O v P and Q [2024] EWCA Civ 1577
This was an appeal from a decision in the Divisional Court by Judd J in April 2024. The case raises a question at the core of the transgender debate involving young people: consent.
The young person at the centre of this litigation is now 16 years old. He was born female and started to identify as male in 2020 at the age of about 12.
His parents were estranged. In these circumstances his mother appealed against the refusal of her request for an adjournment of proceedings in which she sought a prohibited steps order and a best interests declaration in relation to her child, pending an assessment being undertaken by a private gender dysphoria clinic (Gender Plus), the first private gender dysphoria hormone clinic in the UK.
It was accepted that, now the young person was by now 16, no Gillick competence question arose (see Sir James Munby at [55] in An NHS Trust v. X [2021] EWHC 65 (Fam), [2021] 4 WLR 11, and MacDonald J at [48]-[49] in GK and LK v. EE [2023] EWCOP 49). It was also accepted that the young person was “impressive, hardworking and intelligent” and had no mental health problems.
Puberty Blockers and Cross-Sex Hormones: Policy Background
As Voss MR noted, a number of events coalesced to make this case a particularly sensitive one at the time of this appeal.
(i) the Cass Interim Review in 2022 led to the closure of the Tavistock clinic that had been in issue in Bell v. Tavistock;
(ii) on 12 March 2024, NHS England published a clinical policy concluding that there was not enough evidence to support the safety or clinical effectiveness of puberty blockers to make the treatment routinely available (outside a research protocol);
(iii) as the first instance judge recorded at [58], NHS Scotland had announced before the hearing that persons under 18 would not be prescribed cross-sex hormones;
(iv) on 21 March 2023, NHS England published a clinical commissioning policy laying down stringent eligibility and readiness requirements to be met before cross-sex hormones could be administered to those over 16;
(v) on 9 April 2024, NHS England wrote to all NHS gender dysphoria clinics asking them to defer offering first appointments to those under 18 “as an immediate response to Dr Cass’s advice that ‘extreme caution’ should be exercised before making a recommendation for [cross-sex hormones] in [children]”;
(vi) on 10 April 2024, the Cass Review was published*; and
(vii) on 11 December 2024 (the day before the hearing before the Court of Appeal), the government announced that the temporary embargo on the use of puberty blockers would be made indefinite (subject to a review in 2027).
* For the purposes of this case, the mother highlighted that the Cass Review had called into question the quality of the evidence on which hormone treatments for adolescents are based. Dr Cass says at page 13, for example, that “[t]he reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress”. Moreover, Dr Cass highlights new evidence about brain maturation continuing into the mid-20s, whilst it was originally thought to finish in adolescence. Dr Cass recommended that puberty blockers should only be available within a research protocol, and that recommendation has now been implemented.
The judge at first instance had said first that, whilst the findings of the Cass Review might turn out to be very significant, she did not think they justified her departure from Bell v. Tavistock and from Lieven J’s decision in AB v. CD and Tavistock [2021] EWHC 741 (Fam) (AB v. CD), which the Court of Appeal approved in Bell v. Tavistock.
Arguments before the Court
The father sought to terminate the proceedings begun by the mother on the ground that they were causing the young person significant distress.
The mother contended that the proceedings should be adjourned because the legal and regulatory landscape for gender dysphoria treatment was changing rapidly; the Cass review had only been published a week before the hearing before the judge; and Gender Plus was a private provider whose practices and procedures were diverging from the NHS approach. In these circumstances, it behoved the court to keep an eye on a case of this kind in a time of flux. The mother also argued, though not strenuously, that cases concerning treatment for gender dysphoria should be regarded as being in in a special category requiring judicial oversight wherever there was less than complete unanimity. If necessary, the mother submitted that the Court of Appeal should depart from its recent decision in R (Bell) v. Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All ER 416.
The judge below had concluded that, while the Cass review might be significant, it did not justify a departure from the decision in Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All E.R. 416, [2021] 9 WLUK 157, in which it was held that treatment with puberty blockers should not be distinguished from the consideration of contraception in Gillick, and that questions of Gillick competence were for doctors, not the courts. Judd J held there was no realistic basis upon which to override the young person’s consent to treatment by a regulated provider and that there was no legitimate purpose in adjourning the case.
Three important issues in the consideration of these arguments. First, there was the issue of whether a child under 16 is competent to consent to or to refuse medical treatment (Gillick v. West Norfolk and Wisbech AHA [1986] AC 122 and more recently, Bell v. Tavistock. Secondly, there was the issue of whether a child (but also an adult) has mental capacity to consent to or to refuse medical treatment (see sections 1-6 of the Mental Capacity Act 2005). Thirdly, there was the issue of what is in a child’s best interests. This issue arises once the presumption as to the competence of a child over 16 to consent or refuse medical treatment is engaged (see section 8 of the Family Law Reform Act 1969 (FLRA 1969), which provides that a child over 16 can give consent in the same way as an adult, and no further consent is required from parents or guardians). Despite section 8, the court still retains the right to override consent given or withheld by a child over 16 on welfare or best interests grounds in very limited and well-defined circumstances (see Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64 (Re W)).
The Court of Appeal’s decision
Appeal allowed, and proceedings adjourned to allow for the completion of the child’s assessment by Gender Plus so that, if necessary, that assessment could be considered by the court.
There was sufficient current doubt as to what was proper and appropriate in this area that it would be a wiser course to keep the proceedings alive at least until Gender Plus’s assessment of the young person had been completed and can be considered, if necessary, by the court. Voss MR was not persuaded that the young person’s present unwillingness to share that assessment with his mother had any bearing on that approach. These were “legitimate purposes” requiring the case to be adjourned rather than dismissed at this stage.
“The court was simply being asked to keep open the possibility that it would, in the future, need to decide whether hormone treatment, to which the young person had consented, was or was not in his best interests. That would be a factual question that the court would be well equipped to decide on the basis of the principles explained in Re W and the subsequent cases that have applied it.” [para 43]
Reasoning behind the decision
Under Section 8 of the Family Law Reform Act 1969 a child over 16 could give or withhold consent to treatment in the same way as an adult without further consent from their parents or guardians, subject to the court’s right to override such consent on welfare or best interests grounds. That would only happen in limited and well-defined circumstances, W (A Minor) (Medical Treatment: Court’s Jurisdiction), Re [1993] Fam. 64. In this case, where there continued to be genuine disagreement between the parties, it was appropriate for the court to keep the proceedings open at least until the Gender Plus assessment was available. The regulatory landscape had changed considerably since Bell v Tavistock; moreover, puberty blockers had been banned in England and Wales since that case was decided. No special legal category contained the administration of hormone treatment.
Although the question of whether young people should be prescribed cross-sex hormones was factually different from other situations that the court had faced in the past, the applicable legal principles were clear. In the instant appeal, the court was being asked to keep open the possibility that it would, in future, need to decide whether hormone treatment to which the young person had consented was in his best interests. That would be a factual question that the court would be equipped to decide on the basis of the principles in W (A Minor). According to the mother, the circumstances in which it might become necessary included the event that the young person decided to accept treatment with cross-sex hormones in advance of their reaching adulthood. In that case, the mother might ask the court to declare whether such treatment was in their best interests in the factual circumstances then pertaining. It was appropriate to keep the proceedings open because, firstly, Gender Plus as a private provider could not satisfy all the recommendations made in the Cass review, including the recommendation that every case proposed for medical treatment should be considered by a national multi-disciplinary team; and, secondly, it was already clear that the government would be taking steps to implement the Cass review in ways that the court could not predict, but which might affect an appropriately objective view of where the young person’s best interests lay.
The judge below had doubted the young person’s ability to consider all the evidence about gender dysphoria and the treatment available in a balanced and unbiased way. In those circumstances, she should have accorded significantly more weight to the possibility of genuine future disagreement, the rapidly changing regulatory environment and the fact that the services provided by private hormone clinics were already in a different position from the same services provided by the NHS. It was understandable why she had thought that the young person’s current best interests favoured terminating the proceedings, particularly where there there was no question of the young person’s competence or capacity, but the wiser course would be to keep the current proceedings alive at least until Gender Plus’s assessment had been completed and could be considered by the court. Those were legitimate purposes requiring the case to be adjourned rather than dismissed at this stage
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