will the teacher know the definitions have changed? Who changes them? How is knowledge of this change disseminated?

P 21 SECTION ONE Activities and worksheets
P23 Everyone has a sexual orientation … it is the part of a person’s identity that describes who people experience attraction to, commonly based on gender… gender identity is a person’s sense of themselves as being a boy/man woman/girl both or neither. Gender identity is not necessary dictated by a person’s physiology. This is nonsense. Sexual orientation is a monitored strand. It means sexual attraction to the same sex. This definition effectively erases lesbians by saying that a male bodied person can identify as a woman even if retaining penis and testicles.
If a teenage lesbian then objects to a sexual encounter with a male bodied person – is that sufficient ‘dislike’ or ‘discrimination’ to warrant a referral to the police?

P24 Students should be told that the behaviour in school is dealt with through education, the school disciplinary procedures etc.. it would be rare for incidents to be reported as crimes. Explain then the circumstances in which an incident WOULD be reported as a crime.

P25 Categories of hate crime or hate incidents As a general point, some of the examples given are filmsy and particularly dangerous when coupled with the existence or not of ‘hate’ being determined by the alleged victim or bystander.
‘ridiculing and stereotyping comments’ Unclear what this means.
Ostracising and excluding from friendship groups So it is enough that the ‘victim’ or any bystander simply perceives this ostracism as being by virtue of being trans
How can schools sensibly police friendship groups?
Rejecting someone or not wanting to work with them because of their sexual orientation, trans identity or perceived trans identity So a lesbian teenager is compelled not to ‘reject’ another student who alleges they are a transwoman?
What IS included in this word ‘rejecting’?
Showing or distributing anti LGBT+ leaflets comics or other propaganda’ Define propaganda! On this definition the recent episode of South Park would constitute ‘hate’
Wearing Anti LGBT+ Symbols – for eg badges or Tshirts What will count as ‘anti’? The LGB Alliance? Fair Cop?

P33 LGBT Bullying ‘worse’ than all other forms of bullying I think this is the core of my concern with this document. Primacy is being given to LGBT rights on a false basis. For example claims this bullying is ‘different’ because people get killed. Well, so do disabled children! So do black children! This is a very concerning document. It is unlawful to give primacy to right group over another. That in itself risks discrimation.

The person being bullied or attacked because of their sexual orientation will be afraid that other members of their community might also be attacked and are at risk WHAT IS THIS DRIVEL
Most of the ‘examples; here apply equally to race hate.

P36 It is never appropriate to ask a gay person to use separate changing facilities Really? So where does the gay transwoman go, if in reality she is visibly male bodied with penis and testicles and makes girls uncomfortable when sharing a space? Presumably if any girl objects she is guilty of ‘hate’.
P67 Tell the students that no one should put up with bullying, whether its happening to them or they are drawn into a situation where it is happening to someone else. So provide an impetus to escalate any complaint?

P90 We will not tolerate bullying or harassment and if we see it we will report it and see that it is dealt with. Sinister in context. Report to who?

P101 SECTION FOUR IDENTIFYING POTENTIAL CRIMINAL ACTIVITIES
Inside and outside school – on the bus So children are to be on the look out for crimes even beyond the school.
P104 In the final class they can discuss the possible charges they have identified and what the potential consequences would be Sinister in context
Tell the students that guidance from the EHRC generally encourages organisations and service providers to be trans inclusive. This means treating trans people according to their gender identity and only excluding trans people from facilties in exceptional circumstances where this can be justified. Unhelpful and confusing fudge of existing law.
Worksheets to ‘train’ children as investigating offices and to decide what charges to bring Dear Lord.

Further commentary on the videos by a colleague at Fair Cop

SP : I have not seen the videos, but from these comments I am concerned. The use of language such as ‘henchperson’ seems utterly bizarre and deliberately pejorative.

  1. Videos: FEAR acronym – False Evidence Appearing Real – does not distinguish between justifiable fear and baseless prejudice. Conflating the two, and reducing fear to the category of baseless prejudice .is gaslighting girls into accepting boys into their toilets and other single-sex facilities.
  2. Definitions of homophobia, transphobia, etc. Interesting to note that the definition of homophobia does not extend to those perceived to be gay, but the definition of transphobia does extend to those perceived to be trans.
  3. The definition of hate crime/incident: this includes not merely acts that are objectively negative (where it is perceived that the perpetrator is motivated by hate), but also omitting to do something (where it is perceived that the perpetrator is motivated by hate). This omission does not need to be something that an individual reasonably and legitimately expects, or that the law demands is provided (e.g toilets). The omission could also be something that the LGBT+ person simply desires (e.g. the girls toilets, or admission to a particular girls friendship group). The only necessary factor is that it must be perceived by someone that the decision has been motivated by hate.
  4. Video: Transition.
    The questions in and of themselves are actually quite valid. Here we see the attitude of the girls (which is aggressive) conflated with the content (which includes that which is reasonable) with the result that the content is also positioned as unacceptable and a hate incident.
  5. Video: Toilets.
    The girls merely correctly identified him as a male.
  6. Discussion of, much less asserting of, sex-based rights under the EA becomes impossible and falls into the category of hate bullying/hate incident/hate crime. This is because any discussion of these rights, that permit the exclusion of trans individuals where it is a proportionate means to a legitimate end, must make reference to people’s biological sex whatever their felt gender identity may be. Thus it involves misgendering, upsetting people, being seen as offensive and may out people as trans against their wishes. It simply cannot be the case that discussion of existing rights enshrined in law, and the protection and needs of the members of a protected category become hate incidents or hate crime and liable to criminal prosecution.
  7. Where are the other 2 in the series of 3 resource packs developed to increase awareness of identity-based bullying and hate crime? Are these similarly forbidden to parents? (This is different from edition 1 of this document).
  8. The definition of transgender on page 19 means that a male who has neither socially nor medically transitions should still be fully accepted as a girl purely based on his say so.
  9. Use of the term ‘henchperson’ is extremely sinister. This entire document is designed to install fear and to train children to police each other’s behaviour, friendship groups, speech etc.

Further Reading

See here the ‘live tweets’ of the Tribunal hearing on May 19th 2022 to determine an appeal against the CPS refusal to disclose information about its discussions with Stonewall and others, on the basis that ‘public interest is minimal’ and such sensitive issues require a ‘safe space’ for full and frank discussion.

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

This is a post by Sarah Phillimore

And what are the dangers for children of ignoring this?

TLDR:

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

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

Safeguarding Children.

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

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

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

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

Gillick competence

Gillick competence refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. It is a very important concept in the area of consent to surgical treatment – if a doctor doesn’t have a valid consent from either a parent or the child, or a court order, the doctor could be guilty of a criminal offence if he or she goes on to operate on a child.

Although a ‘child’ is defined as a person between the ages of 0-18, Gillick competence is only relevant to children under 16. Once children reach 16 they are held by various statutes as able to make their own decisions across a range of issues.

These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”

‘Gillick competence’ derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 where a mother attempted to argue that children under 16 should not be provided any treatment or advice around sexual issues. The court disagreed and said that younger children could access such services, as long as they were able to understand the implications – i.e. were they ‘Gillick competent’?

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

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

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

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

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

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

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

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

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

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

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

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

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

Parental responsibility

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

The House of Lords in Gillick approved the following dictum of Lord Denning MR

… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

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

Interplay between Gillick competence and parental responsibility

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

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

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

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

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

And at para 73:

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

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

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

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

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

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

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

Be wary: guidance and commentary which fails

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

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

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

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

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

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

Further reading

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

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

If you tolerate this – then your children will be next

This is a post by Sarah Phillimore.

The end of safeguarding for children?

Young children do not have capacity to make decisions

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

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

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

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

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

In Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.

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

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

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

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

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

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

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

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

https://twitter.com/SVPhillimore/status/1200357520461762562?s=20

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

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

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

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

There is a disclaimer:

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

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

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

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

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

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

Eliminate the minimum age requirement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Advice is given about activism ‘behind the scenes’:

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

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

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

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

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

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

Further reading

https://twitter.com/LindaL16/status/1203001207301771265?s=20

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

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

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

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

No one, no issue is off the table when it comes to safeguarding

This is a post by Sarah Phillimore.

I was sent a copy of an article this evening. It appears in the October edition of ‘Professional Social Work Magazine’ which I am told is a publication for those who belong to the British Association of Social Workers (BASW) a powerful and influential organisation which claims over 20,000 members, ‘committed to the highest standards of practice and ethics’.

The article was written by someone who did not want to reveal their identify, in order to protect that of their child, which I can quite understand. The article is titled ‘Listen to children on gender – what being the parent of a trans child has taught me’.

It is the account of a teenager who struggled with a ‘gender identity’ that did not ‘match the sex they were assigned at birth’ and how the parents supported the child to transition from female to male after the child made his wishes known at 12 – having spent ‘months, if not years’, ‘thinking about his body as wrong’.

It is a sensitive account from a parent about how they responded to their child who, on this account clearly did appear to be expressing strong views that had been held over time. I have absolutely no difficulty with this. It is clear that ‘gender dysphoria’ does exist and a small percentage of people will benefit from surgery to bring their physical body more into alignment with what they believe their body should be.

However, there will, I am equally sure, be those who profess a wish to ‘change sex’ who have other issues and difficulties that medication or surgery will not alleviate. Such intervention may have permanent and life long consequences and should not be entered into lightly. Enormous caution should be taken around ‘supporting’ a child who is not Gillick competent into making any serious decision about their lives.

And this is where the article began to make me feel very uneasy. Far from restricting it to an account of one child’s journey, it is clear that the author wishes to offer far more general guidance and does so on the basis of assertions that are – in my view – profoundly misguided and actively dangerous.

The author raises as a ‘myth’ that hormone treatments are given to children under the age of 16 or surgery is considered only at 18. Possibly she or he is unaware of the activities of Dr Helen Webberley and what appears to be a growing number of activists who demand that ‘puberty blockers’ should be available to children as young as 12. Ironic also is the fact that the CEO of Mermaids Susie Green took her child abroad for surgery when the child was only 16.

Offering up these age limits of 16 and 18 as some kind of inviolate barrier beyond which people cannot pass is simply naive – particularly given the inevitable ‘drive’ for increased intervention at a younger age as that will make it easier for a child to ‘pass’ – particularly a boy who wants to become a girl.

But my real fears are raised by the ‘bullet points’ at the end of the article

  • Just because a child is telling you they are transgender, does not mean they are too young to know this
  • Its not possible to force a child or young person to be trans
  • parents supporting their child in their gender identify is not a safeguarding issue

I wonder if the author of this article has read the judgement in Re J?  I wrote about this in more detail in this post – In whose best interests? Transgender children: choices and consequences – and the issues around bear repeating here.

This is an important case – J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016).

The Transparency Project wrote about the case and the media response here and summarised the court’s approach in this way:

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.

No one and no thing is exempt from safeguarding

I am profoundly worried by that last bullet point in the article – “parents supporting their child in their gender identify is not a safeguarding issue”.

The mother in re J was supported throughout by Mermaids, who issued an angry press release after the judgment and said there would be an appeal. There was not. The author of this article refers its readers to Mermaids as a useful resource.

It is surely the antithesis of any responsible social work or safeguarding policy to set up groups of people or particular issues that are immune from examination or critical regard. While the author’s 12 year old child may have thought long and hard about the issue and demonstrated his Gillick competence beyond doubt – I suggest the same certainly cannot be offered with regard to a 4 year old. But is the issue of ‘trans’ now off the table for social workers? Whatever the child’s age or level of understanding – if he or she declares they are trans, then that is that? No further investigation or assessment is required? How can this be right? How is this good social work?

I am really worried about this. I would be interested to hear from other social workers about what they think, and how they would approach a case involving a very young child who wished to embark upon a path of ‘changing sex.’