Re: Flynn

[2015] FamCA 629

FAMILY COURT OF AUSTRALIA

RE: FLYNN [2015] FamCA 629

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – where the applicants are parents of a child with Gender Identity Dysphoria – where the applicant seeks a declaration that the child is competent to authorise stage two treatment – where the child is 16 years of age – where the child identifies as a female – where the child has undergone stage one treatment – where the child’s treating medical experts and parents support the child commencing stage two treatment –whether the child is Gillick competent – whether the treatment is in the child’s best interests – whether court authorisation is appropriate in determining competency – where the child has significant comorbidities including anxiety, depression and social isolation – finding that the child is competent to consent to stage two treatment.

Family Law Act1975 (Cth), s 60CC(2)-(3), 64B(2)(i), 67ZC(1)-(2), s 69ZN(3)-(7)

Gillick v West Norfolk and Wisbech Area Health Authority[1986] AC 112
P v P (1994) 181 CLR 583
Re: Isaac (2014) FamCA 1134
Re: Jamie (2013) FLC 93-547
Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218
ZP v PS (1994) 181 CLR 639

APPLICANTS:	The Father and the Mother
RESPONDENT:

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 31 July 2015

JUDGMENT OF: Berman J

HEARING DATE: 28 July 2015

REPRESENTATION

By Court Order the names of counsel and solicitors have been suppressed

UPON NOTING the following:-

(a)That the Father and the Mother (“the applicant parents”) consent to the orders.

(b)That the treatment described in the Application is for gender identity dysphoria and will involve principally the administering of oestradiol valerate, subcutaneous injections of gonadotrophin releasing hormone analogue namely, Zoladex and Spironolactone and any other hormone and/or psychiatric or psychological treatment as may be recognised by Flynn’s treating paediatrician or psychiatrist from time to time.

Orders

1. That the Court is satisfied that the child … born … 1999 (“Flynn”) is competent to consent to oestrogen hormone therapy treatment and is able to make her own decision in relation to that treatment.

2. That the applicant parents be at liberty to provide a copy of the un-anonymised orders and un-anonymised Reasons for Judgment to all persons involved with Flynn’s treatment.

3. That the following details shall not be published in any way:

   (a)       the court’s file number;

   (b)       any Reasons for Judgment other than the anonymised version;

   (c)       the orders of the court other than those anonymised;

   (d)that no person shall be permitted to search the court file without first obtaining leave of a Judge of the Family Court of Australia; and

   (e)that other than anonymised Reasons for Judgment and order, no documents shall be released by the court to non-parties without leave of a Judge SAVE as set out herewith.

4. That the Initiating Application filed 23 July 2015 is dismissed.

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

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order file number is dismissed

The Father and the Mother

Applicant Parents

REASONS FOR JUDGMENT

INTRODUCTION

1. By Initiating Application filed 23 July 2015, the Father and the Mother (“the applicant parents”) seek a determination from the Court that the child Flynn born in 1999 is competent to consent to a medical procedure and the related ongoing treatment being cross sex hormone treatment for gender identity dysphoria.

2. Flynn is currently 16 years of age and is aware of the proceedings and is supportive of the orders being sought by her parents.

3. Perhaps unusually, I was prepared to hear and determine the matter on the first return date being 28 July 2015.

4. The applicant parents were represented by their solicitor who requested that the proceedings not be adjourned but rather that the application be heard and determined to finality.  Consideration was given as to whether an opportunity should be afforded to a contradictor to intervene or be heard.

5. I have given careful consideration to the evidence presented from each of the applicant parents and from Associate Professor P who is a consultant child and adolescent psychiatrist with significant experience in the treatment and management of adolescence dealing with gender identity issues and Dr T who is Flynn’s paediatrician and a specialist adolescent physician in the gender dysphoria service unit of the hospital to which Flynn attends.

6. The evidence to be relied upon is comprehensive.  The history as presented by the parents is instructive and is not in conflict with the expert medical evidence presented.  Specifically, the consensus is that notwithstanding the proceedings have been brought by Flynn’s parents, nonetheless it is agreed that the desire to undertake the proposed medical treatment is primarily at the instigation of the child.

7. I did not consider that the appointment of an Independent Children’s Lawyer (ICL) would present anything further to the Court than the corroboration of the child’s wishes which is not in doubt. It is not a matter that I consider raises child protection issues and accordingly I do not consider that the relevant child protection department or authority have any need to be involved in the proceedings or to be heard.  Moreover, it is not my intention that there should be a declaration as to “Gillick” competency but rather I should find that Flynn is competent to provide the necessary consents to her requested treatment.

8. Accordingly, I am mindful that in attempting to achieve the main purpose of the Family Law Rules 2004 (Cth), there are cases where it is appropriate to dispense with compliance with the Rules supported by considerations that to do so would be in the administration of justice. To the extent that it is necessary, I dispense with the rules that would require service of the application on other potentially interested parties.

JURISDICTION

1. The application is brought pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. Accordingly, I have regard to the principles for conducting child related proceedings as set out in s 69ZN.  Simply expressed, the five principles (s 69ZN(3) - (7)) exhort the court to consider the needs of the child and the impact that the conduct of the proceedings may have on the child.  The court should strive to actively direct control and manage the proceedings and they should be conducted with the focus being on the child and the child’s safety.  Finally where appropriate, the proceedings should be conducted without undue delay and with as little formality and legal technicality as is reasonable in all the circumstances.

3. Section 67ZC provides the necessary jurisdiction to make orders in respect of the welfare of children:-

   (1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.

   (2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

4. The “welfare” jurisdiction confers upon this court the powers of “parens patriae”.  The extent and scope of the “welfare power” was considered by the High Court in Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218 (Marion’s Case); P v P (1994) 181 CLR 583; ZP v PS (1994) 181 CLR 639 sub nom Re PS; Exparte ZP.

5. In the exercise of this power the section requires that the best interests of the child be the paramount consideration.

6. In Re: Jamie (2013) FLC 93-547 the Full Court considered the provision of treatment for gender dysphoria both in terms of stage one and stage two as a determination that could be made under s 67ZC.

7. In Re Isaac (2014) FamCA 1134 Cronin J considered an application by a child seeking a declaration that he was “Gillick” competent to consent to treatment for gender identity dysphoria in circumstances where the child’s parents were opposed to the medical treatment. His Honour considered that it was open to the court to make a parenting order under s 64B(2)(i) of the Act namely:-

   Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

8. His Honour also considered more broadly that:-

   [39]If the court has, as I accept it does, the power to give parental responsibility for a particular issue to any person, including persons other than the parents, it must follow that in respect of certain issues, the court has the power to give parental responsibility to the child himself or herself.

THE APPLICATION

1. The only orders sought by the applicants are as follows:-

   (1)That the name of the child and all others involved in this matter not be released.

   (2)That the child be declared “Gillick” competent to consent to oestrogen hormone therapy treatment.

   (3)As an alternative that the applicant mother and applicant father as the legal guardians of the child, be authorised to consent to the following special medical procedure on behalf of the child.

2. The applicants rely upon the following documents:-

   ·Initiating Application filed 23 July 2015

   ·Affidavit of the child’s mother filed 23 July 2015

   ·Affidavit of the child’s father filed 23 July 2015

   ·Affidavit of Associate Professor P filed 23 July 2015

   ·Affidavit of Dr T filed 23 July 2015

“GILLICK” COMPETENCE

1. The gravamen of the orders sought by the applicants is expressed in order 5 namely, “that the child be declared ‘Gillick’ competent to consent to oestrogen hormone therapy treatment”.

2. The reference to “Gillick” competence derives from a decision of the House of Lords in Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 (“Gillick”). In “Gillick” the mother of five girls under the age of 16 years objected to a directive given to doctors which would have the effect of authorising them to provide contraceptive advice and treatment (contraception) to girls under the age of 16 years without parental consent.  The decision faced by the court was to consider whether parents had an “exclusive right” to decide issues of medical treatment in respect of their children. Speaking for the court, Lord Scarman rejected the proposition that an appropriate or competent decision was a function of age.  His Honour said:-

   If the law should impose upon the process of “growing up” fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism…

3. In Marion’s case at [237-8] the court held:-

   [237]A minor is, according to this principle, capable of giving informed consent when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.

   [238]This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology. It should be followed in this country as part of the common law.

4. Accordingly, if the court considers that a child has an appropriate level of maturity and understanding and is therefore able to give informed consent to a therapeutic medical procedure, then the court has no jurisdiction to interfere.

5. The position was summarised in Re: Jamie by Bryant CJ at [140]:-

   I summarise the decision that I have reached in relation to these matters:-

   (a)Stage one of the treatment of the medical condition known as childhood gender identity disorder is not a medical procedure or treatment which falls within the class of cases described in Marion’s case which attract the jurisdiction of the Family Court of Australia under section 67ZC of the Act and require court authorisation.

   (b)If there is a dispute about whether treatment should be provided (in respect of either stage one or stage two), and what form treatment should take, it is appropriate for this to be determined by the court under section 67ZC.

   (c)In relation to stage two treatment, as it is presently described, court authorisation for parental consent will remain appropriate unless the child concerned is Gillick competent.

   (d)If the child is Gillick competent, then the child can consent to the treatment and no court authorisation is required, absent any controversy.

   (e)The question of whether a child is Gillick competent, even when the treating doctors and the parents agree, is a matter to be determined by the court;

   (f)If there is a dispute between the parents, child and treating medical practitioners, or any of them, regarding the treatment and/or whether or not the child is Gillick competent, the court should make an assessment about whether to authorise stage two having regard to the best interests of the child as the paramount consideration.  In making the assessment the court should give significant weight to the views of the child in accordance with his or her age or maturity.

6. Whilst not requiring a resolution, it is interesting to ponder on whether the Family Court should play any role in determining what should be done about a young person’s gender or their preference.  The underlying rationale is that gender dysphoria is in and of itself a medical disorder, illness or condition.  It may very well be nothing more than sexual preference which should not involve the court, particularly in circumstances where there is no opposition or resistance to the proposed course of treatment or procedure.

7. In a recent article published by Felicity Bell in 2015 entitled “Children with gender dysphoria and the jurisdiction of the Family Court” the author argues that the extension of the ratio in the Marion’s case to children with gender dysphoria has had practical implications namely, placing a time consuming, expensive and stressful hurdle in the path of young people who are seeking treatment.

8. In a paper published by Justice Strickland in 2014 entitled “To treat or not to treat; legal responses to transgender young people”,  his Honour considers that if Australia had a human rights instrument, arguably the Full Court in Re:Jamie may have found that stage two treatment for gender dysphoria was not a procedure requiring court authorisation.  At page 62 he says:-

   This would be particularly so if such an instrument contained articles directed towards concepts such as the right to liberty and security of the person, the right of identity, the right to autonomy and personal legal rights, and the right to equal protection and equal benefit of law. 

   That is not necessarily because these rights have been given precedence in litigation around young people and medical treatment in those jurisdictions that have a bill or charter of rights, but more because of the significance right-based arguments assume in proceedings involving medical treatment for young people.

9. At page 72 -73 he says:-

   Re:Jamie is however a decision that was made at a particular point in time and at a particular stage in the development of legal principle and medical science.  Re: Jamie is likely to act as a spur for further proceedings being initiated which challenge the boundaries of the current state of the law governing young people and medical treatment.  Accordingly, there is every reason for confidence that the jurisprudence will develop further, and develop rapidly, following Re: Jamie.

10. Finally, at page 75 his Honour opines:-

    Thus unless Re: Jamie was overturned or distinguished, a single Judge would need to find that the risk involved in undertaking the treatment, and the consequences of undertaking the treatment, were outweighed by the treatment’s therapeutic benefit.  The Full Court’s reasoning in Re: Jamie suggests that such a finding would be more likely to occur where there was evidence that the irreversible effects of cross-hormone treatment could be mitigated, as the reverse ability of Stage 2 treatment, or lack thereof, was given particular prominence in each of the three judgments.

PROPOSED TREATMENT

1. It is proposed that Flynn would commence cross sex hormone treatment with oestrogen in order to minimise masculinisation and to facilitate feminisation of her body including breast development.

EVIDENCE

The Child’s Mother

1. The child’s parents married in 1998 and separated in April 2009.  There are two children of the relationship.  Flynn has a younger sister D born in 2002.  From an early age, her mother observed her to be a “sensitive new age guy” who appeared to have a caring and empathetic nature.

2. Flynn showed little interest in team sport or play that involved “rough and tumble” but rather seemed to prefer her own company.

3. She became reluctant to leave the home and would attend school with some anxiety.  It was the mother’s observations that Flynn would become more withdrawn and notwithstanding the early intervention of a school counsellor and other involvement, the child remained anxious and depressed.

4. Unfortunately Flynn commenced to self-harm with a rapid escalation to the child having suicidal thoughts which ultimately manifested in suicidal ideation being openly expressed at her school.

5. Following assistance from various public authorities, the child revealed that it was not her “sexuality” that was an issue but rather her “gender”. The child’s enrolment and contact with a gender dysphoria clinic at the X Hospital was revealing.  A decision was made by Flynn and supported by her parents that she would embark upon the transition from male to female.  Puberty blockers were administered as the first stage of that transition and in respect of the stage two administration of necessary hormone treatment, Flynn’s mother states at paragraph [20] and [21]:-

   [20]As parents we believe this to be the best way forward.  [Flynn] is certain of who she wants to be and we support her 100 per cent.

   [21]We need to help [Flynn] become the person that she so desperately needs to be.  The only thing as parents we would wish for our children is for them to be happy and healthy individuals.  By beginning hormone treatment as soon as possible we can help [Flynn] achieve this health and happiness.

The Child’s Father

1. The father made the same observations as the mother. 

2. It was his observation that by high school Flynn had almost no friends and was beginning to withdraw.

3. The child’s self-esteem was not assisted by the well-meaning pressure placed upon the child to engage in “male orientated activities”.

4. Flynn began to experience and be upset and affected by homophobic and misogynistic remarks, and she began to retreat and withdraw from social engagement.  It is the father’s observation that the child had become a recluse and her only significant interest was to connect and make contact with other gender disaffected people.

5. Following the child’s revelation that she considered herself to be female rather than male, Flynn was enrolled in a school which had as its mission statement a commitment to tolerance for children who were not able to easily fit in.

6. The father agreed with the proposed medical treatment and therefore by necessary implication, this application is very much reflective of the child’s wishes.

Dr T

1. Dr T is head of the Gender Dysphoria Service at the hospital where it is proposed that Flynn will continue her treatment.  There is no challenge to the professional qualifications of this witness and I accept that Dr T is pre-eminent in respect of the treatment of children and adolescence presenting with gender identity issues.

2. It is proposed that the child will be treated with oestrogen in order to induce feminisation of her body.  The doctor confirms that Flynn currently undertakes stage one (puberty blocking) treatment which involves subcutaneous injections of the gonadotrophin releasing hormone analogue, Zoladex.

1. The stage two treatment will involve the administering of oestradiol valerate with a transfer to spironolactone in order to block the endogenous testosterone effect on the child’s body.

2. The treatment will be monitored over a period of two years until it is anticipated that the appropriate adult dose will be determined.

3. Dr T has seen Flynn on four occasions and apart from the taking of a medical history, there has also been psychosocial questioning.

4. The treatment for gender dysphoria involves a multidisciplinary team of doctors including psychiatric, endocrinology and paediatric subspecialties in adolescent medication.

5. The effect of oestrogen on the child will result in the following:-

   ·Breast development

   ·Decreased facial hair

   ·Increased body fat

   ·Decrease in muscle mass and strength

   ·Decreased fertility with decreased sperm production and function

   ·Social benefit of greater aesthetic consistent with female gender identity

   ·Psychological benefit including decreased depression and anxiety associated with transition

6. If the treatment is not carried out and Flynn is denied oestrogen treatment, the effect will be:-

   ·The child would remain masculine in appearance

   ·The child would be denied therapeutic treatment for gender dysphoria

   ·Risk of depression and anxiety

   ·Significant risk of the child engaging in self harm and death via suicide (suicidal ideation)

   ·The potential for the child to assess oestrogen illegally and therefore to self-administer without the ability to monitor for complications.

7. In terms of assessing the risk to the child in the short term, the medication will induce feminising changes.  In terms of longer term risks, they include:-

   ·Chronic problems with veins in the legs

   ·Heart disease

   ·Risk of blood clotting to the lungs

   ·Stroke

   ·Type two Diabetes

   ·Liver disease

   ·High cholesterol and high blood pressure

   ·Gall stones

   ·Risk of headaches or migraines

   ·Potential for non-cancerous tumour of the pituitary gland.

8. Dr T considers that in the circumstances in which the child finds herself, the treatment, together with its attendant benefits and risks, is necessary for the child’s welfare.  It is an important consideration that the child’s mental health has been adversely affected by her gender identity issues and it is essential that real and significant weight be given to decreasing the risk to the child of self-harm and death by suicide.  As is recorded in the report:-

   Research consistently demonstrates that denial of support and medical treatment for children and adolescents with gender dysphoria carries with it a fifty per cent risk of self-harm and a thirty per cent risk of attempted suicide during adolescence.  Access to the treatment proposed for the [child] has been shown to decrease anxiety, depression, self-harm and suicide.

9. The doctor considers that Flynn is very capable of making an informed decision about the commencement of her treatment.  There is no suggestion that she is in any way poorly informed and it is to be noted that when the child attended CAMHS with depression and suicidal thoughts, it was at this stage that she first expressed her gender identity conflict and that she identified as a female.

10. It is also notable that upon the commencement of puberty blockers and the acknowledgment by the child that she had made the first step along the pathway to transition, her mental health and emotional lability showed significant improvement.

11. Dr T was satisfied that:-

    [Flynn] has been able to understand these discussions (complications of the medication and consequences to her fertility) and has asked appropriate question.  [Flynn’s] behaviour has been consistent with that of someone who understands the long term consequences and this was evident with her depositing sperm for long-terms storage at the [hospital] prior to commencement of puberty blockers.  I feel that she is informed on the treatment planned and the risks involved.

12. Importantly, the doctor records that the child has been “the driving force for accessing treatment.  Her parents, although always supportive of [Flynn] have not been the ones to initiate treatment discussions and plans for medical intervention”.

Associate Professor P

1. Associate Professor P has seen the child on five occasions since meeting the applicant parents and the child in July 2014.

2. The Associate Professor has been involved in adolescent psychiatry for 34 years and has considerable experience in the area of children and adolescent gender identity disorders having seen over 100 children and adolescents.

3. Importantly the Associate Professor acknowledges that he is part of an inter-departmental psychiatric adolescent medicine endocrinology and gynaecological group that meets regularly in order to discuss childhood and adolescent gender identity issues.

4. There is no challenge to the expertise of the Associate Professor.

5. It is recorded that the child has identified to her family and others as a female over the last 18 months.  It is noted that the child experienced significant difficulties at school, felt isolated and became withdrawn.  To a large degree, some of these more difficult experiences have largely ameliorated upon the child attending her current school which better caters for children who do not conveniently and easily fit within the general school population.

6. The investigation and exploration of the child’s insight was ascertained via a rigorous questionnaire and interview process.  The investigation utilised targeted gender identity standardised tests summarised by the child’s attitude that:-

   She certainly does not feel satisfied being a boy and that she knows she is a girl.  The [child] feels that she needs to have a female body to match her deep belief that she is a girl.  She says that she never feels she is a boy, but sees herself as a girl, a transgendered person.

7. The child expressed a clear wish to have a “feminine body” and to attain a female appearance by the development of breast tissue.  Whilst it is not her intention at present, the child has contemplated sex re-assignment surgery.

8. On 17 November 2014, Flynn was also seen by a second child and adolescent psychiatrist with a determination that she met the criteria for a diagnosis of gender dysphoria.

9. The recommendation of the Associate Professor is that the child commence cross sex hormone treatment with oestrogen.

10. Whilst not a matter of contention, the Associate Professor sets out the relevant criteria for gender dysphoria in adolescence and adults and is satisfied that the child meets the criteria.

11. Whilst Dr T considered the risks to the child from the procedure, I place weight on the opinion of the Associate Professor that if the procedure is not carried out the child runs the very high risk of developing further episodes of depression, social anxiety, self -loathing and an increased risk or self-harm and suicidal ideation.  On the converse, the Associate Professor considers that there are minimal psychological risks from commencing the oestrogen treatment and even in the future if the child decided to change back to being a male, whilst the transition may have some psychological complexity, it is nonetheless able to be appropriately managed.

12. The recommendation is that the child be allowed to commence the cross sex hormone treatment with oestrogen therapy in order to facilitate the feminisation of her body.

BEST INTERESTS OF THE CHILD

1. The proceedings must be considered pursuant to Part VII of the Act. In determining what is in a child’s best interests I must always have regard to the matters as set out in s 60CC both as to primary considerations (s 60CC(2)) and additional considerations (s 60CC(3)).

2. It can be observed that not all of the provisions of s 60CC are of assistance in determining the appropriate orders that are to be made consistent with the child’s best interests.

3. I am however able to find that the child has expressed a clear view that she would wish orders to be made that would enable the proposed treatment to commence forthwith.  I am obliged to consider the child’s maturity and level of understanding and in this case am entirely satisfied based on the evidence of the child’s parents but also Associate Professor P and Dr T that significant and substantial weight should be given to the expressed wishes of the child.

4. I have already decided that the child is able to make an informed decision as to the proposed treatment.  I consider that in the circumstances of this case the risk to the child of denying the commencement of oestrogen therapy would be substantial and potentially grave.

CONCLUSION

1. Accordingly, I am satisfied that Flynn is competent to make her own decision in respect of the proposed gender identity treatment leading to the feminisation of her body.

2. I am not prepared to make an order by way of declaration.  I am not satisfied that the power exists to make such a declaration and in any event do not consider that it is necessary to do so.  It is sufficient that there be a finding that the child is competent to consent to the medical treatment as described.

3. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 31 July 2015.

Associate: 

Date:  31 July 2015