Re: G12

[2022] FCWA 105

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: RE: G12 [2022] FCWA 105

CORAM: DUNCANSON J

HEARD: 11 MAY 2022

DELIVERED : 18 MAY 2022

FILE NO/S: [Redacted]

BETWEEN: THE APPLICANT

Applicant

AND

THE FIRST RESPONDENT

First Respondent

AND

THE SECOND RESPONDENT (Deceased)

Second Respondent

AND

THE THIRD RESPONDENT

Third Respondent

AND

SERVICE A

Fourth Respondent

Catchwords:

CHILDREN - where the child who is 15 years and nine months of age has been diagnosed with Gender Dysphoria and wishes to access stage 2 gender affirming hormone treatment - where the child is in the care of the first applicant pursuant to a protection order (until 18) - the procedures of [Service A] - where it is found the child is Gillick competent to consent to treatment - where a declaration is made to that effect - where it is in the best interests of the child that an order be made authorising treatment

Legislation:

Family Court Act 1997 (WA) s 66C, s 162
Health Services Act 2016 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	N/A
Third Respondent	:	Self-Represented Litigant
Fourth Respondent	:	Ms B
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	No Appearance
Second Respondent	:	N/A
Third Respondent	:	No Appearance
Fourth Respondent	:	Law Firm B
Independent Children's Lawyer	:	Law Firm C

Case(s) referred to in decision(s):

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Kelvin (2017) FLC 93-809
Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: G12 has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1These proceedings concern [G12] who is 15 years and nine months of age. G12 was born male but desires to be female. G12 has been diagnosed with Gender Dysphoria. In these reasons I refer to G12 using the female pronoun.

2On 11 May 2022 I made the following orders:

1There be a declaration that the child [G12] born [in] August 2006 is competent to give consent to the administration of stage 2 cross hormone treatment to her for her diagnosed condition known as "Gender Dysphoria".

2The proposed stage 2 treatment of the child, being the administration of oestrogen to be administered in such dose and manner and with such frequency as determined by her medical treating team at [Hospital A] is authorised by this Court.

3The child's full name, her family members, her medical practitioners, the Court file number, the State in which the proceedings were initiated and any other fact or matter that might identify the child shall not be published in any way.

4Only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file name and number, and lawyers' names and details, as well as the child's real name, (both past and present) shall be released by the Court to non-parties without contrary order of a Judge.

5No person shall be permitted to search the Court file in the matter without first obtaining the leave of a Judge.

6The application otherwise be dismissed.

3These are my reasons.

4By initiating application filed 2 February 2022 the applicant, G12's [grandmother], sought orders which included:

•a declaration that G12 is competent to give consent to the administration of stage 2 cross hormone treatment to her for her condition known as Gender Dysphoria;

•the proposed stage 2 hormone treatment, being the administration of oestrogen to be administered in such dose and manner and with such frequency as determined by her medical treating team at Hospital A, be authorised by the Court.

5The first respondent is G12's [step-grandfather]. [In] March 2013 at the [Children's Court] a Protection Order special guardianship in respect of G12 was made. It was ordered that the applicant and the first respondent in these proceedings have parental responsibility for G12 until she reaches 18 years of age. The first respondent consents to the orders sought.

6The second respondent is G12's mother. She is deceased.

7The third respondent is G12's father. His whereabouts are unknown. On 18 February 2022 I made an order that the requirement for service of this application upon the third respondent be dispensed with, as I was satisfied in the circumstances that such an order was appropriate.

8The fourth respondent is the Chief Executive Officer of [Service A]. Service A is the health service provider for Hospital A under the Health Services Act 2016 (WA). The fourth respondent neither consents to nor opposes the orders sought.

9On 18 February 2022 I made an order that G12 be independently represented at the further hearing of these proceedings. G12 is represented by an Independent Children’s Lawyer, Ms C. The ICL supports the orders sought by the applicant.

BACKGROUND

10G12 was born [in] August 2006.

11G12 and her [sibling] have been cared for by the applicant and the first respondent since they were [infants]. The applicant and first respondent also cared for another of G12's siblings, from the time that child was nine years of age.

12G12's mother had a significant drug abuse problem and was not in a position to care for [G12 and her sibling]. G12's father has not seen G12 since she was two years of age.

13G12's mother died [in] 2018.

14[In] March 2013 the [Children's Court] made the Protection Order special guardianship as set out above.

15The applicant and the first respondent commenced living together in 1983. They separated finally in November 2021.

16The applicant deposed that from approximately five years of age G12 rejected boys' clothing and wore girls' clothing publicly from approximately six years of age. Since then, she has been known as [the name she chose for herself].

17G12 was initially referred to the [Unit A] in 2014 and was subsequently diagnosed with Gender Dysphoria.

18The family previously lived in [Country A] but have been living in [City B] since late 2020. They intend to return to [Country A] soon.

19G12 commenced puberty suppression in May 2019 which she has been very happy with and it has been associated with a reduction in anxiety.

20An order was made on 20 April 2022 that G12's name be changed from her birth name to her preferred name.

EVIDENCE AND DOCUMENTS RELIED ON

21The applicant relied on her case information affidavit filed 2 February 2022. She also relied on reports from the following practitioners:

•Clinical Associate [Professor D], Paediatric Endocrinologist dated 28 March 2022;

•[Dr E], Consultant Child and Adolescent Psychiatrist dated 12 April 2022; and

•[Mr F], Senior Clinical Psychologist dated 13 April 2022.

THE LEGAL PRINCIPLES

22In Re Kelvin (2017) FLC 93-809 the Full Court determined that stage 2 treatment could no longer be considered a medical procedure for which consent lay outside the bounds of parental authority and required the imprimatur of the Court.

23Further in respect of stage 2 treatment, the Full Court determined that if a child consents to medical treatment, the medical practitioners agree the child is Gillick competent, and the parents do not object to treatment, it is not mandatory to apply to the Court for a determination as to Gillick competence. If all agree, a Gillick competent child can consent to stage 2 treatment.

24If the child is not Gillick competent, and if the treating medical practitioners agree, the child's parents can consent to stage 2 treatment without Court approval.

25In the event there is genuine dispute or controversy it is necessary for the Court to determine whether it is in the best interests of the child to authorise treatment.

26 Gillick competence is established if a child has achieved a sufficient understanding and intelligence to enable the child to understand fully what is proposed. (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 and Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 ("Marion's case")).

THE SERVICE A POSITION

27On 27 July 2021 the Chief Executive of Service A wrote to practitioners at [Service B]. He provided the following direction:

From today, [Service A] will use consent procedures that are in line with best clinical practice, current Australian legal context and [Service A] policy.

Stage 1 (puberty suppression with gonadotropin releasing hormone agonist) and Stage 2 (estrogen or testosterone treatment) are two separate treatment steps each requiring informed consent.

Court authorisation for stage 1 treatment is required if:

·The child is in [State care]

·There is dispute relating to diagnosis and / or treatment, between:

o Parents/ legal guardians and the child

oParents/ legal guardians and [Service B]

·Consent is unable to be gained from all parents/ legal guardians

Court authorisation for stage 2 treatment is required if:

·The child is in [State care]

·The child is not Gillick competent

·There is dispute relating to Gillick competence and / or diagnosis and /or treatment, between:

oParents/ legal guardians and the child

oParents/ legal guardians and [Service B]

·Consent is unable to be gained from all parents/ legal guardians

·The child wishes to commence stage 2 treatment at less than 16 years of age even if the child is Gillick competent and there is agreement between child, parents and [Service B].

This change is effective immediately.

THIS APPLICATION

28G12 meets full diagnostic criteria for Gender Dysphoria (in adolescence), Gender Incongruence of Adolescence and Adulthood, and Transsexualism.

29There is no dispute between G12, the applicant, the first respondent and G12's treating medical practitioners, all of whom consider that stage 2 treatment should commence. As discussed below, the medical practitioners involved in G12's care report she is Gillick competent to consent to stage 2 treatment. That is not determinative of the matter, by reason of Service A policy, as G12 has not yet attained the age of 16 years.

30Further, Dr E reported that Service B advised the applicant to make this application, not only by reason of her age but because G12, as a child under age five, was diagnosed with Global Development Delay and Autism Spectrum Disorder. Although Dr E reported that G12 is Gillick competent, she also reported this finding could be questioned by reason of G12's pre-existing diagnosis of Global Developmental Delay.

31In all the circumstances this application was necessary, and the Court must determine whether it is in the best interests of G12 to authorise treatment.

32Accordingly, I shall determine the application pursuant to s 162 of the Family Court Act 1997 (WA) ("the Act"). In doing so I shall regard the best interests of G12 as the paramount consideration.

IS G12 GILLICK COMPETENT?

33Dr E has seen G12 regularly since 2018. Dr E is satisfied that a thorough multidisciplinary assessment has been conducted at the Service B and that she has completed her psychiatric assessment with regard to G12's eligibility for oestrogen treatment.

34Dr E reported as to whether in her view G12 has the maturity and intellectual capacity to understand the short-term and long-term implications and risks of receiving the proposed medical treatment, oestrogen. Dr E presented her assessment of G12's capacity in an 11-point format.

35Dr E reported that G12 has the ability to comprehend and retain both existing and new information regarding the proposed treatment. G12 is familiar with accurate medical information about oestrogen treatment and can remember and discuss this information.

36G12 is able to provide a full explanation, in terms appropriate to her level of maturity and education, of the nature of the treatment. Dr E described G12 as well-informed.

37G12 is able to describe the advantages and disadvantages of the treatment and able to weigh the advantages and disadvantages in the balance and arrive at an informed decision about whether and when she should proceed with treatment. Dr E described G12's decisions based on weighing-up of risks and benefits as rational and making sense when viewed from G12's point of view.

38Dr E reported G12 is able to understand that the decision to proceed with the treatment could have consequences that cannot be entirely foreseen at the time of decision and G12 is able to acknowledge that the treatment would not necessarily address all of the psychological and social difficulties that she had before its commencement. Dr E reported G12 is rather well in her mental health at present but has had anxiety symptoms in the past and can appreciate these may return at some point in the future.

39Dr E reported that G12 was free, to the greatest extent possible, from temporary factors such as pressure of pain that could impair her judgement in providing consent to treatment.

40G12 appreciates the possibility of regret about impaired fertility. She is able to appreciate the possibility of regret about gender transition in the short, medium and long-term and understand that people's feelings and wishes can change as they grow older. Dr E is satisfied G12 has appreciated the risk of regret and weighed it up in her decision-making.

41G12 is able to appreciate the possibility of disappointment about the incomplete and imperfect effects of treatment. Dr E reported she has modest and realistic expectations of benefit from oestrogen treatment.

42Dr E opined that G12 has the capacity to give informed consent to oestrogen treatment, that is she is Gillick competent in this regard.

43Mr F reported as to G12's maturity and intellectual capacity to understand the short and long-term implications and risks of receiving treatment, in other words whether in his professional opinion G12 is Gillick competent to consent to the proposed medical treatment, oestrogen. Mr F reported that in the months and years immediately after G12's birth she presented with developmental delays, and at an early age received an Autism Spectrum Disorder diagnosis. Mr F reported his observations of G12 suggested she has developed and matured very well, and that while she may have met the diagnostic criteria for autism as a young child, she may not meet those criteria currently, or if she did she would only likely meet them with a low degree of functional impact.

44Mr F reported G12 demonstrated good awareness of the likely impact of treatment on her body and understands the side-effects and risks. G12 has considered the possibility she might change her mind and has considered the impacts on her future fertility.

45Mr F reported G12 has discussed the possibility of disappointment with the effects of treatment.

46Mr F reported the level of maturity and capacity that G12 has demonstrated is at least consistent with young people her own age and equivalent to many of the other 16 year old and older people the service has previously approved for treatment. Mr F reported he believes G12 has demonstrated sufficient maturity and intelligence to be able to consent to the treatment she wishes to access. Mr F reported at [44]:

I believe first and foremost that [G12's] gender identity is long standing, strongly experienced, and very likely to persist; that in balance [G12] has demonstrated reasonable capacity to consent to the treatment she is seeking despite the diagnoses she received in early childhood and in spite of the fact that at the time this decision is taken she will not yet be 16; and it is clear to me that [G12] takes this decision fully supported by her loving legal guardian [the applicant].

47I have considered the evidence of the medical practitioners which I have summarised above. I am satisfied on the basis of that evidence that G12 is competent to consent to stage 2 treatment, oestrogen.

48As G12 is not yet 16 years of age, I proceed to make a determination of this application according to her best interests. The best interests of G12 are determined taking into account the considerations in set out in s 66C(2) and (3) of the Act insofar as they are relevant.

G12'S BEST INTERESTS

49G12 has the diagnoses as set out at [28] above. G12 lives with her grandmother and her [sibling]. Neither of G12's parents had any meaningful involvement in her care or upbringing by reason of their lifestyle choices involving extensive drug abuse.

50There is not a need to protect G12 from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in the care of the applicant.

51G12 is very keen to commence the proposed treatment. The applicant described her as mature for her age and having a good understanding of the potential risks, side effects and limitations of the proposed treatment. The applicant further deposed that at no stage has G12 deviated from her strong desire to be a female and has socially transitioned in all respects.

52G12 met with the ICL [in] April 2022. The ICL reported that G12 "felt 100% across the treatment". The ICL further reported that G12 presented as an extremely mature and thoughtful young person. G12 told the ICL she would be excited to commence treatment early and had wanted this since she was five years old. The ICL reported it would be upsetting to G12 if she was not able to commence treatment early.

53I have found that G12 is Gillick competent to consent to stage 2 treatment, oestrogen.

54Dr E reported G12 has a clear, unequivocal female identity, and intent to live as a woman throughout her life, and a strong wish for her body to be as female as possible. Dr E reported as to the positive effects upon G12 of treatment in the short, medium and long‑term. Dr E reported that should G12 not be allowed to commence oestrogen treatment, she anticipated G12 would experience great surprise, severe disappointment and a sense of injustice, unfairness, confusion and anger. There would likely be an exacerbation of depressive and anxiety symptoms, which could become severe.

55Dr E reported at [88]:

In my professional opinion, [G12] has a clear and stable female and feminine gender identity; expresses clear and consistent wishes to commence oestrogen as soon as possible under age 16; meets full criteria for diagnosis of ICD-10 F64.0 (as above) as well as full criteria for DSM-5 Gender Dysphoria; is stable in her mental health and well-supported in her life situation; and has capacity to give her informed consent to oestrogen treatment, that is, she is Gillick competent in this regard. In my opinion there is almost no chance that her wishes would change over the next five months before age 16, and there are some potential disadvantages to her mental and physical health from delaying commencement of oestrogen. In my opinion it is in her best interests to be authorised to commence oestrogen.

(as per the original)

56Mr F also reported as to the short, medium and long-term benefits to G12 of treatment. He too reported that should she not be allowed to commence stage 2 treatment he anticipated she would experience disappointment and a sense of injustice, confusion and anger. He reported there would likely be exacerbation of distress and if there were no options for accessing treatment, she would likely become sad and re-experience a significant depressed mood.

57Mr F reported at [45]:

I have no concerns and unreservedly support [G12's] wish to access stage 2, partially Irreversible Gender affirming medical treatment to allow her body to go through changes similar to female puberty.

(as per the original)

CONCLUSION

58I have considered the evidence in the context of the considerations as set out in s 66C of the Act insofar as they are relevant.

59I find it is in G12's best interests that there be an order that administration of stage 2 hormone treatment, oestrogen, to her as recommended by her treating medical practitioners at Hospital A be authorised by this Court.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

18 MAY 2022