Taking a child abroad for a double mastectomy

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

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

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

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

The run up to the final hearing

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

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

The final hearing – application to withdraw

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

So what went wrong?

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

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

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

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

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

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

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

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

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

Comment – no evidence of significant harm?

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

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

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

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

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

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

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