The following post examines two cases concerned with the transitioning of preschool children, both heard in the High Court, but which had very different outcomes. We wrote about both these cases at the time, here and here.
We are very grateful to Sarah Phillimore for writing this guest post which analyses the two cases from her professional perspective.You can read Sarah’s previous writings on this subject here and here.
Sarah Phillimore is a barrister who has specialised in public law proceedings since the year 2000. From 2014 she has been the site administrator of www.childprotectionresource.online. She has a keen interest in all matters relating to child protection and her perspective as a disabled person also causes her to question the prevailing trend of ‘self-identification.’
In whose best interests? The transitioning of preschool children
by Sarah Phillimore
This article will examine the law’s approach to the identification and securing of what is in a child’s best interests and in particular the approach the High Court has adopted to pre-school children who have apparently expressed a wish to change the sex they were identified as having at birth.
A ‘child’ is defined in the Children Act 1989 as any person between the ages of 0-18 years but I shall focus here on ‘pre-school’ which is the term I use to identify children aged 5 or younger.
If parents disagree with each other about how to bring up their child, or if a State is sufficiently worried about the parents’ care of a child then this dispute may come to the Family Court.
The fundamental principle guiding the family court is the welfare of the child. This is the paramount consideration in any matter relating to the child’s upbringing. The range of issues the court should think about when making such decisions is set out in the ‘welfare checklist’ at section 1(3) of the Children Act 1989.
The ‘age’ of a child is clearly an important matter, appearing twice on the checklist at item (a) – the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding) and explicitly at (d) his age, sex, background and any characteristics of his which the court considers relevant.
The other matters are physical, emotional and educational needs, the likely effect of a change of circumstances, any harm suffered or risk of harm, how capable are the adult carers of meeting the child’s needs and the range of powers available to the court.
Clearly a child of 4, when contrasted with a child of 16 is going to have very different welfare needs across every domain of their life – physical, emotional and sexual. This is explicitly recognised by the courts, which afford increasing respect to a child’s autonomy as the child’s age and understanding grow – see Gillick v West Norfolk and Wisbech Area Health Authority  AC 112.
But the courts have shown themselves to be reluctant to allow even older teenagers to refuse medical treatment that would prolong their lives – such as refusal of blood transfusions or heart transplants. Examining the relevant case law over the last 30 years shows clearly that a child’s ‘wishes and feelings’ are rarely determinative of any serious issue before the court – which reflects that their welfare is paramount, and a child is not always the best judge of what will promote his or her welfare in the medium and long term.
It is therefore very troubling to find the self identified legal adviser to the Mermaids charity writing an entire blog post about children without ever once referencing this highly material fact. https://transgender.law.blog/2019/03/25/when-should-a-childs-trans-identity-be-permitted-to-be-a-material-issue-in-a-family-case/
Why that is skated over becomes obvious at the conclusion:
….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.
This isn’t an attempt to blur the line between the child who is ‘Gillick competent’ and the child who is not. It’s a wish to erase it completely so that the wishes and feelings of a 4 year old carry the same currency as do those of a 16 year old. Anyone who has ever met a child or can remember being a child knows that this is nonsense.
The High Court has published at least 2 judgments in recent years which have considered the issue of preschool children transitioning to the opposite sex. That is probably the only factor each case has in common but I think the approach of the High Court Judge in each is a worrying indication of the speed with which attitudes have apparently shifted – from not simply recognising the existence of young children who may have gender dysphoria and offering appropriate support, but to actually encouraging very young children to transition.
J (A Minor), Re  EWHC 2430 (Fam) (21 October 2016) involved the mother who asserted that when her son was 4 years old he wanted to become a girl. He ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this 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’
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.
So in 2016 it was clear to see that the court was doing its job to protect children; undertaking a clear and 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.
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)  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.
This poses two immediate questions: how is it ‘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). It seems to be an inescapable fact that the evidence base to support any expert opinion that full social transition for a pre-school child is a ‘positive’ thing, simply cannot exist. 20 years ago, so far as I have been able to discern, this phenomenon was unknown. There is apparently no cohort of children who have 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. If I am wrong and that evidence does in fact exist, it did not appear to be before the court in either of the two cases I discuss here.
The second question is why the court did not give more critical appraisal to the highly unusual fact that here were two unrelated children in the same family, both apparently expressing a wish to change sex at a very young age. To what extent can the court be confident that this 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’.
I think there is a real problem here. No one is suggesting – yet – that 4 year olds should face surgery or medical intervention. But how confident are we that a child set on a path aged 4 is going to find it easy to leave that path when older? The ultimate destination is presumably some form of significant medical or surgical intervention and life long consequences. It is troubling to note that we appear to know more about the impact of puberty blockers on sheep than we do on children. I note the comments from the Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust:
We do know something of the effect of puberty blockers on the brain development of adolescent sheep however. Professor Neil Evans of the Institute of biodiversity in Glasgow reported impairments to several functions, including a sheep’s capacity to find its way through a maze, which persist after stopping puberty blockers. This raises questions about the possible neurological effects of puberty blockers on children’s psychological, social, sexual and cognitive development.
The consequences of a pathway of surgical and medical intervention are not merely physical of course. Stephen B Levine writing in 2018 in the journal of Sex and Marital Therapy ‘Informed consent for transgender patients’ reminds us that risk needs to be identified across three categories – the biological, social and psychological. Four specific risks arise in each category.
Biological risks include loss of reproductive capacity, impaired sexual response and shortened life expectancy. Insistence that biological sex can be changed cannot alter the possibility of sex based illness – such as prostate cancer. Social risks include emotional distancing from family members, and ‘a greatly diminished pool of people who are willing to sustain an intimate and loving relationship’. Significant psychological risks involve deflection of necessary personal development challenges, inauthenticity and demoralisation – when changing your body does not bring about the desired changes to the way you ‘feel’.
Of course, the existence of risk does not mean that one should never embark upon a risky endeavour. It may well be that the benefits outweigh the possible disbenefits to a significant degree and the risk is well worth taking. But that conclusion cannot be reached without clear eyed and dispassionate unpicking of the risks AND benefits.
The current ‘no debate’ platform and unquestioning acceptance of many for any child’s expressed wish to ‘transition’ are an abnegation of the serious ethical duties owed to children. They did not ask to be born. They are utterly dependent upon the adults around them to keep them alive in their first five years. Decisions made during that time may have consequences for the rest of their lives and those decisions therefore need to be based on evidence, not ideology.
I can think of no other area in a child’s life where a 4 year old would be permitted to make a decision of any significance at all. No 4 year old has the capacity to understand and process complex information and its ramifications. The ‘choices’ offered to 4 year olds are inevitably very limited and restricted because they lack both the physical and mental development which will enable them to stay alive without adult protection.
Why is it then that expressing a wish to change your sex is the one area that the courts now seem willing to bow before, without any proper examination of the welfare checklist?