Re: G16

[2022] FCWA 226

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: RE: G16 [2022] FCWA 226

CORAM: DUNCANSON J

HEARD: 10 OCTOBER 2022

DELIVERED : 26 OCTOBER 2022

FILE NO/S: [Redacted]

BETWEEN: DEPARTMENT A

Applicant

AND

THE MOTHER

First Respondent

AND

THE FATHER

Second Respondent

AND

SREVICE B

Third Respondent

Catchwords:

CHILDREN - where the child is in the care of the applicant pursuant to a protection order (until 18) - where the child who is 13 years of age has been diagnosed with Gender Dysphoria and wishes to access stage 1 puberty blocking treatment in Western Australia - where the child has received treatment in [State B] - where the mother's whereabouts are not known - the procedures of [Service B] - where it is found the child is not Gillick competent to consent to treatment - where it is in the best interests of the child that an order be made that the applicant have leave to authorise the administration of treatment

Legislation:

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

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr A
First Respondent	:	No Appearance
Second Respondent	:	Ms B
Third Respondent	:	Ms C
Independent Children's Lawyer	:	Ms D

Solicitors:

Applicant	:	Department A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Law Firm A
Third 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 Jamie (2013) FLC 93-547
Re Kelvin (2017) FLC 93-809
Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 (Marion's case)

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: G16 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).

1The proceedings concern [G16] who is 13 years and seven months of age. G16 was born male, but desires to be a female. G16 has been diagnosed with Gender Dysphoria. In these reasons I shall refer to G16 using the female pronoun.

2On 10 October 2022 I made the following orders:

1The Applicant have leave to authorise the administration of stage 1 puberty suppression (hormone blocker) treatment to the child, [G16] born [in] March 2009 for the purpose of Gender Dysphoria treatment in such dose and manner and with such frequency as determined by his medical treating team at [Hospital A] and the administration of the treatment is hereby authorised.

2The child's full name, his family members, his 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.

3Only 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.

4No person shall be permitted to search the Court file in the matter without first obtaining the leave of a Judge.

5The application be otherwise dismissed.

3These are my reasons.

4By initiating application filed 25 October 2021, the applicant, the Chief Executive Officer of [Department A] ("the Department") seeks an order that it have leave to authorise the administration of stage 1 puberty suppression (hormone blocker) treatment to G16 for the purpose of Gender Dysphoria treatment in such dose and manner and with such frequency as recommended by the treating medical practitioners at [Hospital B] and/or [Hospital A] as the case may require.

5G16 is in the care of the Department pursuant to a Protection Order (until 18) made by the Children's Court of Western Australia [in] July 2014. The Department has parental responsibility for G16.

6The first respondent is G16's mother. Her whereabouts are not known and efforts to locate her were unsuccessful. Family members were unable to provide a phone number for her and service upon her at previous addresses was unsuccessful. On 30 November 2021 upon the oral application of the Department, I ordered that service upon the mother of the application be dispensed with.

7The second respondent is G16's father. He is supportive and in agreement with the orders sought by the Department.

8The third respondent is the [Service B], which is the health service provider for Hospital A under the Health Services Act 2016 (WA). Service B neither consents to nor opposes the order sought by the Department.

9G16 is represented by an Independent Children’s Lawyer, [Ms D]. The ICL supports the orders sought by the Department.

BACKGROUND

10G16 was born [in] March 2009. G16 was taken into care from her parents due to substantiated emotional harm [in] October 2011. The Protection Order was made as set out above.

11G16 has been placed with her current foster carers since [December 2017].

12Approval was granted for G16 to reside in [State B] for a time‑limited period with her current foster carers. G16 attends [school] in [City B]. She has started her gender transition at school. The Department plans that G16 return to Western Australia to be placed with paternal family on country to ensure connection to her [Aboriginal culture]. The Department does not want G16 to be forced to come to Western Australia.

13G16 identifies as female. As of October 2021, she had done so for about a year.

14G16 has attended [Service C] of Hospital B since February 2020.

15In June 2021, Service C reported it had decided unanimously that G16 met the criteria for Gender Dysphoria and recommended that following onset of puberty, G16 commence pubertal suppression, Lucrin.

16Following a formal request from Service B, [Dr E], Consultant Child and Adolescent Psychiatrist and [Mr F], Senior Clinical Psychologist of Hospital A [Service D] prepared a report dated 4 November 2021. They reported they were satisfied that all the necessary diagnostic criteria had been addressed appropriately by Service C. They were also satisfied that G16 strongly wished and requested to commence puberty suppression and that she had a basic age-appropriate understanding of what the medication would do.

17On 21 October 2021 G16 was admitted to Hospital B in the context of suicidal ideation. G16's distress and suicidal ideation was exacerbated by her reaching Tanner stage 2 and her fear that if she was to return to Western Australia, she would not be able to access gender affirming treatment for a 12 – 24 month period. Hospital B informed the Department that Court approval for stage 1 treatment was not required in that State. Given G16's fragile mental state, a decision was made to seek approval to commence treatment urgently in State B.

18G16 has received four doses of Lucrin between [December] 2021 and [August] 2022. On each occasion, consent to that treatment was provided by the Department and G16's father.

19Service C requested the Department consider removing its condition that consent be provided to each dose. The Department took the view it should provide consent to each dose rather than continuous consent.

20G16 is due to receive her fifth injection of Lucrin [in] November 2022 and requires consent from the Department.

21The Department seeks an order that it have leave to authorise the administration of stage 1 puberty blocker treatment as determined by Hospital A. This would take effect once G16 is present in Western Australia.

22The Department submitted the proposed orders are to allow for smooth transition of G16's care with minimal delays. The Department and G16's carers are in communication about her appointments and care needs. The Department has regular communication with the State B services to discuss G16's mental health and case planning.

23G16's family are supportive of treatment and have had time to adjust to her gender transition. In August 2022, G16's family visited G16 and her [sibling] in State B. The trip was a positive one. In October 2022, G16 and her sibling travelled to City A and stayed with their family.

EVIDENCE AND DOCUMENTS RELIED ON

24The Department relied on:

•a case information affidavit filed 25 October 2021;

•a multidisciplinary report of Service C, signed by a mental health social worker, speech pathologist and consultant child and adolescent psychiatrist;

•an affidavit of [Ms G], Senior Child Protection Worker at the Department, filed 30 November 2021;

•a report from Dr E, Consultant and Adolescent Psychiatrist and Mr F, Senior Clinical Psychologist, of Service D of Hospital A dated 4 November 2021;

•submissions filed 11 February 2022; and

•an affidavit of [Ms H], Child Protection Worker at the Department, affirmed 7 October 2022.

THE LEGAL PRINCIPLES

25In Re Jamie (2013) FLC 93-547 the Full Court determined that stage 1 treatment was to be regarded as therapeutic. In respect of stage 1 treatment, if the child, the parents and the medical practitioners agree, there is no need for the Court to determine the Gillick competence of the child. A Gillick competent child may consent to stage 1 treatment and if the child is not Gillick competent, the child's parents may consent. In those circumstances the Court's intervention is not required.

26 Gillick competence is established if a child has achieved a sufficient understanding and intelligence to enable her 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")).

27In Re Kelvin (2017) FLC 93-809 at [12] the Full Court described stage 1 treatment as follows:

Stage 1 treatment is “puberty blocking treatment” and the effects of this treatment are reversible when used for a limited time for approximately three to four years. Gonadotrophin releasing hormone analogue (GnRHa) are used for stage 1 treatment and are administered via injection with the aim of reducing the psychological distress associated with development and progression of the unwanted, irreversible changes of the adolescent’s endogenous (biological) puberty. It also allows the adolescent time to mature emotionally and cognitively such that they can achieve maturity sufficient to provide informed consent for stage 2 treatment. Stage 1 treatment is ideally commenced in the early stages of puberty (known as Tanner Stage 2) which can occur from the age of approximately nine to 12 years of age.

28At the time of making the orders G16 was present in Western Australia. The second respondent, G16's father, resides in Western Australia.

THIS APPLICATION

29There is no dispute between G16, the Department, the father and G16's medical practitioners, all of whom agree that the Department should have leave to authorise the administration of stage 1 puberty suppression to G16.

30Service B neither consents to, nor opposes the treatment.

31The consent of G16's mother to the treatment has not been able to be obtained.

32Pursuant to the Protection Order, G16 is in the care of the Department which has parental responsibility for her until she is 18 years of age.

33As discussed below, upon the medical evidence, G16 is not Gillick competent to consent to treatment.

THE SERVICE B POSITION

34On 27 July 2021 the Chief Executive of Service B wrote to practitioners at Service D. He provided the following direction:

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

·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 D]

·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 D].

This change is effective immediately.

35Having regard to G16 being in the care of the Department and in the absence of the consent of her mother, an application to the Court was necessary.

36Accordingly, I shall determine the application pursuant to s 162 of the Family Court Act1997 (WA) ("the Act"). In doing so I shall regard the best interests of G16 as the paramount consideration. I must consider the primary and additional considerations set out in s 66C of the Act, in so far as they are relevant.

IS G16 GILLICK COMPETENT?

37In June 2021, it was reported of G16 that moderate to severe expressive language difficulties were present, and General Paediatrics were exploring whether G16 met criteria for FASD. G16 was reportedly achieving at a level several years behind her chronological age at school, and she was referred to Hospital B General paediatrics for diagnostic clarification of developmental delay. Investigations suggested G16 may have an underlying learning difficulty.

38In November 2021 Dr E and Mr F reported they were satisfied that G16 strongly wished and requested to commence puberty treatment and that she had a basic age-appropriate understanding of what the medication would do.

39As reported by Service C, one of the criteria considered for puberty supressing hormones is whether the adolescent has given informed consent, and particularly when the adolescent has not reached the age of medical consent, the parents or other caretakers or guardians have consented to the treatment and are involved in supporting the adolescent through the treatment process. This criterion is not met.

40Upon the evidence, I am not satisfied that G16 is competent to consent to stage 1 treatment.

G16'S BEST INTERESTS

41G16 resides with her foster carers in State B.

42I have considered the medical evidence very carefully. The reports of Service C and Hospital A Service D are respectively dated June 2021 and November 2021. I am informed G16's diagnosis is unchanged.

43G16 has been diagnosed with Gender Dysphoria. As discussed above at [17], approval was sought for G16 to urgently commence treatment in State B. G16 has received stage 1 treatment in State B.

44It was most recently reported that G16 has responded well to treatment and is enthusiastic about having further treatment.

45In 2021 it was reported G16 said she will kill herself if she returns to Western Australia, and she expressed concern that she would be prevented from living in her affirmed gender should she move into the care of her kin.

46Since then, G16's family have expressed their support for her to receive treatment. She has spent time with them in State B and recently in Western Australia.

47The ICL submitted that going forward, G16 will likely spend time in both Western Australia and State B. G16 has fragile mental health and some other challenges. The ICL submitted it would be very helpful for G16 that she feels supported regardless of where she is. I accept that submission. The making of the order sought will assure G16 that treatment can continue in Western Australia upon her return.

48G16 is an Aboriginal child and the Department wish her and her sibling to return to Western Australia to begin a process of reunification with family and country. I have taken this into account as one of the many matters I am required to consider in determining G16's best interests.

CONCLUSION

49Having considered all of the relevant matters I am satisfied that the order sought that the applicant have leave to authorise Hospital A to administer stage 1 puberty suppression treatment to G16 is in her best interests.

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

RM

Associate

26 OCTOBER 2022