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The Court of Appeal has handed down judgment today that the previous judgment to dismiss proceedings once a child turned 16 was wrong. In the case of Child Q, where the child wanted cross-sex hormones from private clinic Gender Plus but the mother opposed this treatment, proceedings will now be adjourned until the result of further assessment of the child by Gender Plus.

It is the first time the Court has agreed it has the power to override the consent to medical treatment of a child even when the child is 16 or over, has good mental health, is intelligent and has capacity. What is groundbreaking here is that the court has been willing to say that the court is still going to scrutinise whether the medical treatment is in the child’s best interests. It essentially changes the Family Law Reform Act by saying that a child’s right to consent or refuse treatment may be overridden by the courts under these circumstances, not only when it is an end of life issue or where the child has profound mental health issues.

We are very pleased that the Court has handed down a judgment that strengthens protections for a very vulnerable age group. It is a judgment that gives hope to the more cautious parents in disputes about their child’s progression to experimental and life-changing hormones.

This is a significant judgment not only for this family but for all parents who disagree about medical ‘transition’ for their child. The Court has opened a door for parents who want their child to wait before making a decision to undergo medical intervention that is unevidenced and irreversible. The judgment concedes that the courts have a role to play in this risky area of medicine and that this extra protection extends to children aged 16 and over who were previously left unprotected.

It is a judgment on the private clinics offering hormones outside the safeguards of the new NHS England service, and it recognises the Cass Review as the authority in this area.

This is the mother’s statement:

“Today’s judgement has left me feeling hopeful for my daughter’s future. I am so pleased that the court has carefully considered the evidence and made the best possible decision for her safety, and for the safety of all children who are struggling with their identity as they go through puberty.

The last two years have been painful, exhausting and terrifying. I miss my daughter horribly and can only hope that, one day, she will realise how very hard her Mum has worked to keep her safe.

I would like to offer my heartfelt thanks to my wonderful legal team, Our Duty UK, Transgender Trend and all the wonderful people who have supported my fight to protect my beautiful girl. There is still a long way to go before all our children are safe, but the tide has turned. One day, I hope that children will be encouraged to feel happy and comfortable in their own bodies and realise that they are perfect, just as they are.”

We are very grateful to Ms A, the mother in this case, for going through the gruelling court process to protect her daughter, and by doing so achieving another step forward in the legal protection of all children. Previous to this case, the cautious, more thoughtful parent in a dispute had no recourse to the law once their child turned 16.

Of all the adults in Child Q’s life, it is only the mother who is thinking about her future and considering the life-long harms of the medical intervention she seeks. Although undoubtedly well-meaning, the other adults responsible for her care – the father, the step-mother and the Guardian (a senior social worker appointed by the courts) – have been focused on the here and now: the strength of the child’s conviction, the distress she may experience if denied the treatment and the child’s relative intelligence and maturity.

The judgment highlighted the first Judge’s comment that

I am not sure I share the Guardian’s confidence that [the young person] is able to consider all the evidence about gender dysphoria and the treatment available in a balanced and unbiased way (something that is beyond many adults).

No matter how mature the Guardian judged Child Q to be, it is the life-stage, not relative maturity, that is the relevant factor in a case such as this. The teenage brain is risk-taking, impulsive and not yet equipped to fully weigh up the future consequences of decisions taken during the maelstrom of adolescence. Can a child really foresee how they will feel as the adult who has to live for the rest of their lives with the serious consequences of a decision made in adolescence?

The adolescent in this case will need sensitive support to manage the continuing uncertainty. But this should not cloud our judgment or absolve us of responsibility as adults to protect the long-term health of a child by saying no to something we know will harm their bodies and cannot be reversed.

It is the parent who considers the long-term who may have to sacrifice the most precious thing – the current relationship with the child – to protect the child’s best interests and fight for their future. Every mother will understand the level of courage this takes. We hope that this child will grow to understand her mother’s courage in the future and be grateful for it.

The judgment

The judgment, inexplicably in our view, falls short of treating medical transition as a ‘special category’ of treatment.

Point 19 is concerning in its suggestion that a report that took four years and is globally recognised as the most researched, comprehensive and detailed report on gender treatment for minors to date is ‘controversial.’

The Cass Review has received wide publicity. Like the subjects it covers, it is controversial. Strongly held views have been expressed on both sides of the debate. Nothing I say in this judgment should be construed as expressing support for one side or the other (19).

It is only controversial in the sense that trans activists have reacted to it with fury. ‘Both siding’ this reality in a court judgment only validates the position of political and ideological actors. Along with NHS England, the Cass Review is accepted by both major political parties in the UK, which should have put paid to the politicised nature of the debate and brought us back to the real issue: the evidence base and the safety of children.

Senior judges should not still be afraid to be seen to ‘take sides’ as this statement suggests. The impartiality of the courts when it comes to controversial political debates should go without saying. Following the evidence is not taking sides.

Given the reliance on the Cass Review’s findings in this case, it is only the above statement that is a possible explanation for the court passing the buck in terms of identifying medical transition of minors as a special category. If unevidenced ‘gender affirming’ medical treatment does not fit the criteria it’s hard to imagine what would.

Notwithstanding point 19, the court has considered seriously the recommendations of the Cass Review in evidence, quoting as an example from p. 13 “the reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress” and citing recommendations 8, 9 and 26 as having particular relevance.

The judgment elsewhere accepts the Cass Review as the authority in relation to the service offered by private clinics.

First, Gender Plus, as a private provider, could not satisfy all the recommendations made in the Cass Review, including, in particular, the recommendation that every case proposed for medical treatment should be considered by a national multi-disciplinary team (7).

As I have already said, I have decided that the judge was wrong to refuse to adjourn the mother’s application in the unusual circumstances of this case. The judge did not, I think, place enough weight on the rapidly changing regulatory environment and the situation of private providers like Gender Plus in the light of the recommendations made by the Cass Review (38).

It is impossible now to predict the outcome of Gender Plus’s assessment (we were told it is in progress, if not complete), nor the consequences that might or might not occur as a result of a potential non-compliance by the private provider with the good practice suggested by Dr Cass (39).

The judgment shows that the Cass Review has led to a higher degree of scrutiny in the courts and that the service offered by private providers like Gender Plus must be judged in comparison to it.

The mother’s solicitor, Paul Conrathe, said

“My client is delighted with the decision of the Court of Appeal today. It is a significant ruling that acknowledges the risks of gender treatment delivered in the private sector where the recommendations of the Cass Review cannot be complied with. Despite my client’s child being 16 years old, intelligent and not having any mental health problems the Court is concerned that judicial scrutiny is necessary to ensure hormonal treatment is in their best interests. This decision marks a significant step forward in the Court’s consideration of medical disputes which until now have mainly involved end of life decisions or young people with very poor mental health. It can no longer be assumed that just because a young person is 16 years old, intelligent and in good health that their decision to proceed with cross sex hormones is the end of the matter. 

My client will now be pursuing her case in the High Court to protect her child from taking a treatment that will have irreversible lifelong consequences. 

This case also raised concerns about the many children who are receiving treatment in the private sector or may do so in the future. The Court was asked to take a protective role and require any treatment being offered in the private sector to require court approval. It refused to offer that protection. As it did in the Keira Bell litigation the Court surprisingly did not consider cross sex hormones or puberty blockers to be in any special category that required extra judicial protection. The Court stated that such protective measures were for regulators and Government. With the regulator, the Care Quality Commission, deemed unfit for purpose by a recent independent review, it is for Wes Streeting to step up and put in place protections for vulnerable children receiving powerful irreversible experimental treatments in the private sector. The profit motive, ideological zeal of clinicians and exceptionally poor evidence base for this treatment mean there is a desperate need for urgent regulatory protection in the private sector.”

Context of the case

The case has raised again the issue central to the successful appeal by the Tavistock to the Keira Bell Judicial Review: the judgment that medical decisions were not for the courts but for the medical profession to decide. Under normal circumstances this would be justified, but these are not normal circumstances. Public trust in both the doctors and the regulators has been eroded as ideology has overtaken evidence-based care and the medical profession has failed to safeguard children from harm.

Subsequent to the Bell Appeal judgment, the Tavistock GIDS was rated Inadequate by the Care Quality Commission (CQC) and closed down. But the CQC had rated the GIDS as Good in 2016 when all the same problems were apparent. Following the Cass Review recommendations NHS England (NHSE) has now developed new services, in line with normal standards of paediatric healthcare.

The Health Secretary has extended the ban on the provision of puberty blockers by private clinics indefinitely following the emergency ban by the previous government. But private providers are still prescribing cross-sex hormones (CSH) to minors outside the safeguards of the new NHSE gender hubs. And the CQC has registered the private clinic in the Child Q case, Gender Plus, which is run by ex-GIDS clinicians who defend the GIDS approach and oppose Cass.

Sue Evans, the original GIDS whistleblower, has been granted permission to bring a judicial review against the CQC for licensing a clinic that provides such controversial treatment. The CQC has subsequently rated Gender Plus ‘Outstanding.’

This is against a backdrop of serious concerns about the performance of the CQC leading to a government investigation this year. The Dept of Health and Social Care reported that an independent review of the Care Quality Commission (CQC) had identified ‘significant internal failings’ which is hampering the CQC’s ability to identify poor performance.

Background

The mother in the Child Q case applied to the Family Court for a prohibited steps order to prevent her teenage daughter from receiving medical treatment outside the NHS, in opposition to the position of the father who fully supported social and medical transition of the child.

The Court granted an interim prohibited steps order up to the age of sixteen. At a Court hearing in April the mother sought to extend the Order until the age of 18 but was not granted the extension. The mother appealed and in August the Court of Appeal granted permission to proceed with an appeal for the following reasons:

“There is a compelling reason for an appeal to be heard, in particular as to whether a court could, or ever should, override the decision of a young person who is over 16 and has capacity to consent to treatment which is being offered by a treating doctor in the UK in circumstances where the treatment which is being offered privately, 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.”

Subsequently the Appeal case was selected to be live-streamed. The Civil Appeals Office said:

“Certain proceedings of the Court of Appeal’s Civil Division are now live-streamed to increase open justice and improve public access and understanding of the justice system. This means that high profile and legally significant cases in the court would be made available in the way that UK Supreme Court hearings habitually are.”

To watch the recording of the livestream from the Court of Appeal scroll down to the videos Re: Q here.

And please continue to support and share Ms. A’s crowdfunder here.

This is a significant win but the progress to fully protect children from being fast-tracked onto an unevidenced and harmful ‘gender affirming’ medical pathway is unacceptably slow. It is now up to the government to provide that protection by including cross-sex hormones in the ban on private prescriptions for the treatment of gender dysphoria in the UK for under 18s.

Wes Streeting has said “the current prescribing and care pathway for gender dysphoria and incongruence presents an unacceptable safety risk for children and young people” and that the government will “follow the expert advice.” The Court of Appeal has today made it abundantly clear that this commitment must include the private provision of cross-sex hormones.