Re: Imogen (No. 4)

[2020] FamCA 396

FAMILY COURT OF AUSTRALIA

RE: IMOGEN (NO. 4) [2020] FamCA 396

FAMILY LAW – CHILDREN – Medical Procedures – Where an organisation applies for leave to intervene in the proceedings – Where the organisation raises concerns in relation to the current orthodox medical treatment of children diagnosed as having Gender Dysphoria – Where the organisation wishes the opportunity to adduce evidence in this case wider than the child’s individual circumstances – Where the mother’s expert has the professional and academic qualifications and connections to provide to the court evidence of a wider nature so far as that is relevant – Where the application by the organisation is dismissed.

Children and Young Persons (Care and Protection) Act 1998
Family Law Act 1975 (Cth)
Family Law Rules

Department of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR 218
Re: Kelvin (2017) FLC 93-809

APPLICANT: D Group

RESPONDENT: The mother

RESPONDENT: The father

INTERVENOR: Australian Human Rights Commission

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 21 May 2020

JUDGMENT OF: Watts J

HEARING DATE: 14 May 2020

REPRESENTATION

By Court Order the solicitor’s names have been suppressed

Orders

1. The Application in a Case by the D Group filed 27 March 2020 for leave to intervene in the proceedings is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Imogen (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA

D Group

Applicant

And

The mother

Respondent

And

The father

Respondent

And

Australian Human Rights Commission

Intervenor

REASONS FOR JUDGMENT

Introduction

1. Imogen is 16 years of age. She has been diagnosed by her treating doctors as having gender dysphoria and is receiving stage 1 puberty blockers. She wishes to move to stage 2 gender affirming hormonal therapy with the support of her treating doctors and her father.

2. Her mother opposes her receiving that treatment.

3. One of the questions in this case that may need to be addressed is whether Imogen is Gillick competent. Another may be whether a court order is necessary for Imogen to have gender affirming hormone therapy. This potentially could involve a reconsideration of whether or not stage 2 treatment (and possibly stage 1 treatment) is non-therapeutic.

4. The mother has been given permission to advance expert evidence from Dr B who will interview the parents and Imogen.

5. Dr B has written academically, questioning whether gender affirming therapy should be the gold-standard treatment for gender dysphoria and has argued that current therapies can gloss over deeper and more complex relational and psychological difficulties.

6. Subject to any objection as to relevance, Dr B has indicated that he intends to provide evidence regarding the current view amongst the medical profession, both in Australia and overseas, about the treatment for gender dysphoria in adolescents.

The Application for leave to intervene by the D Group

1. On 27 March 2020, D Group filed an Application in a Case seeking leave to intervene in the proceedings pursuant to rule 6.05 Family Law Rules 2004.

2. Relevant to this application, on 27 March 2020 I made the following notation and order:

   15.I note that the application by the [D Group] to be granted leave to become a party to the proceedings is opposed by the father. The mother neither supports nor opposes the application. I note that the Independent Children’s Lawyer has informed me, although he does not oppose or consent to leave being granted to the [D Group], that Imogen herself has expressed the view that she does not see why an outside organisation of that nature should be involved in this case.

   16.On or before 1 May 2020 the [D Group] are to forward to my chambers and the other parties, written submissions as to why they say it is appropriate that leave should be granted based on the evidence they have filed.

3. When this application was heard on 14 May 2020, the position of the father, the mother and the Independent Children’s Lawyer (“ICL”) had not altered from that in notation 15.

4. The D Group filed an affidavit in support on 27 March 2020 and written submissions on 4 May 2020.

AFFIDAVIT MS G SWORN 26.3.20

1. Ms G is the principal solicitor and public officer of the D Group, which is an incorporated association and registered charity. She frankly indicates that she has been an advocate, for several years, raising concerns in relation to the current orthodox medical treatment of children presenting with gender dysphoria. Ms G in 2017 co-authored a paper about Trans Activism. Ms G annexes to her affidavit part of the paper she co-authored.

2. Ms G says she has had contact with parents who are deeply distressed by the irreversible harm being done to their children by the medical interventions they are receiving and says “I am told by many of these parents that they are unable to voice their concerns elsewhere for fear of persecution”. Ms G asserts that the National Association of Practising Psychiatrists and various other highly conventional health professionals (apart from one not identified) have publicly expressed concerns about the adoption of a gender affirming model as the best practice management protocol with children presenting with gender dysphoria. Ms G says she is aware that a number of these individuals have been the subject of anonymous complaints to the Health Care Complaints Commission, although she is not aware that any of those complaints have been successful. The D Group also holds concerns that scientific discourse and rigor is being actively undermined by media reporting of the debate.

3. Reference is made to a group of health professionals who are speaking out and have recently formed a society. Dr B is on the advisory board of that society. He says this organisation has a membership of around 100 clinicians world wide.

4. Whilst Ms G is not medically qualified, she opines that the evidence in this case indicates that Imogen has presented with Rapid Onset Gender Dysphoria (ROGD), a phenomenon she asserts was first identified by Dr Lisa Littman in 2018. Ms G refers to the research of Professor E in the Australian context which indicates “[quote withheld]”. The D Group suggest that details of this research should be available to the court for people who are contemplating medical interventions for gender dysphoria.

5. During submissions I raised the previous involvement of Professor E in this case. The parties agreed that the mother had suggested Professor E as a mediator. The father had rejected that proposal on the basis of her published views on gender dysphoria.

6. The ICL points out that Dr B and Professor E have a certain connection.

7. The D Group is also connected to a group of volunteer women from across the world responsible for drafting the declaration on women’s sex-based rights (“the declaration”).

8. Article 9 is summarised in the following terms:

   States should recognize that medical interventions aimed at the ‘gender reassignment’ of children by the use of puberty suppressing drugs, cross-sex hormones and surgery do not serve the best interests of children. Children are not developmentally competent to give full, free and informed consent to such medical interventions, which carry a high risk of long-term adverse consequences to the physical and psychological health of the child, in which may result in permanent adverse consequences, such as sterility. States should prohibit the use of such medical interventions upon children.

   (As per original)

   The full text of Article 9 is annexed to Ms G’s affidavit.

9. The declaration has been signed by a number of women’s organisations in Australia.

10. The D Group says it “[a mission statement of the D Group]”. It is asserted that in fact a number of trans-people have now spoken out about the dangers of medical and surgical interventions for children, including high profile individuals such as Cate McGregor. Reference is made to a petition on “change.org” started by a transgender person, Scott Newgent titled “Adult Transgender and Non-Transgender People Against Medical Transitioning Children”.

11. Ms G asserts that the current treatment by medical professionals is in breach of s 175 of the Children and Young Persons (Care and Protection) Act 1998 and submits that the Family Court must take account of the impact of aggressive trans activism on organisations established to protect human rights but who risk loss of funding should they raise objections to gender affirming management protocols.

12. The D Group argues that since the decision in Re: Kelvin (2017) FLC 93-809 in 2017, there have been many developments that raise questions about the merits of gender affirming in all cases of gender dysphoria in children and young people. She does not go on to identify what those questions are apart from referring to “stories” from the United Kingdom, United States and Sweden which have not been adequately reported and publicised within Australia.

13. Reference is made to current litigation in the United Kingdom which Ms G says arises out of “whistle blowing and resignations by professional staff of the NHS Tavistock and Portman Gender Identity Service (GIDS). Apparently the plaintiffs in that litigation are a former staff member and a former client. It is asserted that the case has progressed to the UK High Court:

    The applicants expect the review to thoroughly re-assess minors’ capacity to consent to medical and surgical interventions such as puberty blockers, cross-sex hormones and sex re-assignment surgeries, and revisit the notion of the ‘mature minor’ promulgated 35 years ago in Gillick v West Norfolk and Wisbech Area Health Authority.

    There is no precise indication of the stage this litigation has reached or evidence that the expectation of a possible review of the Gillick test is well founded.

14. Reference is also made to a group of Swedish physicians who have recently written to Australian political leaders about “the level of backlash in Sweden against laws enabling children under 18 years to undergo sex reassignment, medical and surgical interventions, something the physicians described as ‘a big experiment’ at risk of becoming one of the country’s worst medical scandals”.

15. If leave is granted, the D Group seeks the following orders:

    1.The parties do all things necessary to instruct the relevant health professionals to cease providing hormone treatment to the child.

    2.No further decisions are taken in relation to the child’s medical treatment without consultation and consent of the respondent mother.

    3.The mother be granted leave to provide a copy of Dr C’s affidavit and accompanying report dated 17 February 2020 to the Health Care Complaints Commission.

16. There is a further order sought that Dr B prepare a report (and that order has now been made on the application of the mother).

Submissions on behalf of D Group

1. The D Group asserts it is in a unique position to provide relevant information which might not otherwise come to the court’s notice and submits that it is essential for the Family Court to take judicial notice of international developments when making decisions in the best interests of children presenting with gender dysphoria.

2. It is argued that in Re: Kelvin, where there were five intervening parties in addition to the applicant and the ICL, only the Department of Family and Community Services (FACS) opposed the application and they have chosen not to participate in these proceedings.

3. It is submitted that this case can be distinguished from Re: Kelvin in the following ways:

   a.in this case the mother has not consented to the treatment;

   b.in this case there has been no judicial determination of Gillick competence;

   c.there is concern that Stage 2 hormone intervention was fast-tracked and commenced unlawfully without the mother’s consent;

   d.there are indications that the child in this case has experienced Rapid Onset Gender Dysphoria (ROGD) that may have arisen because of social contagion;

   e.there is no indication of suicidal ideation or self-harm by the child according to the medical practitioner prescribing oestrogen;

   f.there is a context of family breakdown and domestic violence that suggests other factors at play in relation to the child’s mental health that have not been adequately considered;

   g.since the decision in Re Kelvin the treatment guidelines developed by WPATH and the affirming model of treatment have come under scrutiny and are being questioned by many medical authorities, particularly in cases of ROGD;

   h.recent studies of gender dysphoric children and young people indicate a disproportionate number have Autism Spectrum Disorder (ASD), for whom medical transition may not be the most appropriate course.

4. The D Group further submit that:

   ·The account of Imogen’s behaviours since infancy suggests a diagnosis of ASD (possibly Asperger Syndrome) should be investigated.

   ·Their contact with highly qualified health professionals both locally and overseas places them in a position where they can provide material to the court to assist the court.

   ·Re: Kelvin was a stated case and not a defended case and therefore the court should not be guided entirely by that case which was based on limited and largely untested medical evidence.

5. The D Group want to be able to provide the court with “a different prospective in relation to the merits of stage 2 hormone intervention and the assessment of Gillick competence”.

6. The D Group submit that it is of “significant concern” that Imogen commenced stage 1 hormone intervention in April 2019 at Clinic F under Dr H and then commenced stage 2 hormone intervention under Professor J on 9 September 2019 “in quick succession without the mother’s consent”.

7. The D Group draws attention to [83] of Re: Kelvin which found that stage 2 intervention was not an emergency medical treatment as provided for by s 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

8. The D Group also suggests that it is possible the mother is in some way being constrained in challenging Imogen’s current treating medical practitioners. Given that it is not controversial that the mother has reported those professionals to their disciplinary body (or intends or wishes to), there is no weight in that submission.

9. The D Group points out that in Re: Kelvin the Attorney-General submitted that consent was not a defence to assault if a child is not Gillick competent (in that case I had found that Kelvin was Gillick competent). In this case the determination of Gillick competence is in issue. Ms G asserts that Dr C’s assessment of Gillick competence (as set out in paragraph 16 of his affidavit) is based on very limited material which is insufficient. On the face of it, Dr C has the expertise to express that opinion. The mother may challenge Dr C’s opinion depending on what Dr B might say.

10. Ms G highlights what she asserts are inadequacies in paragraph 12 (of Dr C’s report) and challenges the assertion that “the issues of impaired fertility and ultimate infertility was discussed prior to me seeing Imogen by K Centre”. Ms G submits there is no detail on how the impact on her sexual functioning has been explained to Imogen given that presumably Imogen is sexually inexperienced.

11. Having referred to [148] in Re: Kelvin, it is submitted:

    Just as the court responded in Re: Kelvin to evidence of the risks of not treating children for gender dysphoria, the court must now update its knowledge to take account of evidence of the harms caused by hormone interventions. There is now evidence that even Stage 1 intervention, that was regarded as fully reversible at the time of the decision in Re: Jamie, has harmful long-term effects.

12. Ms G argues that indeed in the current matter, Professor J gives as his rationale for moving quickly to prescribe the oestrogen the need to offset the harmful effects of stage 1 intervention on bone density. Ms G argues however that whilst the administration of stage 2 drugs might ameliorate the effect of the stage 1 treatment, it brings with it significant long term health risks including compromised fertility. Ms G says the D Group would want to introduce evidence that the risks of interventions are not outweighed by the risks of not treating but does not specifically indicate who might provide this evidence.

13. The submission is made that:

    ·Re: Kelvin found that the High Court decision in Department of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) did not constitute a binding principle requiring the court’s authorisation of stage 2 intervention.

    ·However, Marion’s case is authority for the principle that treatment which is inappropriate or disproportionate having regard to the condition for which it is administrated, is to be considered non-therapeutic.

14. The D Group submit it wishes to produce evidence (again without saying from whom specifically) to support the notion that “hormonal intervention … is both an inappropriate and disproportionate response” and that “Neither courts or parents should approve non-therapeutic treatment likely to result in infertility and other long-term harm on behalf of a child lacking capacity to consent”.

15. The D Group’s wish needs to be considered on the basis that parties (not the ICL) are not to tender a report or adduce evidence at a hearing from an expert witness unless the court gives permission (rule 15.51(1)). The general purpose of the rules in relation to expert evidence are set out in rule 15.42 in the following terms:

    (a)       to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;

    (b)      to restrict expert evidence to that which is necessary to resolve or determine a case;

    (c)       to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;

    (d)      to avoid unnecessary costs arising from the appointment of more than one expert witness; and

    (e)       to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.

Conclusion

1. Although Ms G argues that this case does not turn on Imogen’s individual circumstances alone but rather also on the current state of medical knowledge, the focus of this case must always be on Imogen. I have some regard for Imogen’s view that she does not see why an outside organisation of the nature of the D Group should be involved in her case.

2. How much the current view of the medical profession, both in Australia and overseas, about the treatment of gender dysphoria in adolescence impacts upon the ultimate outcome shall remain to be seen.

3. Given Dr B’s professional and academic qualifications and connections, he is well placed to, at least in the first instance, provide the court with information he considers to be relevant to the determinations which need to be made.

4. The mother is in a position, should she think it important, to seek leave to adduce other evidence from experts such as Professor E if in fact that adds to information otherwise given by Dr B.

5. Dr B will provide his opinion on Dr C’s assessment of Imogen’s Gillick competence. Dr B will also likely express an opinion in relation to any issues in respect of Imogen’s impaired fertility. The mother can make submissions as to whether this case can be distinguished based upon medical evidence available now which was not available at the time of Re:Kelvin (see [172] – [175]).

1. Given my current understanding of the issues that need to be resolved in this case, I am of the view that it is in Imogen’s best interests to restrict the expert evidence to that which is necessary to resolve or determine the case and that such evidence can be adduced without the need to join the D Group as a party to the proceedings. Accordingly, the application for leave to intervene in the proceedings shall be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 21 May 2020.

Associate: 

Date:  21 May 2020