Re: G6

[2021] FCWA 225

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

CITATION: RE: G6 [2021] FCWA 225

CORAM: DUNCANSON J

HEARD: 18 NOVEMBER 2021

DELIVERED : 3 DECEMBER 2021

FILE NO/S: [Redacted]

BETWEEN: Department A

Applicant

AND

The Mother

First Respondent

AND

The Father

Second Respondent

AND

Service A

Third Respondent

Catchwords:

CHILDREN - where the child has been diagnosed with Gender Dysphoria and wishes to access stage 1 puberty blocking treatment - where the child is in the care of the applicant pursuant to a protection order (until 18) - where the child's parents support the orders sought - where the child is not Gillick competent to consent to treatment - where it is necessary to determine the application under the welfare jurisdiction of the Court having regard to the best interests of the child as the paramount consideration

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	:	Self-Represented Litigant
Third Respondent	:	Ms B
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Department A
First Respondent	:	No Appearance
Second Respondent	:	No Appearance
Third Respondent	:	Law Firm A
Independent Children's Lawyer	:	Law Firm B

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) 351 ALR 329
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: G6 has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1These proceedings concern [G6] who is [13 years old]. G6 was born a male but strongly desires to be female. G6 has been diagnosed with Gender Dysphoria. In these reasons I refer to G6 using the female pronoun.

2On 18 November 2021 I made the following orders:

1The title of the proceedings is to be "RE: [G6]".

2The child, [G6] born [in] 2008 (known as [G6]) be independently represented at the further hearing of these proceedings and the Director – Client Services, [Law Firm B] be requested to arrange such representation, as this is a Gender Dysphoria matter, noting that [Ms D] has been appointed.

3The hearing of the application be expedited.

4The Applicant, [Department A] have leave to authorise the administration of Stage 1 hormone blocker treatment to the child 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 A].

5The child's full name, family members' names, medical practitioners' names, 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.

6Only 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 (past and present) shall be released by the Court to non-parties without contrary order of a Judge.

7No person shall be permitted to search the Court file in the matter without first obtaining leave of a Judge.

8The proceedings otherwise be dismissed.

3These are my reasons.

THE PROCEEDINGS

4The applicant is [Department A]. By initiating application filed 13 August 2021, the applicant sought orders including that the applicant have leave to authorise the administration of stage 1 hormone blocker treatment to the child [G6] born [in] 2008 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 A].

5The first respondent is G6's mother. The second respondent is G6's father. The first and second respondents have not filed a response to the application however, the applicant understands they are supportive of the orders sought therein.

6The third respondent is [Service A]. Service A is the health service provider for Hospital A under the Health Services Act 2016 (WA). The third respondent also supports the orders sought in the application.

7Orders were made for the appointment of an Independent Children’s Lawyer. [Ms D] was appointed to represent G6. The ICL supports the orders sought by the applicant.

BACKGROUND

8G6 was born [in] 2008. G6 was removed from the care of the first respondent in 2008 due to concerns of neglect.

9G6 is in the care the applicant pursuant to a protection order (until 18) made in 2011 in [Court A].

10G6 has been placed with her foster mother since 2008. G6 has monthly contact with the first respondent supervised by the applicant. G6 spends time with the first and second respondents on one occasion each school holidays, also supervised by the applicant.

11G6's foster mother also fosters [children] who are unrelated to G6.

THE EVIDENCE AND DOCUMENTS RELIED ON

12The applicant relied on its' case information affidavit filed 13 August 2021 to which is attached a letter dated 18 December 2020 co-signed by [Dr E], Consultant Child and Adolescent Psychiatrist and [Mr F], Senior Clinical Psychologist, both of [Service B] at Hospital A. The applicant also relied upon the following:

·report of Dr E dated 14 September 2021;

·report of [Mr G], Paediatric Endocrinologist dated 17 September 2021; and

·report of Mr F dated 11 October 2021.

THE LEGAL PRINCIPLES

13In 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.

14 Gillick competence is established if G6 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")).

15In Re Kelvin (2017) 351 ALR 329 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.

THIS APPLICATION

16G6 meets the diagnostic criteria for Gender Identity Disorder of Childhood, Gender Incongruence of Childhood, and Gender Dysphoria in Children.

17There is no dispute between G6, the applicant, the third respondent or G6's medical practitioners, all of whom consider that stage 1 treatment should commence.

18The circumstances of G6 are that she is in the care of the applicant who has parental responsibility for her until she is 18 years of age pursuant to an order made in 2011. The consent of the first and second respondents to treatment has not been obtained. The applicant understands that the first and second respondents are generally supportive of G6 receiving treatment. Counsel submitted the applicant's understanding is the first and second respondents are supportive of G6 and have bought female clothes for her, but they may not understand the purpose of the application. As discussed below G6 is not competent to consent to treatment.

19In the circumstances set out above I consider it necessary and accordingly propose to determine the application under the welfare jurisdiction of the Court pursuant to s 162 of the Family Court Act 1997 (WA) ("the Act"). In doing so I shall have regard to the best interests of G6 as the paramount consideration.

SHORT HISTORY

20G6 has had a strong preference for stereo-typically female clothing, toys and activities since toddlerhood and made statements such as "I am a girl" since she was five years of age. In 2020 G6 socially transitioned at school and with friends outside school. Prior to her transition she had experienced suicidal thoughts, but since has showed a significant improvement in her happiness and behaviour.

21G6 has been cared for by her foster mother since she was three months of age.

22The first and second respondents are both said to have a learning disability and substance use problems.

23G6 previously had [Medical Condition A] diagnosed when she was four months of age which was [operated on] when she was about five months old. She has had an annual follow-up by a Hospital A [specialist] since, to monitor her continued healthy development.

24On 18 December 2020, Dr E and Mr F wrote to the applicant providing a report on the assessment and treatment recommendations by Service B of the Hospital A multidisciplinary team with regard to G6's female gender identity and Gender Dysphoria diagnosis. They reported that G6 has identified as a female since early childhood and is showing stable and clear female gender identity as she grows older.

25Dr E and Mr F reported G6 shows an increase and intensification of Gender Dysphoria as she experienced the earlier changes of puberty. She is highly distressed by her body changes and strongly requested to be supported to commence puberty suppression treatment.

26G6 was first seen at Service B in July 2016 when she was initially assessed and later that year by a Service B Consultant Endocrinologist. She was again referred to Service B in February 2017 and was seen by Mr F in 2018. G6 was re-referred in 2020 by which time she had socially transitioned.

27Dr E and Mr F reported that access to puberty suppression treatment is urgently needed to prevent deterioration in G6's mental health and a delay or refusal of access to puberty suppression would be harmful to her.

IS G6 GILLICK COMPETENT?

28Dr E considered whether G6 has the maturity and intellectual capacity to understand the short-term and long-term implications of receiving treatment. She presented her assessment of G6's capacity and in an 11-point format as set out in her report. Dr E opined that G6 does not yet demonstrate capacity to consent to stage 1 puberty suppression. The adults involved in G6's care, being her foster mother, her departmental case worker and the clinicians at Hospital A Service B have endeavoured to weigh up the risks and benefits considering G6's best interests.

G6'S BEST INTERESTS

29G6 has the diagnoses as set out at [16] above.

30G6 lives with her foster mother and has limited, supervised contact with the first and second respondents, which she enjoys very much. G6 thrived during 2020 attending Year 6 at her new school, as a girl. This year, she is in Year 7 at [School A] with good school attendance. The school is supportive of her social gender transition.

31Dr E reported that G6 expresses a strong sense that she is female and wishes to live entirely as a female and be recognised as a female by others. She is unhappy with male body characteristics and Gender Dysphoria continues to be distressing for her.

32Dr E reported G6 told her on 25 November 2020 that if she could not have the puberty suppression treatment she would not want to be alive. Dr E reported in the short-term she expected G6 to experience immediate psychological relief in commencing puberty suppression treatment. In the medium-term the relief and reassurance of puberty suppression medication is reasonably likely to prevent the worsening of her Gender Dysphoria. In the long-term G6 is likely to remain stable in her female gender identity.

33Dr E reported should G6 not be able to commence puberty suppression treatment it was anticipated she would experience severe disappointment and a sense of sadness, injustice, unfairness, confusion and anger. There would likely be an exacerbation of depressive and anxiety symptoms.

34Dr E reported as to G6's ability to understand the short-term and long-term implications of receiving treatment. In many aspects of the 11-point format, she reported as to G6's ability to understand the treatment and that she has a reasonable age appropriate level of understanding thereof. She reported G6 has the capacity to participate very meaningfully in medical decision making and it is essential to listen to her wishes and give them weight.

35Dr E reported:

91.In my professional opinion [G6] has the clear ability to express her identity and wishes, and participate meaningfully in decision making about puberty suppression. She wants to commence it, and will be distressed and disadvantaged, indeed harmed, if she is not permitted to commence it. She does not yet have capacity to give informed consent to gonadotrophin releasing hormone analogue puberty suppression treatment, mainly related to her appreciation of uncommon risks and her ability to imagine different future possibilities. In my opinion it is in her best interests to be authorised to commence treatment according to her strong, longstanding wishes, and with the support of her foster mother.

CONCLUSION

36I have considered the evidence in the context of the considerations set out at s 66C of the Act insofar as they are relevant. I find it is in G6's best interests that there be an order that the applicant have leave to authorise the administration of stage 1 hormone blocker treatment to G6 as recommended by her treating medical practitioners at Hospital A.

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

RM

Associate

3 DECEMBER 2021