The Respondent to the application was the child’s father who, not only did not consent to the administration of the treatment but did not agree that such treatment was required or, indeed, that his child had gender dysphoria at all.
The stage 2 treatment involves the administration of oestrogen or testosterone for the purpose of encouraging the development of physical characteristics in the sex with which the child psychologically identifies. The effects of stage 2 treatment are considered to be irreversible.
At the time the Application was heard, the child was aged almost 17 years. The child was born as female but reported from a young age of never feeling like a girl and identified as male. There was a long history of gender non-conforming behaviour, including the use of the pronouns “he, him” and dressing as a male.
The Court had to consider two issues:
- whether the child was Gillick competent to consent to the administration of stage 2 treatment for gender dysphoria, and, if so;
- whether the child should receive the stage 2 treatment notwithstanding the views of one or more of the child’s parents.
In relation to the first issue, the Court was satisfied the child was Gillick competent to consent to the administration of stage 2 treatment because the child was able to:
- comprehend and retain the information relevant to the proposed treatment;
- describe, in appropriate terms, the nature of the treatment, its advantages and disadvantages;
- with the help of medical practitioners, weigh the advantages and disadvantages;
- express an understanding of the consequences of the treatment; and
- be clear in expressing a free view as to what the child would want in the circumstances.
In relation to the second issue, the Court found that the child should not be denied the opportunity to receive treatment without the consent of both parents when the child is Gillick competent.
The Court commented at [24]:
‘Such a conclusion would be inconsistent with the human rights of the child and a recognition of the importance of Gillick competence and its effect as a matter of law’.
The Court considered the views discussed in the earlier decision of Re: Jamie1 (and later Re: Imogen2) in relation to the approval of treatment for gender dysphoria. The conclusion reached in those decisions was that a child who is Gillick competent could consent to treatment and that no Court authorisation was required, absent any controversy. The controversy that was then referred to was a dispute between the parents regarding the treatment. In those circumstances there was a need for authorisation.
In the present case, the Court did not agree with the findings in Re: Jamie and Re: Imogen and held at [28]:
‘The conclusion that there is no need, once the child is Gillick competent, for Court authorisation means that it is unnecessary to consider a further aspect of the Applicant’s application which was the making of declarations authorising the treatment’.
The Court went on to say at [29]:
‘There is overwhelming evidence that the child has gender dysphoria and there is no reason why the Court ought not to accept the detailed expert opinions expressed in the affidavit material relied on in the application. Further, that material supports an overwhelming conclusion that it is in the best interests of the child to undertake stage 2 treatment and that the child, knowing the consequences of that treatment, wishes to have that treatment and consents to the giving of such treatment’.
The Court ultimately considered it appropriate to make the declaration sought so that medical practitioners who received the child’s consent may, because of that consent, validly and lawfully act upon the child’s consent.
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- Re Jamie (2013) 50 Fam LR 369
- Re Imogen (No 6) (2020) 61 Fam LR 344
