Re: G8

[2022] FCWA 66

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: RE: G8 [2022] FCWA 66

CORAM: DUNCANSON J

HEARD: 15 MARCH 2022

DELIVERED : 1 APRIL 2022

FILE NO/S: [Redacted]

BETWEEN: THE MOTHER

First Applicant

AND

THE FATHER

Second Applicant

AND

SERVICE A

Respondent

Catchwords:

CHILDREN - where the child who is 15 years of age has been diagnosed with Gender Dysphoria and wishes to access stage 2 gender affirming hormone treatment - where there is no dispute or controversy - 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 Law Act 1975 (Cth) s 60CC, s 67ZC
Health Services Act 2016 (WA)

Category: Reportable

Representation:

Counsel:

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

Solicitors:

First Applicant	:	Law Firm A
Second Applicant	:	Law Firm A
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: G8 has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1These proceedings concern [G8] who is 15 years of age. G8 was born male but strongly desires to be a female. G8 has been diagnosed with Gender Dysphoria. In these reasons I shall refer to G8 using the female pronoun.

2On 15 March 2022 I made the following declaration and orders:

1There be a declaration that the child [G8] ("the child") born [in] 2007 is competent to give consent to the administration of Stage 2 cross hormone treatment to her for her condition known as "Gender Dysphoria".

2The proposed stage 2 hormone 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 10 December 2021 the applicants, G8's mother and father, sought orders which included:

•a declaration that G8 is competent to give consent to the administration of stage 2 cross hormone treatment to her for her condition known as Gender Dysphoria;

•in the alternative to the above, there be a declaration that it is in the best interests of G8 to be administered stage 2 cross hormone treatment for her condition; and

•the proposed stage 2 treatment being the administration of oestrogen 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 [Service A]. Service A is the health service provider for [Hospital A] under the Health Services Act 2016 (WA). The first respondent neither consented to nor opposed the orders but considered they were in G8's medical best interests, acknowledging that G8's best interests may go beyond her medical interests.

6On 2 February 2022 I made an order that G8 be independently represented at the further hearing of these proceedings. G8 is represented by an Independent Children’s Lawyer, [Ms C]. The ICL supports the orders sought by the applicants.

BACKGROUND

7G8's parents commenced living together in 2006 and married [in] 2011. G8 lives with her parents, both of whom are involved in her care and supervision.

8The mother deposed that as a very small child, G8 wanted to wear female clothing and told people she was a "girl on the inside". G8 was referred to a paediatrician and child psychologist and subsequently to [Hospital B] [Service B] in May 2015.

9G8 sees a gender specific clinical psychologist on an ongoing basis. G8 began puberty blockers in October 2019 in consultation with her parents and [Service C]. G8 was described as "very keen" to commence stage 2 treatment.

10[In] July 2021 with the consent of G8's parents, G8's change of name was registered.

11G8’s parents are of the view that it is essential for G8 to proceed with stage 2 treatment for her health and wellbeing, particularly bone density, to increase her weight and for her mental/social wellbeing.

THE EVIDENCE AND DOCUMENTS RELIED ON

12G8’s parents relied on the mother's case information affidavit filed 10 December 2021. They also relied on reports from the following practitioners:

•[Ms E], Clinical Psychologist, dated 8 March 2022;

•[Dr F], Consultant Child and Adolescent Psychiatrist, dated 11 March 2022; and

•[Dr G], Paediatric Endocrinologist, dated 11 March 2022.

THE LEGAL PRINCIPLES

13In 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.

14Further 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.

15If 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.

16In 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.

17 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")).

SERVICE A POSITION

18On 27 July 2021 the Chief Executive of Service A wrote to practitioners at Service C. 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 C]

·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 C]

·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 C].

This change is effective immediately.

THIS APPLICATION

19G8 meets the diagnostic criteria for Gender Dysphoria (in Adolescence), Gender Incongruence of Adolescence and Adulthood and Transsexualism.

20There is no dispute between G8, her parents or her treating medical practitioners, all of whom consider that stage 2 treatment should commence. As discussed below, the medical practitioners involved in G8's care report that she is Gillick competent to consent to stage 2 treatment. That is not determinative of the matter, by reason of the Service A policy, as G8 has not yet attained the age of 16 years. In those circumstances an application to the Court was necessary and the Court must determine whether it is in the best interests of G8 to authorise treatment.

21Accordingly, I shall determine the application pursuant to s 67ZC of the Family Law Act 1975 (Cth) ("the Act"). In doing so I shall regard the best interests of G8 as the paramount consideration.

IS G8 GILLICK COMPETENT?

22Dr F is G8's regular Case Manager and Psychiatrist [at] Service C. She has seen G8 regularly since August 2018. Dr F reported that over the last three and a half years G8 has continued to express a strong and clear, unequivocally female gender identity, and an intense and consistent wish to commence oestrogen hormone treatment as well as to have future genital gender-affirming surgery.

23As to whether G8 has the maturity and intellectual capacity to understand the short-term and long-term implications of receiving treatment, Dr F provided a comprehensive assessment.

24Dr F reported G8 is able to comprehend and retain both existing and new information regarding the proposed treatment and is able to provide a full explanation, in terms appropriate to her level of maturity and education, of the nature of treatment. Dr F described G8 as familiar with accurate medical information and that she showed herself to be well-informed.

25Dr F reported G8 is able to describe the advantages and disadvantages of treatment and is able to weigh those in the balance and arrive at an informed decision about whether and when she should proceed with the treatment. Dr F described G8 as showing a balanced weighing-up of the advantages of oestrogen treatment and described her decisions based on this weighing up of risks and benefits as rational.

26Dr F reported G8 is able to understand that the decision to proceed with treatment could have consequences that cannot be entirely foreseen at the time of the decision and she can acknowledge that treatment would not necessarily address all of the psychological and social difficulties she had before its commencement.

27Dr F reported G8 is free, to the greatest extent possible, from temporary factors that could impair her judgement in providing consent to treatment. G8 has had over two years to thoroughly consider her decision in private and Dr F reported it is not a pressured or impulsive decision.

28Dr F reported G8 has discussed in detail her understanding of the impact of oestrogen on fertility, and she knows that it is possible to feel regret about permanently reduced or lost fertility, particularly as an adult who is reaching middle-age.

29G8 is able to appreciate the possibility of regret about gender transition in the short, medium and long-term and is able to understand that people's wishes and feeling can change as they grow older.

30G8 is able to appreciate the possibility of disappointment about the incomplete and imperfect effects of treatment and Dr F reported G8 has a very clear understanding in this respect.

31Dr F reported that in her professional opinion G8 has capacity to give informed consent to oestrogen treatment, that is she is Gillick competent in this regard.

32Ms E reported as to whether in her view G8 has the maturity and intellectual capacity to understand the short and long-term implications of receiving treatment. She is satisfied G8 is a competent minor with respect to having the intellectual capacity and emotional maturity to make stage 2 cross-sex hormone therapy (specifically oestrogen) decisions.

33Ms E has not seen any evidence that G8 is being unduly influenced by any other person or circumstances and noted that G8 is strongly supported by both of her parents. Ms E reported she considers that G8 clearly demonstrates the capacity to consent to stage 2 gender affirming treatment, oestrogen.

34I have considered the evidence of the medical practitioners which I have summarised above. I am satisfied, on the basis of that evidence that G8 is competent to consent to stage 2 treatment, oestrogen.

35Having regard to G8's age, as she is not yet 16 years of age, I proceed to make a determination of this application according to the best interests of G8. The best interests of G8 are determined taking into account the considerations as set out in s 60CC(2) and (3) of the Act insofar as they are relevant.

G8'S BEST INTERESTS

36G8 has the diagnoses as set out at [19] above. G8 lives with her parents. Dr F referred to G8's parents' description of their loving support for G8, and their absolute conviction that commencing oestrogen well before the age of 16 years will be beneficial to G8's mental health, school learning and social relationships with peers and her bone density and overall health.

37Dr F referred to G8's expression of clear and consistent wishes to commence oestrogen at some time before the age of 16 years. Ms E referred to G8 having been consistent in expressing her female gender identity and in living her life essentially in female ways and as a female.

38The ICL met with G8 on 15 March 2022. The ICL described G8 as a mature and considered young person who confirmed it would be a significant weight off her shoulders to have a decision made about her treatment commencing as soon as possible.

39Dr F reported at [84]:

In my professional opinion, [G8] has a clear and stable female and feminine gender identity; expresses clear and consistent wishes to commence oestrogen at some time before age 16, and to have authorisation as soon as possible so that she can make her own decision about timing; 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; would benefit medically as oestrogen treatment is expected to improve her bone density; and has capacity to give her informed consent to oestrogen treatment. In my opinion it is in her best interests to be authorised to commence oestrogen at this time.

40Ms E supports G8's access to stage 2 gender affirming treatment and is of the view that withholding treatment would ultimately be harmful to G8.

CONCLUSION

41I have considered the evidence in the context of the considerations as set out in s 60CC of the Act insofar as they are relevant

42I find that it is in G8's best interests that there be an order that the administration of stage 2 hormone treatment, oestrogen, to G8 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

1 APRIL 2022