Re: Blaine

[2017] FamCA 647

FAMILY COURT OF AUSTRALIA

RE: BLAINE [2017] FamCA 647

FAMILY LAW – CHILDREN – Where the parents sought a declaration that their child is competent to consent to the administration of Phase 2 treatment for Gender Dysphoria – Where Phase 1 treatment commenced 18 months prior to hearing – Where the child has explored the risks of Phase 2 treatment with those that best understand it including appropriately qualified practitioners – Concluded the child is Gillick competent and can authorise his own phase 2 treatment – Declared that the child is competent to consent to Phase 2 treatment – Order made suppressing the identities of the parties and the publication of any information that would identify them

Re: Jamie (2013) FLC 93-547
Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218

APPLICANTS: The Mother and The Father

FILE NUMBER: By Court order File number is suppressed

DATE DELIVERED: 23 August 2017

JUDGMENT OF: Cleary J

HEARING DATE: 23 August 2017

REPRESENTATION

By Court Order the solicitor’s names have been suppressed

Orders

1. That the name of the child Blaine (formerly …) born … 2000 (“the child”) and the names of all others involved in this matter not be released.

2. That the child is declared to be competent (Gillick Competent) to consent to ‘Phase 2’ treatment being the administration of hormonal medication to initiate the secondary sexual characteristics and appearance of the male sex.

3. That the full name of Blaine, his family members, his medical practitioners, his educational institution, this Court’s file number and any other fact or matter that may identify Blaine shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover sheets excluding the registry, file number and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary Order of a judge, it being noted that each party shall be handed one full copy of these Orders with the relevant details included, to enable their execution, and one cover sheet of Reasons for Judgment that includes the file number and lawyers’ names.

4. That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.

5. That to the extent that the exception provided for in s 121(9)(g) of the Family Law Act 1975 (Cth) or the other provisions of that subsection do not otherwise authorise same, the Applicants shall be at liberty to provide to all persons involved with the said child’s treatment and welfare a copy of these Orders and Reasons for Judgment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Blaine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER:

The Mother

Applicant

And

The Father

Applicant

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application which was filed on 8 August 2017 by the parents of Blaine, who was born in 2000.  Blaine is now 17 years old. 

2. There is no contradictor to this application.  The Department of Family and Community Services for New South Wales (“the Department”) was served with the applications and an affidavit of service has been received and marked as exhibit 1. 

3. Advice has been received from a senior solicitor of the Department that the Secretary of the Department does not intend to intervene in these proceedings.  That advice is marked as exhibit 2.

4. The documents relied on in support of the application are:

   a)The affidavit of  The Mother;

   b)The affidavit of  The Father;

   c)The affidavit of Dr E, the child and family psychiatrist who has prepared a report;  and

   d)The affidavit of Professor T who is a paediatric endocrinologist and who is involved in the care and supervision of Blaine. 

   All those affidavits were filed on 8 August 2017. 

5. The orders sought in the application are in cascading alternate forms which appropriately acknowledge the current state of the law.

6. On the authority of the High Court decision in Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218 and the decision of the Full Court of the Family Court in Re: Jamie (2013) FLC 93-547, this issue requires the Court to determine Gillick competence.  The question being, does Blaine have sufficient understanding of the treatment and procedures of phase 2 treatment proposed to give a consent valid in law?  If the Court so determines, that is the end of the matter.

7. If not, then the Court must consider whether to authorise parents to consent to phase 2 treatment.  In making that assessment, the Court must consider the best interests of the child as the paramount consideration.  The most persuasive relevant factor would be the views of the child in accordance with his age and maturity. 

8. So, accordingly, the orders are sought first in the form of a declaration that the child has capacity to make decisions about phase 2 treatment or, in the alternative, that his parents be authorised to consent to the administration of the treatment on his behalf. 

Key Evidence

1. Blaine was born with the physical characteristics of a female.  He was born into a family with two parents and one older sibling. 

2. He began identifying as male, at least by about eight years, in his clothes and attitude. 

3. At age 11, coming into puberty, his mother described his mental health as declining.  He has always found aspects of puberty extremely stressful. 

4. By age 16, he had changed his name to Blaine and he is now 17 years and four months. 

5. Phase 1 treatment began about 18 months ago.  Now, to the fullest extent possible, Blaine dresses as and identifies as a young man.  He feels held back in his life by the nature of his body and mis-gender identification of him by others. 

6. In 2012, Blaine began seeing a psychologist.  He was subsequently diagnosed with gender identify dysphoria and, hence, he commenced phase 1 treatment in January 2016 which was hormone suppression. 

7. On 13 July 2016, Blaine was reviewed by Professor T.  He was experiencing tiredness and lethargy as a result of phase 1 treatment but his mood and behaviour had significantly improved.  I take that to be a reference to his feeling happier. 

8. There was discussion then about phase 2 treatment, cross-gender hormone therapy.  The legal proceedings required were also discussed and the risks associated with the therapy.  Cross-gender hormone therapy is irreversible.  As Professor T says: 

   There are no alternative or less invasive treatments available that mimic normal masculinisation at puberty. 

9. Professor T relied on the assessment of Dr E and also on her own discussions with Blaine and her assessment of Blaine’s mother as supportive of transition to male gender.

10. Blaine’s father was reported to be likewise supportive, through the mother to Professor T, and that support has been confirmed in an affidavit of Blaine’s father where he states that he is entirely supportive of treatments and Blaine’s decision to undergo phase 2 treatment.[1] 

    [1]Father’s affidavit filed 4/08/2017, par 2

Does Blaine have the capacity to consent to his own phase 2 medical treatment? 

1. With the support of his parents, he consented to phase 1 treatment.  Now he has their support to make his own decision.  Anticipating that it will be to go ahead with phase 2 treatment, they both support that decision. 

2. Dr E assesses Blaine as capable of making his own decision.  She says this: 

   I have been working in this area for three years.  I am a qualified child and adolescent psychiatrist.  I feel that [Blaine] is capable of making an informed decision about the treatment of testosterone.  I spent a session with him on 15 May exploring effects and side effects, as well as reversible and irreversible changes as a result of testosterone treatment.  I also gave them ([Blaine] and his family) material to read and encouraged questions.  [Blaine] was very knowledgeable about this and it was clearly a topic he had been reading up about. 

3. Dr E went on to say that in her view, it was in Blaine’s best interest to have phase 2 treatment, as evidenced by his ongoing distress from gender dysphoria with the likely negative long-term impacts of non-treatment, the non-existence of alternative treatment, and the necessity of phase 2 treatment for Blaine’s long-term health and wellbeing. 

4. Blaine wishes to start treatment.  In my view, he understands what he is asking for.  He has explored the risks with those who can help him best understand it, particularly; Professor T and Dr E, his own parents and his own research.  He has explored the risks around fertility. 

5. The evidence suggests that he looks forward to eliminating the outward signs of his body which are inconsistent with his own sense of self.

6. He has suffered in the past, particularly around menstruation and breast development.  Phase 2 treatment will bring male characteristics:  facial hair, body development.  He is 17 and the evidence suggests that phase 2 treatment cannot start too soon for his liking. 

7. Blaine has access to both his parents who are fully informed about what phase 2 treatment entails and are very much supportive of him.  I am satisfied on the evidence of the experts and of Blaine’s parents that he is Gillick competent and can authorise his own phase 2 treatment. 

8. Orders are made accordingly with orders supporting privacy around these proceedings with the exception of release to treating practitioners of these orders and reasons for judgment.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 23 August 2017.

Associate: 

Date:  24 August 2017