Re: G2

[2021] FCWA 98

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: RE: G2 [2021] FCWA 98

CORAM: DUNCANSON J

HEARD: 24 MAY 2021

DELIVERED : 1 JUNE 2021

FILE NO/S: [Redacted]

BETWEEN: THE MOTHER and THE FATHER

Applicants

AND

SERVICE A

First Respondent

Catchwords:

CHILDREN - where the child has been diagnosed with Gender Dysphoria and wishes to access stage 2 gender affirming hormone treatment - where there is no dispute or controversy - where it is found the child is Gillick competent to consent to treatment - where it is in the best interests of the child that a declaration be made to that effect

Legislation:

Family Law Act 1975 (Cth) s 67ZC
Health Services Act 2016 (WA)

Category: Reportable

Representation:

Counsel:

Applicants	:	Ms A
First Respondent	:	Ms B
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicants	:	Law Firm A
First 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
R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020] EWHC 3274
Re Imogen (No 6) (2020) 61 Fam LR 344
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: G2 has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

1These proceedings concern [G2], who is 16 years and three months of age. G2 was born a female but strongly desires to be a male. G2 has been diagnosed with Gender Dysphoria.

2On 24 May 2021 I made the following declaration and orders.

It is declared that the child, XXX born [in] 2005 (known as XXX) is competent to give consent to the administration of Stage 2 cross hormone treatment to himself by way of treatment of his condition known as "Gender Dysphoria".

IT IS ORDERED THAT:-

1The application filed by the Applicants, on 10 February 2021 be otherwise dismissed.

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number, the State in which the proceedings were initiated and any fact or matter that might identify the child shall not be published in anyway.

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 further 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.

3These are my reasons.

THE PROCEEDINGS

4By application filed 10 February 2021, the applicants, G2's parents seek the following final orders:

1There be a declaration that the child XXXX (formerly known as "XXXX") ("the child") is competent to give consent to the administration of Stage 2 cross hormone treatment to himself by way of treatment of his condition known as "Gender Dysphoria".

2The proposed Stage 2 treatment of the child, being the administration of testosterone in such dose and manner and with such frequency as determined by his medical treating team at [Hospital A] be authorised by this Honourable Court.

(as per the original)

5By order dated 5 March 2021, the [Service A] was joined as a party to the proceedings as the first respondent. The Service A is the health service provider for the Hospital A under the Health Services Act 2016 (WA). In its response filed 21 May 2021, the first respondent neither consents to nor opposes the final orders sought in the application.

6G2 is represented by an Independent Children's Lawyer, [Ms C]. The ICL supports the orders sought by the applicants.

BACKGROUND

7G2's parents married [in] 1998. They separated finally [in] May 2013.

8G2 was born [in] 2005.

9G2 lives in an equal shared care arrangement with his parents. Also living with G2's father is G2's step-mother and her daughter.

10There is no dispute between G2's parents with respect to G2 undergoing stage 2 treatment.

THE EVIDENCE AND DOCUMENTS RELIED UPON

11The applicants relied upon their case information affidavit filed 10 February 2021. The first respondent relied upon the affidavit of [Ms G], general counsel of the first respondent filed 17 May 2021 to which are attached reports from G2's treating medical practitioners.

12The first respondent also relied upon an outline of submissions filed 21 May 2021.

13The ICL relied upon her affidavit filed 11 May 2021.

GENDER DYSPHORIA

14Gender Dysphoria is a term that describes the distress experienced by a person due to incongruence between their gender identity and their gender assigned at birth (Re Imogen (No 6) (2020) 61 Fam LR 344 at [22] ("Re Imogen")).

15Stage 1 treatment is "puberty blocking treatment", the effects of which are reversible when used for a limited time. Stage 2 treatment or "gender affirming hormone treatment" involves the use of estrogen or testosterone, some of the effects of which are irreversible. Stage 3 treatment involves surgical interventions. (Re Kelvin (2017) FLC 93-809 at [12] – [16]).

THE LEGAL PRINCIPLES

16In Re Imogen, Watts J considered the applicable legal principles relating to gender affirming treatment. At [28] to [34] his Honour stated with respect to the principles established so far:

28.In Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218; 106 ALR 385; 15 Fam LR 392 (Marion’s case), the High Court of Australia held that at common law and under the Family Law Act 1975 (Cth) a parent generally has power to consent to medical treatment of their child, but adopted the approach explained by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] 3 All ER 402 (Gillick), that the parental power to consent on behalf of a child diminishes as the child’s capacities and maturities grow: a child is capable of giving informed consent, and a parent is no longer capable of consenting on the child’s behalf, when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed (at CLR 237; ALR 395; Fam LR 401 per Mason CJ, Dawson, Toohey and Gaudron JJ). This capability has become known as “Gillick competence”.

29.In Marion’s case, the High Court at CLR 250–2; ALR 405–; Fam LR 410–11 drew a distinction between “therapeutic” and “non-therapeutic” procedures finding that non-therapeutic medical procedures and particularly those which in combination:

a) Require invasive, irreversible and major surgery;

b)Involve a significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about the best interests of a child who cannot consent; and

c)Where the consequences of a wrong decision are particularly grave, required court approval notwithstanding the consent of a Gillick competent child, of the child’s parents and the treating medication practitioners.

30.There is a controversy in this case as to what Re Jamie (2013) 50 Fam LR 369; (2013) FLC 93-547; [2013] FamCAFC 110 (Re Jamie) and Re Kelvin (2017) 351 ALR 329; 57 Fam LR 503; (2017) FLC 93-809; [2017] FamCAFC 258 (Re Kelvin) have decided about cases where there is dispute about consent or treatment. However as a starting point, the following is clear.

31.The Court has jurisdiction and power to determine a dispute, disagreement or controversy about consent by making an order or declaration as to Gillick competence under the welfare jurisdiction (s 67ZC of the Act); a parenting order (ss 64B(2)(i) and 65D(1) of the Act) or an order using the general powers conferred by s 34(1) of the Act (see Re Kelvin at [66]) including an order dismissing an application made under any of those sections. The Court has jurisdiction and power to determine a dispute, disagreement or controversy about treatment by making an order or declaration under the welfare jurisdiction or a parenting order.

32.In Re Jamie the Full Court determined:

a) Stage 1 treatment was to be regarded as therapeutic. Stage 2 treatment fell within the ambit of Marion’s case because there was significant risk of the wrong decision being made as to the child’s capacity to consent to treatment and the consequences of such a wrong decision would be particularly grave (this conclusion was reversed in Re Kelvin), and

b) In respect of stage 1 treatment, if the child, the parents and the medical practitioners agree, there was no need for the Court to determine Gillick competence. A Gillick competent child can consent to stage 1 treatment and if the child is not Gillick competent, that child’s parents may consent, without court intervention, and

c) In respect of stage 2 treatment, the Court is required to determine Gillick competence or otherwise authorise treatment (this was reversed in Re Kelvin).

33. In Re Kelvin, the Full Court determined that:

a) Given the current state of medical knowledge, stage 2 treatment was therapeutic and was treatment for which consent no longer lies outside the bounds of parental authority or requires the imprimatur of the court (reversing the position in Re Jamie), and

b) In respect of stage 2, if the child, the parents and the medical practitioners agree a child is Gillick competent, there was no need for the Court to determine Gillick competence (reversing the position in Re Jamie), and

c) If all agree, a Gillick competent child can consent to stage 2 treatment, and

d) If a child is not Gillick competent and the treating medical practitioners agree, the child’s parents can consent to stage 2 treatment without court approval.

34.For the sake of completeness, if all agree, the law is the same for stage 3 treatment and there is no necessity for this Court to determine whether the subject child is Gillick competent before stage 3 treatment for Gender Dysphoria can proceed (see Rees J in Re Matthew [2018] FamCA 161 (Re Matthew) at [46]).

17I respectfully agree with Watts J.

18With respect to the outstanding questions raised in that case Watts J concluded at [35]:

35.For reasons which follow, in relation to outstanding questions raised in this case, I conclude:

(a)If a parent or a medical practitioner of an adolescent disputes:

(i)The Gillick competence of an adolescent; or

(ii)A diagnosis of gender dysphoria; or

(iii)Proposed treatment for gender dysphoria,

an application to this Court is mandatory;

(b)Whether mandatory or not, once an application is made, the court should make a finding about Gillick competence of an adolescent. If the only dispute is as to Gillick competence, the court should determine that dispute by way of a declaration, pursuant to s 34(1) of the Act, as to whether or not the adolescent is Gillick competent, without the need to make a determination based upon best interest considerations. If a declaration of Gillick competence is made, then that is determinative of the only dispute before the court and the adolescent is left to determine their treatment without court authorisation;

(c)Notwithstanding a finding of Gillick competence, if there is a dispute about diagnosis or treatment, the court should:

(i)Determine the diagnosis;

(ii)Determine whether treatment is appropriate, having regard to the adolescent’s best interests as the paramount consideration; and

(iii)Make an order authorising or not authorising treatment pursuant to s 67ZC of the Act on best interest considerations;

(d)If a parent or legal guardian does not consent to an adolescent’s treatment for gender dysphoria, a medical practitioner, who is willing to do so, should not administer treatment to an adolescent who wishes it, without court authorisation.

THE POSITION OF THE SERVICE A

19Integral to the first respondent's position is the decision in R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020] EWHC 3274 ("Bell").

R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020] EWHC 3274

20On 1 December 2020 the Administrative Division of the High Court of the United Kingdom delivered its judgment in Bell. The proceedings concerned a claim for judicial review of the practice of the defendant through its Gender Identity Development Service (GIDS) of prescribing puberty suppressing drugs to persons under the age of 18 who experience Gender Dysphoria. The sole legal issue in the case was the circumstances in which a child (under the age of 16 years) or young person (under the age of 18 years) may be competent to give valid consent to treatment in law and the process by which consent to the treatment is obtained.

21The case concerned a female claimant who was referred to GIDS at 15 years of age and was first seen at 16 years of age. She was prescribed puberty blockers. She was given advice about the impact on her fertility, but her priority was to move to testosterone which she commenced at 17 years of age. She remained on testosterone for three years, but began to doubt the process of transition. Despite those doubts, at 20 years of age, the claimant had a double mastectomy. The following year the claimant decided she wished to identify as a woman and sought to return to her female identity.

22The conclusions of the Court may be summarised as follows:

•A child under the age of 16 years may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment, including an understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences. The Court concluded there would be "enormous difficulties" in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of the medication.

•It is "highly unlikely" that a child aged 13 years or under would be competent to give consent to the administration of puberty blockers.

•It is doubtful that a child aged 14 or 15 years could understand and weigh the long-term risks and consequences of the administration of puberty blockers.

•For children aged 16 years and over there is a presumption that they have the ability to consent to medical treatment given the long-term consequences of clinical interventions in the case and given that the treatment is as yet innovative and experimental, the Court recognised clinicians may well regard these as cases where authorisation of the Court should be sought prior to commencing treatment.

23The Court granted declarations accordingly.

24The decision in Bell has been appealed.

25The first respondent submits at [37] of its submissions:

37. Given the fact of the Bell dispute (and what the fact of itself indicates as outlined above), the absence of any legislative framework, and the clear position that the question of Gillickcompetency and whether there is an adequate understanding of the consequences of the treatment in question are in effect value judgments of the clinicians in question, the First Respondent's position is that it considers it appropriate for this Court to exercise its welfare jurisdiction.

Service A review

26The first respondent submits it is in the process of reviewing its processes and procedures within the [Service B] to ensure that care and treatment provided is of the highest standard and consistent with any requirements identified as arising from recent Court decisions.

27The first respondent does not regard Bell as a barrier to treatment and submits it provides clarification or guidance as to the legal framework within which treatment decisions are to be made. The first respondent submits there is no intent to cease the treatment and new referrals can continue with decisions to be made in a transparent and robust decision making framework.

28The first respondent submits that following Re Imogen and possible implications which flow from the decision in Bell it has taken the view to change its current practices and procedures whilst a review of the Service B is undertaken.

29Pending the review the first respondent proposes a framework for conducting matters of this nature that:

(a)in all cases of treatment for Gender Dysphoria an application should be made to the Court seeking permission for treatment to proceed;

(b)the child should be separately represented;

(c)in matters of complexity or dispute, the Court might consider the assistance of a contravener; and

(d)in cases where the child is Gillick competent, 16 years of age or older and the parents consent to and support the treatment and there is agreement by the clinicians, the first respondent is likely neither to consent to nor oppose the application.

30The first respondent submits that the framework adopted while it undertakes its review of the Service B will enable the Court to address a matter (not likely to be this one) which might arise involving a significant degree of controversy or dispute.

THIS APPLICATION

31G2's presentation and symptoms are consistent with a diagnosis of Transsexualism as well as Gender Incongruence of Adolescence or Adulthood.

32There is no dispute between G2, the applicants, or G2's treating medical practitioners. For the avoidance of doubt I record that G2, who, as set out below, I find to be Gillick competent, wishes to access stage 2 treatment. G2's parents support his wish to access treatment. The ICL supports the orders sought by G2's parents to that effect. G2's treating medical team supports his access to treatment. As discussed below G2's treating clinical psychologist is of the view that withholding treatment would ultimately be harmful to G2.

33In the circumstances of this matter an application to the Court is not mandatory. The application is made by the applicants by reason of the position taken by the first respondents pending the review as set out above.

34On 28 January 2021 a letter dated 21 January 2021 from [Dr B], the chief executive of the first respondent, was sent to parents of the patients of the Service B including the applicants. The letter stated there had been changes in the first respondent's Service B pathway to gender affirming medical treatment, being puberty suppression treatment, estrogen or testosterone treatment, for children and young people under 18 years of age. The letter explained the first respondent was conducting a review of its processes and set out the changes in the services pathway to gender affirming medical treatment.

35Relevantly the letter stated:

If your child is scheduled to start puberty suppression, Estrogen or Testosterone treatment at the [Service B], [Hospital A] for the first time: there will be a delay in the commencement of the treatment. As a result of the possible changes in the law, it may be considered appropriate and necessary for Court approval to be obtained prior to the commencement of any such treatment.

36The first respondent submits that G2 was assessed in relation to Gillick competency by two clinical psychologists and an endocrinologist rather than a psychiatrist, psychologist and endocrinologist. However, the first respondent also submits there is no reason to query the conclusions being advanced by Senior Clinical Psychologist [Mr D] as to G2's determination to proceed to treatment, and the understanding of the nature, limitations and disadvantages of the proposed treatment.

37The first respondent went on to submit that Mr D, "provides a professional, reasoned view that the child in question is aware of, and understands, the negative aspects of the treatment".

38As discussed below Mr D is a most experienced Clinical Psychologist who has conducted assessments with G2 for a period of almost two years.

39An application having been made for treatment, it is necessary for me to determine the Gillick competence of G2. Gillick competence is established if G2 has achieved a sufficient understanding and intelligence to enable him to understand fully what is proposed. (see 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)).

40There is no dispute between G2, his parents or his treating medical practitioners as to G2's diagnosis or treatment. I propose to determine the Gillick competence of G2. In deciding whether to make a declaration pursuant to s 67ZC of the Act, that G2 is competent to consent to treatment, I shall regard G2's best interests as the paramount consideration. A declaration as to Gillick competence is determinative of the matter as, if made, G2 can determine his treatment without Court authorisation.

SHORT HISTORY

41From the age of about eight years, G2 refused to play with girl's toys and for his birthdays and Christmas he would ask for male orientated toys.

42G2 began wearing more shorts and tops but still loved dressing up. In 2017 he developed an interest in "[particular]" costumes and roleplaying, as a way to express himself as a male character.

43In 2017 his parents described him as "being more of a tomboy" and he wanted to cut his hair.

44At the beginning of the Year 8 school year in 2018 G2 asked his mother whilst shopping for school supplies if they could go to the chemist and buy some tape to tape his chest.

45G2 completed Years 7 and 8 at [School A], at which time he used his birth name.

46G2 came out as transgender in Year 8, 2018. By mid-year he was asking his teachers to call him G2 and he had cut his hair shorter. By September 2018 G2 had told his parents and was slowly telling extended family on both sides and friends.

47G2 moved schools and attended [School B] in Years 9 and 10.

48G2 formally changed his name on the school roll at the beginning of 2019 and his parents met with the school to facilitate the transition.

49G2 is making satisfactory progress educationally. He has a regular attendance at school, with a few sick days or medical/psychological appointments.

50He commenced Year 11 at [School C] in 2021.

51G2 has an interest in [the arts] and has a desire to attend university or TAFE.

52G2's parents deposed that in the lead up to Christmas last year G2 appeared "down" and told his mother he was feeling really low and stressed and he alluded to self-harm thoughts. G2's parents deposed G2 has expressed distress and anger after being advised he cannot receive the treatment he has been so looking forward to and waiting for, for some three years. G2's parents are concerned for G2's mental health if he is not able to access the treatment previously approved as he had been "functioning really well" with the prospect of treatment.

53G2 spoke in similar terms to the ICL in April 2021. Since learning his treatment was delayed, his dysphoria has worsened and he has been on antidepressants.

IS G2 GILLICK COMPETENT?

54Mr D is a Senior Clinical Psychologist, employed by the [Service C] at Hospital A. Mr D has worked as a Clinical Psychologist for 26 years and in the Service B for seven years. Mr D provided a report in relation to G2 dated 13 May 2021. Mr D first assessed G2 on 21 August 2019 and has reviewed him and conducted further assessments with him and his family regularly since.

55Mr D reported that G2 impresses as frank and expressive in his responses to questioning. Mr D found no evidence of significant mental health concerns apart from dysphoria and recently some distress arising from family matters. Mr D also noted some worry about the delay in access to treatment and reported that G2 has sought mental health care for his distress. G2 impressed Mr D as a motivated and engaged young person.

56Mr D reported G2 has been "unswerving in his expressed desire" for treatment. G2 is well informed about the effects of testosterone, partially from information received, but also through his own research.

57G2 expressed to Mr D that he could cope with, and address any complexities associated with treatment as they arose and he expressed realistic understandings of physical changes to be expected and the limitations thereto.

58Mr D reported G2 has an adequate understanding of the possible emotional and social consequences of stage 2 treatment and is aware that it will not necessarily make all the changes he might want.

59G2 has expressed that he will no doubt experience distress if he regrets the decision he has made or changes his mind, but he is confident about his capacity to obtain support and professional help.

60G2 addressed the following question:

Whether, in your view [G2] has the maturity and intellectual capacity to understand the short and long implications of receiving treatment (so that the court can be satisfied that [G2] is competent to consent to the procedures)

61Mr D is satisfied that G2 is a competent minor in this respect. He has assessed G2's capacity based on the following:

•G2 has been an average to good student and impressed as insightful, coherent and consistent. Mr D opined that G2 is likely to be at least as intelligent as the majority of his peers and has no concerns for his intellectual capacity to consider the implications of treatment.

•G2 has demonstrated to Mr D that he is well informed and has a good understanding of the nature of the treatment he seeks. G2 understands the effects it will have on his body and how long it will take for those effects to emerge. He understands that there are limits to the changes that testosterone will bring. G2 is well aware of the risks inherent to this medication and understands that it will not resolve all of the difficulties he faces in life.

•G2 anticipates the changes testosterone will have upon him. He has considered the possibility of disappointment in its effects, but would be more disappointed if he chose not to try the treatment or was prevented from doing so.

•G2 doubts he would experience a change of identity as he ages, but has pragmatic opinions as to how he would address such outcomes if they were to arise.

•G2 has reflected on his future fertility and seen the fertility consultant.

62Mr D reported as follows:

In Summary: I believe that [G2] is at least as mature as same aged peers; that he has considered the implications of treatment well and is prepared for most issues that might arise. [G2] has demonstrated a positive approach to accessing medical treatment and has broadly tolerated the setbacks he has so far experienced. He has shown that he has a positive future focus and is broadly realistic in his expectations of himself and of the impacts of treatment. He demonstrates and expresses commitment to positive help-seeking behaviour and thus I believe is likely to be protected from negative outcomes that might arise.

63Mr D reported that he believes G2 has demonstrated adequate capacity to consent to stage 2 treatment and as such he supports him in his wish to access testosterone.

64[Ms E] is a Clinical Psychologist of the Service B at Hospital A. Ms E has worked at Hospital A in the role of Clinical Psychologist for 14 years and in the Service B for the last two and a half years. Ms E provided a report in respect of G2 dated 6 May 2021. Ms E reported that G2 has clearly demonstrated over a two year history of male identity.

65G2 sees a therapist at [Service D] to support him around anxiety and low mood relating to school anxiety and body dysphoria. He also attended a therapy group to assist with his needle phobia. Ms E reported at the time of her assessment, G2's mental health had significantly improved and would not have any impact on his ability to make decisions about gender affirming medical treatment.

66Ms E addressed the same question as Mr D as set out at [60] above. She reported G2 was 16 years and two months old (at that time) with a clear over four year history of expressed male gender identity. He has been consistent in expressing his male identity. She reported G2 is most likely of average intelligence.

67Ms E reported G2 has been assessed for his understanding of the likely impacts of treatment and demonstrated an awareness of those impacts and limitations. G2 is aware there are some risks associated with treatment, but nonetheless motivated to access it.

68G2 has considered the impact of treatment on fertility and Ms E reported he is realistic in his thinking.

69Ms E reported as follows:

I believe [G2] has the capacity to consider the short-term and long-term implications of the treatment he is requesting. I think he has realistic expectations and is well informed. I think that he has considered the possible ramifications of treatment reasonably and is prepared for the possibility that treatment may be disappointing. I think he has weighed his current wishes for treatment against the possibility of regret and come to the conclusion that treatment is still worthwhile. I note that also [G2] is strongly supported by both his parents in asserting that he is a male and that he is primarily anticipating positive impacts of this treatment. Furthermore, I have not seen any evidence that [G2] is being unduly influenced by any other person or circumstance.

In summary, I consider that [G2] clearly demonstrates capacity to consent to stage 2 gender affirming treatment, testosterone.

70Ms E further reported that she is satisfied G2 is not for any psychological reason influenced by, or attempting to please any person by wishing to change gender.

71The ICL met with G2 on 27 April 2021. The ICL reported that G2 presented as insightful and mature. She reported that G2 said he felt as though he is "across all of the issues to do with treatment". The ICL reported G2 is excited about the changes testosterone will make, but also aware of the short and long term issues.

72G2 is 16 years of age. He has consistently expressed the desire to be a male. G2's own feelings were communicated to the ICL in his meeting with her. The ICL reported that G2 told her as follows:

He feels the testosterone treatment will change his whole life. He thinks he will feel normal then and that it is about "survival". If he did not think he was going to get testosterone, he did not think he would have "lasted as long".

73The professionals involved in G2's care opine that he has the maturity and intellectual capacity to understand the short and long-term implications of receiving treatment. I am satisfied G2 has achieved a sufficient understanding and intelligence to enable him to fully understand the treatment proposed and the possible consequences.

74I have carefully considered the evidence which I have summarised above. I am satisfied on the basis of that evidence, primarily that contained in the reports of Mr D and Ms E that G2 is competent to consent to stage 2 treatment.

75The Court's jurisdiction to make the declaration sought by the applicants is contained within s 67ZC of the Act. In deciding whether to make the declaration sought, I must regard the best interests of G2 as the paramount consideration.

G2'S BEST INTERESTS

76G2 has clearly expressed the view that he wishes to undergo the treatment and Mr D and Ms E have deposed to his maturity and level of understanding. I have found he is competent to consent to that treatment.

77G2 has a close relationship with both of his parents who are supportive of the treatment he seeks. Mr D reported to having seen G2 and his parents on approximately seven occasions. G2's parents and step-mother reported to Mr D that G2 has been consistent in the expression of his male gender identity, and that they have noticed a decline in his apparent mental health since he entered into puberty and a subsequent improvement in his mental health since he transitioned to his preferred male gender role.

78Mr D reported:

[G2] has indicated that whilst he rarely concedes to suicidal ideation, considering himself to be a very future oriented and instantly regretting the thought when it occurs; If he were not able to consider a life in which his gender will be affirmed and he is permitted to achieve some physical transformation through medical means, he concedes that he "would not be here" in the future.

79Mr D anticipated that if G2 was denied access to treatment he would experience intense psychological distress with a predominantly dysphoria (unpleasant) and worried mood. Mr D described this as a continuing feature that would not resolve after a period of G2 adjusting to the decision.

80Mr D reported that if treatment is approved, G2 will experience immediate benefits to his mental health associated with being recognised and validated as a male. G2 anticipates that the changes he experiences will enable him to feel more confident in the community, being seen and experienced as a male by others and the treatment will be powerful in terms of mitigating the dysphoria he currently experiences.

81Ms E reported G2 is likely to experience immediate psychological relief in commencing treatment relating to the sense that his wish to transition to male gender has been recognised and in anticipation of the future outcome that he desires.

82Ms E reported if G2 was denied access to gender affirming medical treatment:

… I anticipate that he would experience intense psychological distress with a predominantly dysphoric (unpleasant) and worried mood, he would experience confusion and a sense of anger. I anticipate that these would be continuing features what would not resolve after a period of adjustment to the decision. As mentioned above, whilst [G2] dismisses suicidal thinking, he acknowledges that he believes this would be much more difficulty to maintain if he were to experience no hope of physically transitioning.

83Clinical Associate Professor, [Mr F] reported that G2 is a transgender male under evaluation for hormone treatment. He reported there has been a long history of male gender identity. From the endocrine perspective there are no reservations to initiate hormonal therapy.

84Upon the evidence as set out above, I am satisfied that a declaration that G2 is Gillick competent to consent to treatment is in his best interests.

85I intend to make a declaration to that effect pursuant to s 67ZC of the Act.

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

RM

Associate

1 JUNE 2021