Genspect Conference Lisbon September 2024

The battle for children's capacity; how the family courts got it very seriously wrong but seem to be now back on track.

This is the longer and dryer version of the talk I ended up giving at the Genspect Conference in Lisbon.

Before I spoke, I was inspired by the fury of Bev Jackson from the LGB Alliance. She was right to be raging. I was going to give a cautiously optimistic presentation about how the courts were now on the right track - but for nearly 10 years they failed children, absolutely and utterly. Of all the professions, law and medicine ought to have been able to withstand gender identity ideology. Both have ethical foundations built on respect for the truth. Both failed. It is shameful. We should all be very angry.

I said I would publish links to two crowdfunders -the judicial review of the decision of the CQC to register ‘Gender Plus’ as fit to give hormones to children and the Court of Appeal challenge to a refusal to make giving hormones to children a special category of treatment. I appreciate the limits of LawFare which I also discussed. But these are both cases directly impacting the welfare of children right now and I think they are both worth it. If you can donate anything to either, please do.

Children, Gender Identity, Autonomy and Paternalism

The developing response of the court’s to a child’s claimed gender identity

1.     The last decade has seen a significant shift in the adoption of ‘gender identity’ as an organising category in society, rather than sex. This has not been confined only to adults. ‘Gender identity’ is something that even very young children are said to have and to wish to express. The particular problem ‘arising out of ‘gender identity’ for children is that many claim it must be supported by medical intervention such as puberty blockers and hormones. The evidence base for such treatment is sparse at best and regardless, children who are under 16 and not Gillick competent cannot consent.

2.     This brings ‘gender identity’ directly into the family justice system.  A dispute between parents or between parents and clinicians can only be resolved by the court.

3.     My aim in this half an hour is to briefly examine the courts’ approach over time regarding cases around the social and medical transition of children. I think not only is this useful evidence about the degree to which any system is vulnerable to ideological capture but it also shows optimism for recovery and useful lessons in how ideological capture can be challenged.

5.     Whenever we make decisions about children we meet significant tensions between the intersection of paternalism and autonomy. Those tensions are exacerbated by the reality that any decision about ‘best interests’ for a person who lacks capacity is inevitably the imposition of a third party’s decision about what is best for them. That is an onerous task in any arena; a near impossible one when carried out against a back drop of considerable controversy about what the evidence in reality supports.

6.     The youngest child referred to the Tavistock at the time of the BELL case was only 10 years old. But the majority of those referred were older and could potentially have capacity to consent to treatment. The focus here will be on those children from about 12 upwards.

7.     I first emphasise the key disadvantage of ‘LawFare’ to deal with wide societal controversy. It is not appropriate for judges to make law, that is the job of Parliament. Judges interpret law and decide if public bodies have acted lawfully or not. This essential constriction of the power of the courts has shown starkly how limited the court system is to deal with this unprecedented situation where an ideological commitment to prioritising gender identity has robbed many adults of their ability to rationally analyse the evidence before them, which does not support an assertion that very significant and irreversible medical interventions are in children’s best interests. To be blunt, the courts understandably find it hard to accept that parents and doctors have both gone mad at the same time. Courts are not a public inquiry. They can decide only the case in front of them.

8.     I note for example Mr Justice Francis at para 25 in NHS Trust v Mother, Father and G [2024] EWHC 2207 (Fam). The Judge rejected the Code of Practice that applies to the Mental Health Act, which warned medical practitioners that parents were not permitted to consent to everything;

I agree with that Judgment of Lieven J. but would add this, perhaps by way of qualification: in [51] above, Lieven J said, " If the parent was exercising parental rights, including consenting to the deprivation of liberty, in a way which was said to be contrary to the child's best interests then such a decision would no longer fall within the zone of parental responsibility". It seems to me that even a decision which was made contrary to the child's best interests could still be a decision made in the exercise of parental responsibility. Every day parents will exercise parental responsibility and will sometimes make decisions that are contrary to their child's best interests. This is still exercising parental responsibility. It is the duty of the State to intervene where a decision is contrary to the best interests of the child, and might cause the child to suffer significant harm. However, where, as in the instant case, the treating medical team and the parents agree, the state's intervention is unnecessary; indeed, in my judgement, it would be inappropriate unless, for example (in what I believe would be a very rare case) a local authority or the Children's Guardian took the view that both the hospital and the parents had "got it seriously wrong". Such cases, as I have said, will be extremely rare.

9.     By being reluctant to accept that loving parents or highly qualified doctors have lost their senses, ensures that the courts quickly also became captured. The lack of curiosity and analysis in some of the cases about medical transition is shocking. And we simply do not see that lack of care in any other area of dispute over children. For example, consider this very anxious consideration given to a child’s wish to change her name so she could sever a link the father who sexually abused her.  A name of course can be changed back. Breasts once amputated cannot regrow.

10.  The court said: BC, Re (Child in Care: Change of Forename and Surname) [2024] EWHC 1639 (Fam) (26 June 2024) (bailii.org)

A change of forename and/or surname for a child is a serious decision whatever the age of the child. The court's paramount consideration is the best interests of the child. The views of others, in particular of those with parental responsibility, are to be taken into account. The family's views are relevant insofar as they may affect their conduct and attitude and therefore affect the welfare of the child. The views of the Local Authority, having parental responsibility in respect of a child in care, are of importance. The court must take into account the child's competence to make the decision, their age and maturity, the steadfastness of their wish to change their names, and the reasons behind the wish to make the changes. The court should consider the choice of name(s) – are they frivolous or would they be liable to be detrimental to the welfare of the child because of their nature or associations? The court should have close regard to the impact on the child of allowing them to change their name(s) as well as the impact of refusing them leave to do so. In the case of an older child, the court can have regard to the fact that a 16 or 17 year old not in care and not subject to a relevant child arrangements order or special guardianship order, could change their name without consent or leave, as could any 18 year old

Brief history of the rise of the trans child

11.  But as the history of the ‘rise of the trans child’ shows, I have some sympathy with the courts who were presented by the medical profession with a ‘fait accompli’ about the importance and necessity of medical transition, based on ‘international good practice’ that was in fact nothing of the sort. It takes a considerable amount of reading and thought to fully take on board the ‘rise of the trans child’ and how this has been promoted. It’s taken me about four years to feel that I have properly understand the genesis of this phenomenon. The narrative has been carefully crafted to position ‘transition’ as a fundamental human right, to allow a person ‘to be who they have always known they were’ and essential to prevent children killing themselves.

12.  By the 1990s in the UK, parents of ‘gender dysphoric’ children began to request hormone suppression at the first signs of puberty. Such ‘puberty blockers ‘ administered at a young age, followed by cross sex hormones, would enable a child to ‘pass’ more effectively as the opposite sex when an adult.

13.  In 1997 the European Court stated in X, Y and Z v the UK (1997) 24 EHRR 143 that transexuality “raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States”

14.  By 2007 we had the’ Yogyakarta principles’ which spoke about ‘deeply felt internal’ experience of gender, and around the same time the Department of Health and the Endocrine Society developed new guidelines which recognised a child’s sense of ‘gender’.

15.  As Dr Cass noted, this was happening alongside a shift in the model of medical care – from ensuring good health from a robust evidence base, to seeing this as an unacceptably ‘narrow’ goal and instead seeking to ensure the patient’s self fulfilment. See for e.g.  Forever young? The ethics of ongoing puberty suppression for non-binary adults | Journal of Medical Ethics (archive.ph)

16.  The explosion of referrals to the Tavistock began -  97 in 2009/10 to 2,016 in 2016/17.  In 2015 Stonewall added the ‘T’ to the LGB. We end up in 2024 with high profile lawyers such as Jolyon Maugham making public and dire predictions that the decision of the Government to stop prescription of puberty blockers will cause a massive leap in the suicide of children.

17.  In my own practice, I saw not a single case involving a child with a claimed ‘trans’ identity from 1998 – 2020. Since then, I have been involved with six cases where the subject child had a ‘trans identity’. 3 were teenage girls with a history of serious trauma and significant mental health concerns.

How do the courts deal with a child’s consent?

18.  The law In England and Wales approaches this by making a distinction between children who are under 16 and over 16 and retaining in the High Court, an over-arching ability  to override a child’s capacity at any age, via the inherent jurisdiction, if to do so is in the child’s best interests and will prevent significant harm

19.  Once a child reaches 16, provided they don’t have an impairment of their brain functioning which means they lack capacity under the Mental Capacity Act 2005, they are considered to be able to give consent to medical treatment as if they were an adult – section 8 Family Law Reform Act 1969.

20.  If the child is under 16, they can provide valid consent if they are ‘Gillick competent’. This phrase derives from the decision in the (then) House of Lords in Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. A mother objected to a her daughter if under 16 being able to consent to contraception. The House of Lords recognised that the capacity of a child to make serious decisions will increase alongside age and understanding. Case law has shown a distinction between cases where a child wanted to choose treatment or where a child wanted to refuse often life saving treatment – the latter is more likely to see a child being found not competent, because the consequences of refusal are so severe. See for example the Australian case 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.

21.  But regardless of age or capacity, the court can still be asked to exercise its ‘inherent jurisdiction’ to allow or refuse treatment if to do so is in the child’s best interests and will prevent significant harm. – most reported cases concern issues around the likely death of a child if treatment is refused.

22.  All of this is of course an adult assessment made by adult clinicians and adult judges – what do they see as the value of the medical intervention and the consequences of the refusal? The imminent death of a child if the treatment doesn’t go ahead, tends to focus adult minds and ensure a shift away from autonomy to paternalism.

23.  But the massive problem with invasive treatment for ‘gender distress’ is that the adult assessment, both in the medical and legal professions, has been so poor for so long that paternalism has been jettisoned almost entirely to a promotion of the child’s ‘autonomy’. Given that the evidential basis for the efficacy of medical or surgical transition is so poor, this is using concepts such as ‘autonomy’ and ‘capacity’ to provide illusory justification for a decision that does not appear to be directed at any individual child’s welfare, but rather to support a political and ideological framework around the desirability – or even necessity – of ‘transition’.

Tracking the courts response - how is it working out in practice?

24.  So how has the family justice system in England and Wales stood up to this? This is a system which prides itself on placing ‘proof of facts’ at its centre in order to establish the primary principle of the Children Act 1989, that the welfare of the child shall be the court’s paramount consideration. The answer I am afraid is ‘not very well’.

25.  We started off promisingly with Re J (A Minor) [2016] EWHC 2430 (Fam) (21 October 2016). This case was about a mother who asserted that when her son was 4 he wanted to become a girl,  ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof and the school denied it was happening. She was supported throughout by the charity Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J wished to be a girl. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’

26.  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.

27.  In 2016 it was clear to see that the court was doing its job to protect children; undertaking an objective appraisal of the available evidence and making a decision in the face of angry opposition from Mermaids – who declared at the time that this decision would be appealed. It was not.

28.  However, the approach of the court seems to have shifted quite dramatically only 3 years later in the case of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30. This involved foster carers who had two unrelated children in their care who decided they wanted to transition – the youngest aged 4 years old. The local authority were applying to withdraw care proceedings, so it was a very different situation from re J. But even so, it’s interesting to see how the Judge framed this issue of transitioning pre schoolers:

Notwithstanding even the Guardian’s caution in respect of the openness of [the foster carers] to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of [the foster carers] it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

29.  This case is remarkable because of the two immediate questions it poses, that demonstrate a serious failure of the family court to value proof of facts or the welfare of the children.

30.  The court simply had no evidence at all to conclude that it is ‘overwhelmingly obvious’ that a 4 year old will experience no harm from a decision to transition from male to female at such a young age (and against the wishes of the school). In 2019 there was no cohort of children who had been tracked from toddlerdom to adulthood to see if full social transition at a young age was something that helped or hindered their emotional, physical and sexual development. As The Cass Review made clear, five years later, social transition was not to be seen as something ‘neutral’ -it is a serious psychological intervention. 

31.  Further, the court seemed to lack any curiosity as to why two unrelated children in the same family, both wanted to ‘change sex’ at a very young age. To what was a genuine expression of their wishes and feelings, rather than a product of environmental and social pressure from the adult care givers? There is considerable and I think reasonable fear expressed by gay people that some parents would rather have a trans child than a gay child as this is more ‘socially acceptable’.

33.  But then came Bell v Tavistock in 2020 – a significant and long overdue exposure of the lack of evidence and the genuine disquiet of the Divisional Court who thought it very unlikely any child under 16 could consent to any of this.

34.  What this case revealed was horrifying. 70% of the children referred had more than 5 associated co-morbidities, such as abuse, depression, eating disorders, self-harm and 25% of the children referred had spent time in care, compared to under 1% of the general population. It was not surprising that the Divisional Court attempted to set down guidelines as to when children could or could not consent.

35.  But this went beyond the parameters of a judicial review, which exists simply to judge the lawfulness or otherwise of the acts or omissions of a public body. The Court of Appeal therefore had to row back, concerned the Divisional Court had trespassed into matters that had to be determined by clinicians or Parliament.

36.  But what this case exposed was seismic for both Parliament and the family justice system becoming the catalyst for serious official concern. the commissioning of the Cass Review and some very necessary re-adjustments to clinical practice in this area for the under 16s.

So what happened after the interim and then final Cass Review?

37.  There was a troubling case after the interim report came out in February 2022, which showed the courts still adopting an uncritical approach to irreversible intervention. Judgment in the case of Re S (Inherent Jurisdiction: Transgender Surgery Abroad)[2023] EWHC 347 (Fam) was handed down in February 2023. The President of the Family Division denied that a teenage girl ‘Sam’ was at risk of any significant harm if allowed to travel outside the country to have a double mastectomy (a procedure that was not permitted in the UK) saying

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.

38.  It is difficult to read that a 15 year old can be deemed ‘so well settled in his life as a young man’, knowing what we do about the maturation of the adolescent brain and the paucity of evidence in the field of medical transition.

A welcome shift back to evidence

39.  But a welcome shift back to reliance on evidence does appear to be happening, evidenced by two cases where judgements were handed down very shortly after the final report of the Cass Review in April 2024. Lawyers acting on behalf of the parent who was objecting to the medical transition of children asked the court to put transition into a ‘special category’ of treatment and exercise its inherent jurisdiction to deny even children with capacity the ability to consent, up until the age of 18.

40.  Interestingly the first was a judgment from the President. Re J (Transgender: Puberty Blocker and Hormone Replacement Therapy Approved Judgment- Re J 1 May 2024 (judiciary.uk) In 2023 he did not doubt the capacity of a 15 year old girl to understand what it meant to amputate her breasts, but by 2024 was very much more concerned by the massive amounts of testosterone given to a 15 year old girl by Gender GP, which could have killed her.

41.  J had a diagnosis of autism and anorexia, and had been detained 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. 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.

42.  The parties then reached agreement that J would undergo a six month assessment with Gender Plus so there was no immediate need to ask the court to make decisions about capacity. Gender Plus was registered by the CQC to provide hormones in January 2024, prior to the Cass Review.

43.  The court however felt it would be of assistance to set out its approach thus far, which was a cautious one but welcome for its recognition of the serious risk of harm that this child had faced and that the evidence for such intervention was not established. The President noted that understanding around cases of gender dysphoria ‘is still very much in the process of development’ but that in the absence of intervention by Parliament, the court must be careful to move forward slowly rather than attempt to usurp the role of Parliament.

44.  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.

45.  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’.

46.  The court was able to recognise the dangers posed by Gender GP and that any further approach would require 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

47.  The second case was J and O and P [2024] EWHC 1077 (Fam). where I represented the applicant mother. This case involved a female child who had socially transitioned to be perceived as male around 2020. Her father supported medical transition, the mother objected and applied to court. The court was willing to prohibit all treatment while the child was under 16, but with her 16^th birthday approaching the matter was listed for a final hearing where the child was asking the court to remove all prohibitions and allow her to approach Gender Plus to start taking testosterone. All parties agreed that no approach should be made to Gender GP.

48.  Only a few days before the hearing started, 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.

49.  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. This would allow the court to prohibit treatment to any child, if to do so was in the child’s best interests.

50.  Alarming features of this case were that the child was in a relationship with her step mother’s daughter, both identifying as trans males and living under the same roof. The independent court appointed guardian expressed great confidence that she understood all the risks and benefits of transition – yet had not asked any questions about fertility. Further it was not possible to find any endocrinologist willing to give evidence – a stark reminder of the toxic polarisation of the ‘debate’ in this area.

51.  The mother asserted that it was simply not possible for Z 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.

52.  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 Z was prescribed hormones by Gender Plus. Z was noted to be ‘well informed’ and willing to undergo the Gender Plus assessment process.

53.  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 Z was grateful for in the future.

54.  A very interesting and positive development in this case is that the mother asked for permission to appeal and this was granted by the Court of Appeal on 13^th August, agreeing that the mother raised a compelling argument about whether a judge should override the decision of an adolescent older than 16 with capacity to consent in circumstances where treatment “is being offered privately [in the UK], whilst not lifesaving or sustaining, is irreversible, highly controversial and could not be provided in accordance with some of the recommendations contained in the Cass review.”

Conclusions  

55.  Some green shoots indeed. I do not know when the Court of Appeal will hear this case but the fact that permission was given is immensely significant. We have clearly travelled a long way from the bizarre assumptions of the High Court in 2019 about primary school children, and the blithe assumptions in 2023 that a 15 year old girl is able to consent to a double mastectomy to cement her ‘male gender identity’

56.  My optimism is also supported by the Government’s decision to extend the ban on prescribing puberty blockers and the failure of the Good Law Project’s attempt to challenge this in court. There is also a legal challenge to the registration of Gender Plus by way of judicial review. And as we saw with Bell v Tavistock in 2020, one of the benefits of LawFare, even if you don’t win your case is that you push your arguments firmly into the public arena and force those to take notice who may have been blissfully unaware or ill informed.

57.  But of course any joy I take in these developments is very much diminished by the thought that we should never have been in this position. Both the family justice system and the medical profession appear to have been ripe for capture, prepared to abandon the fundamental ethical basis of their existence, being a reliance on evidence of risks and benefits, to secure the welfare of the children before them.

58.  Quite how this happened I do not know, and the continued attacks on the Cass Review by such as the British Medical Association should make us all wary. But the courts themselves appear to be capable of rescue. The phrase ‘sex assigned at birth’ may unfortunately be now embedded in judicial vocabulary but the necessary scepticism exemplified in the Re J of 2016 now seems back on the table following the Re J of 2024.

59.  So what is the way forward? Simply I think to keep doing what we are doing. Make no apology for demanding that irreversible and significant medical interventions for children are based on evidence. It is not ‘hatred’ or ‘bigotry’ to demand this. The shift in the approach of the courts will I hope enable parents to stand up, even against the other parent or a medical professional and sound the alarm.

60.  But the courts of course, are right. They do not exist to rectify social controversy. They cannot allocate funding or determine how the medical profession regulates itself. For this we need Parliament. If Gender Plus and Gender GP fall – and I hope they do – there are already very disturbing indications on social media that children will be encouraged into a DIY transition via wholly unregulated markets.

61.  There is no doubt that child hood mental health distress is sky rocketing; exposure to social media certainly plays a part. In the UK resources are stretched very thin indeed. Gender identity appears to be just one of many maladaptive ways that troubled and traumatised teenagers react against unhappiness and fear, but possibly the only one that has received court sanction and medical approval. I hope the tide is turning but the distress of our teenage cohort will remain. How we tackle that is an issue far beyond my ability to determine but I hope I have played my part in attempting to restore sanity to this area of law and medicine.