Re: Janson

[2015] FamCA 499

FAMILY COURT OF AUSTRALIA

RE: JANSON [2015] FamCA 499

FAMILY LAW – CHILDREN – Where both parents sought a declaration that their child had sufficient competence to consent to further treatment for Gender Dysphoria – Where the child has already received Phase 1 therapy – Where there is no controversy in these proceedings over the medical evidence – Where the Court is satisfied the child has sufficient competence and understanding to grant informed consent to all medical treatment necessary to treat the condition of Gender Dysphoria – Declared that the child is able to consent to Phase 2 treatment – Order made suppressing the identities of the parties and the publication of any information that would identify them.

Family Law Act 1975 (Cth), s 121

Gillick & West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie (2013) FLC 93-547

APPLICANT: The Mother

RESPONDENT: The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 27 March 2015

JUDGMENT OF: Austin J

HEARING DATE: 27 March 2015

REPRESENTATION

By Court Order the names of counsel and solicitors have been suppressed

Orders

BY CONSENT, IT IS ORDERED THAT

1.The Court declares that Janson (formerly known as …), born … 1998, (“the child”) is competent to consent to the administration to him of Phase 2 treatment for the condition known as “Gender Dysphoria”.

2.So as to protect the child:

a.The child’s full name, the names of his family members and his medical practitioners, this Court’s 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the State in which the proceedings were initiated and any other fact or matter that might identify the child shall not be published in any way.

b.Only anonymised Reasons for Judgment and Orders shall be released by the Court to non-parties without further contrary order of a Judge.

c.No person shall be permitted to search the Court file in these proceedings without first obtaining leave of a Judge.

3.To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the applicant and respondent have leave to publish to the child’s treating medical practitioners a copy of these Orders and a copy of the Reasons for such Orders, which are not anonymised pursuant to Order 2 hereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Janson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order the File Number is suppressed

The Mother

Applicant

And

The Father

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1.The proceedings before the Court were commenced by the mother and father of a child who is now sixteen and a half years old. 

2.The document which initiated the proceedings was entitled “Application for Consent Orders” and was filed on 2 December 2014.  In essence, the parents of the child jointly sought orders from the Court that were designed to enable the child to embark upon a further stage of treatment for that child’s condition of Gender Dysphoria.  Regrettably, the proceedings were adjourned on a couple of occasions to address some anomalies in the evidence, but that evidence is now settled.

3.The order which is now sought jointly by the mother and father has been tendered and forms Exhibit A to the proceedings.  In essence, they propose that the Court declare their child has sufficient competence to consent to further treatment for the diagnosed condition I have already described. 

4.Because the application was for an order relating to a medical procedure, the Family Law Rules 2004 (Cth) required service of the parties’ application upon the relevant government department (“the Department”). The proceedings were last before the Court on 25 February 2015 and were adjourned for a number of weeks to enable that service to be effected.

5.The solicitor appearing for the mother informed the Court that service was achieved in accordance with those former orders and, although service has not been formally proven, an email received from the Department (which now forms Exhibit B in the proceedings) confirms the Department’s service of relevant documentation, and in particular, the medical evidence upon which the parents now rely to prosecute their application.

6.It is clear from the emails that have passed between the Court and the Department that the Department does not intend to intervene in the proceedings and raises no objection to the orders sought for the child by the parties.  In such circumstances, I am content to determine the proceedings without further delay. 

7.I turn, therefore, to the medical evidence.

8.The subject child, as I have said, is now sixteen and a half years of age, having been born in 1998.  The child was born a female. The child, however, began identifying as male during adolescence and now wishes to be known by the name of “Janson”. 

9.The parties to these proceedings, who are separated but, happily, are able to co-parent their children cooperatively, have been supportive of the child in his identification as a male person. They have facilitated his attendance upon numerous specialists to whom I now wish to refer.

10.The child was referred to Professor C, a paediatric endocrinologist with extensive experience. In turn, Professor C referred the child to Professor N, a paediatric psychiatrist with specialist expertise in gender identity disorder.  Professor N confirmed that the child suffered from the condition generally known as Gender Dysphoria, but a second specialist opinion was sought from paediatric psychiatrist, Dr L, for the sake of safety.

11.Professor C confirms that Dr L confirmed Professor N’s findings about the child’s sufferance from Gender Dysphoria and a report from Dr L dated 16 January 2014 confirmed that, not only did Janson suffer from Gender Dysphoria, which condition is recognised in the Diagnostic and Statistical Manual of Disorders Version 5, but that, in his opinion, the child was “Gillick competent” and “able to consent to opposite hormone therapy”. 

12.The reference to “Gillick competence” was no doubt a reference to the well-known English authority of Gillick & West Norfolk and Wisbech Area Health Authority [1986] AC 112, in which Lord Scarman said:

… the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed…until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.

13.More recently, the Full Court of the Family Court has re-considered such issues in Re: Jamie (2013) FLC 93-547. That case pertained to a child who, like the subject child in these proceedings, suffered from Gender Dysphoria.

14.In that case, Chief Justice Bryant said at [140]:

In relation to stage two treatment, as it is presently described, court authorisation for parental consent will remain appropriate unless the child concerned is Gillick competent …  If the child is Gillick competent, then the child can consent to the treatment and no court authorisation is required, absent any controversy.

15.Justice Finn said at [188]:

If the court was completely satisfied of the child’s capacity to consent to stage two treatment, it would be unnecessary for it to have to authorise the treatment.  That could be left to the child.

16.Justice Strickland said at [196]:

Whether the child is able to fully understand and give informed consent to stage two treatment, and thus court authorisation is not required, is a threshold issue that the court must decide.

17.The medical evidence placed before the Court proves that the child in these proceedings has already been receiving what is commonly known as Phase 1 or Stage 1 therapy as a remedial response to Gender Dysphoria.  The question at hand is what order, if any, should be made to enable the child to embark upon Phase 2 therapy to address the condition. 

18.The medical evidence previously placed before the Court did not satisfactorily address that issue, which necessitated an adjournment, but in the interim the parties have procured further evidence which is directed to that precise issue.

19.

In the prosecution of the application, the parties now jointly rely upon the two affidavits filed in the proceedings by the mother on 2 December 2014 and

26 March 2015, together with the affidavit of Professor C filed on

26 March 2015. 

20.As is already known, both parents fully support the child in his decision to seek male gender-affirming treatment.  Referring back, therefore, to the comments of the Chief Justice in Re: Jamie, there is an absence of controversy in these proceedings about the status of the medical evidence and the orders that should be made by the Court to enable the child’s embarkation on Phase 2 therapy.

21.The updated medical evidence provided by Professor C provides a description in summarised form of Phase 1 and Phase 2 therapy. Without slavishly recording that evidence in these reasons, suffice it to say, Phase 1 therapy involves pharmacological treatment which is fully reversible, but Phase 2 therapy comprises both partially reversible interventions and entirely irreversible interventions such as surgical procedures. 

22.The child’s psychiatric response to his current predicament has been more recently reviewed by another consultant psychiatrist, Dr B.  A report from Dr B dated 26 March 2015 is annexed to the most recent affidavit of the mother, filed on 26 March 2015.  Dr B refers to his own extensive experience with Gender Dysphoria and confirms the difficulty faced by this child during his earlier teenage years.  Dr B confirmed that the child began the process of seeking gender changes about 18 months ago, which entailed his receipt of hormone-blocking treatments.

23.To quote Dr B:

My conclusion is that [the child] has reached a sufficient understanding and has the intelligence to be capable of making a mature decision and giving informed consent to moving from Phase 1 to Phase 2 of therapeutic interventions – as described by Professor [C] in her document concerning therapeutic interventions in gender dysphoria cases dated

23 March 2015.

24.

That reference to the most recent document of Professor C is a reference to her update report, which is annexure B to her affidavit filed on

26 March 2015.

25.I am satisfied the child has sufficient competence and understanding to grant informed consent to all medical treatment necessary to treat the condition of Gender Dysphoria from which he suffers, in the manner contemplated by the seminal authority of Gillick. 

26.There is, however, an anomaly that I need to address.

27.Nowhere in Professor C’s evidence does the Professor specify with any precision the nature of the treatment which is planned to be administered to the child as part of Phase 2 treatment for his condition.  There is therefore a lack of correlation between the medical evidence and the precise terms of the order proposed by the mother and father for the child. 

28.They accept that a declaration should be made that their child is competent to consent to Phase 2 treatment, but they proposed that the order administered by the Court be so specific as to refer to “administration of Testogel (topical testosterone gel) and intramuscular testosterone-depo (Reandron)”. I decline to make the order in those terms, since any order expressed in those precise terms would not correlate with the medical evidence. Instead, I intend to make a declaration that the child is sufficiently competent to consent to Phase 2 treatment as prescribed by Professor C in her continuing treatment of him. 

29.It is also important, having regard to the sensitivity of the child’s condition and the treatment required, that attendant orders be made suppressing the identities of the parties and the publication of any information that would identify them. 

30.For those reasons, I make the following orders.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 March 2015.

Associate: 

Date:  29 June 2015