Re:Karsen

[2015] FamCA 733

FAMILY COURT OF AUSTRALIA

RE:KARSEN [2015] FamCA 733

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are the parents of a 16 year old child who was born as a natal female and identifies as a male – Where the child is not Gillick competent – Where the parents seek a Court order authorising them to consent to the child undergoing the second phase of hormonal treatment – Where the second phase of the treatment carries significant risks and has irreversible effects – Where the parents and medical experts agree that it is in the best interests of the child to undergo the second phase of treatment – Application granted.

Family Law Act 1975 (Cth)

Gillick v West Norfolk A.H.A [1986] AC 112
Re: Jamie (2013) FLC 93-547

Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

FIRST APPLICANT: The Father

SECOND APPLICANT: The Mother

INTERVENER: Director-General of the relevant Government Department

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 8 September 2015

JUDGMENT OF: Forrest J

HEARING DATE: 8 September 2015

REPRESENTATION

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

Orders

IT IS ORDERED THAT

1. The Court be closed today for the hearing and determination of these proceedings.

2. Leave is granted for the Director-General of the relevant Government Department to intervene in these proceedings.

3. Pursuant to section 100B(1) of the Family Law Act 1975 (Cth), leave is granted, nunc pro tunc, for the child, KARSEN born on … 1999 (“the child”), to sign an affidavit to be filed and read in the proceedings today.

4. Leave is granted to the applicants to file and read an affidavit of Karsen affirmed 24 July 2015.

5. Leave is granted to the intervener to file and read an affidavit of Ms R sworn 7 September 2015.

IT IS FURTHER ORDERED THAT:

1. Pursuant to Section 67ZC of the Family Law Act 1975 (Cth) the Court authorises the Applicants, the Father and the Mother, to consent to treatment on behalf of the child under the guidance of the child’s treating medical practitioners including but not limited to his endocrinologist Professor B and his psychiatrist Dr S, for the administration of Intramuscular Primoteston (testosterone enanthate) in such dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to achieve male puberty.

2. The full name of the child, the child’s family members and their occupations, the hospital, the child’s medical practitioners, the child’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify the child shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the Registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary Order of a Judge, it being noted that each party shall be handed one full copy of these Orders with the relevant details included, for provision to the treating medical practitioners and to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Karsen 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 file number is dismissed

The Father

First Applicant

And

The Mother

Second Applicant

And

Director-General, relevant Government Department

Intervener

REASONS FOR JUDGMENT

1. Karsen was born in 1999 and is now 16 years of age. He identifies as a young man, although born as a natal female. Karsen’s parents, the Mother and the Father, jointly made application to this Court pursuant to the Court’s welfare jurisdiction for Orders authorising them to consent to Karsen’s hormonal treatment in such dose, in such manner and with such frequency as determined in consultation with Karsen’s treating medical practitioners so as to induce male puberty so that Karsen can continue to develop into adult manhood in the way that he aspires to. 

2. The application was supported by affidavit evidence from each of Karsen’s parents, affidavit evidence from medical experts, Professor B, Karsen’s treating paediatric endocrinologist, Dr S, Karsen’s treating paediatric psychiatrist, and Dr M, a child and adolescent psychiatrist who provided a second opinion. In addition, an affidavit of Karsen’s was filed with the leave of the Court after I made an Order retrospectively approving the affirming of the affidavit pursuant to s 100B(1) of the Family Law Act 1975 (Cth) (“the Act”).

3. The Director-General of the relevant Government Department was granted leave to intervene in the proceedings and supported the application. Leave was granted for an affidavit by an officer of the Department to be filed and relied upon by the Director-General. That deposed to support offered to the family by the Department.

4. Detailed and thoughtful written submissions were provided to the Court by counsel for the applicants. The Court was greatly assisted by those submissions and all of the evidence, but particularly by Karsen’s own evidence.

5. At the hearing of the application, having regard to the sensitive nature of the proceedings, I acceded to the application of the parents for the matter to be heard in a closed court room. At the end of the hearing, satisfied that it was in Karsen’s best interests to immediately make the Orders sought by his parents on his behalf, I did so. I also made Orders restricting publication of identifying details and access to the Court’s file.

6. These are my reasons for making those Orders.

Some Relevant Background

1. Karsen’s loving parents were married from 1995 to 2001, separating just before Karsen’s second birthday. Karsen and an elder brother were both born as children of that marriage and continued to live with their mother after their parents’ separation whilst maintaining meaningful relationships with their father, spending regular time in his care.

2. Both parents confirm that Karsen acted like a boy in most respects as he grew through the various stages of his early childhood development. They observed that when Karsen first experienced menstruation it had a devastating emotional effect on him. From that time on, Karsen suffered frequent panic attacks, was over anxious and fretted about changes to routine.

3. Karsen’s parents enrolled him in an all-girls school, but his experience there over a couple of years of attendance was deeply troubling for him. In short, Karsen hated it. He cut his hair short, stopped shaving his legs, used male grooming products and hated wearing the girls’ uniform. He experienced bullying, self-harmed, and thought about suicide. He became very distressed and begged to be given medication so as to “stop feeling pain”.

4. In 2013, Karsen began seeing psychologists and doctors and was being treated for anxiety and depression. That treatment did little to alleviate his symptoms.

5. In October 2013, Karsen courageously told his mother that he was a boy trapped in a girl’s body and openly identified as a boy from that point on, insisting others treat him as such. Karsen consented to his mother informing his father and she did. His parents have continued to lovingly support Karsen since being informed of his identification as a male, just as they did from his birth to that point.

6. Karsen began wearing binders to help him deal with developing breasts and has worn them ever since. He sought out a new school and cut off contact with most of his former friends. He started at the new school in 2014, socially transitioning to his current male identity and doing very well there since, achieving much better educational outcomes than he had before.  

7. Karsen’s mother describes Karsen’s social transition at that point as being a “revelation”. She says that:

   [A]fter years of feeling like I was losing him, I felt as if I had my child back.

8. Karsen’s name was changed on his birth certificate, his student ID card and his Medicare card.

9. Karsen began to see a new GP. She was understanding and referred him to Dr S and Professor B who run the Gender Clinic at the X Hospital. In July 2014, reversible hormone treatment to block female puberty was commenced. This is described as Phase 1 of the treatment of people born as natal females who identify as male. Its effects include the cessation of menstruation.

10. Karsen’s mother says that this has had a positive effect on Karsen with him being less anxious and much happier since he has not been menstruating. She says he has been progressively happier as he has moved along the road to becoming physically male. Karsen’s father says he has noticed Karsen is more relaxed and comfortable with himself, is more outgoing and confident as well.

11. Professor B has determined that there is no endocrine or genetic abnormality which may explain Karsen’s gender identification. Dr S reports finding “no evidence of any cultural or personal advantage for [[Karsen’s]] cross-gender identification”. He reports that Karsen expresses strong and persistent cross-gender identification and identifies strongly as a male.

12. Karsen has now been receiving pubertal suppression treatment for over a year and, according to Clinical Practice Guidelines put into evidence attached to Professor B’s affidavit, is eligible to commence the next phase of the treatment which is intramuscular injections of testosterone every 2 weeks, increasing in dosage at six monthly intervals over a period of time. Pubertal suppression continues whilst the second phase of the treatment is being administered. The intramuscular injections are a lifelong requirement with this treatment.

13. Treatment with intramuscular testosterone induces irreversible physical changes. Those include the development of increased muscle mass and a reduction in fat mass, increased facial hair and acne, probable complete cessation of menses, deepening of the voice, temporary or permanent decreased fertility, and enlargement of the clitoris. It can also lead to male pattern baldness.

14. The treatment carries with it increased risk of adverse outcomes such as breast or uterine cancer, elevated red blood cell count, stroke and heart attack. Professor B also says there is a “moderate to high risk of severe liver dysfunction”. She goes on to say that the risks associated with treatment cannot be reduced and very careful monitoring is essential.

15. Dr S also points out that treatment with testosterone is a known cause of mood swings and low mood and increases the risk of agitation and aggression. However, he says that these risks can be reduced through ongoing psycho-education and psychological support and therapy, which is what Karsen is currently receiving from Dr S. Importantly though, Dr S points out that Karsen has no history of “premorbid aggression and violence” which means the likely benefits of the proposed treatment outweigh the risks of the proposed treatment in this respect. 

16. The doctors say the proposed treatment is recommended because it is the only treatment for natal females who identify as male and want to live as males. Unsurprisingly, the doctors say that any surgical intervention should only be organised, with Karsen’s consent, after he turns 18 years of age. However, they report that Karsen is “strongly desirous” of commencing the second phase of treatment now and that it would be in Karsen’s best interests to do so.

17. Dr S considers it unlikely that Karsen will desist from his strong identification as a male and his desire to access the treatment. The doctor expresses the view that allowing the treatment now will further reduce the risk of Karsen experiencing future mental health problems such as low mood, anxiety, suicidal ideation and self-harming behaviours and experiencing social isolation that can lead to such mental health problems. Significantly, the doctors also express the view that if Karsen does not access the treatment regulated through his treating doctors there is a risk that he could acquire the knowledge to “resort to using suboptimal hormone treatment” with consequent danger to his health.

18. Karsen says he is well aware of the effects of the testosterone treatment, including the irreversible effects. He lists those changes in his affidavit and expresses excitement at the prospect of such change, such as the breaking of his voice. He is aware of the fact that he will have to have testosterone treatment for the rest of his life, but is comfortable with that prospect. He is aware of the risks of the adverse outcomes outlined by the doctors but confidently says he accepts those risks because of the great benefit to his wellbeing that he sees the treatment as producing in the long term. He says he agrees 100 per cent to the commencement of the treatment and is excited about the prospect of it finally starting.

19. Tellingly, in my judgment, Karsen expresses himself as follows:

    I’m not mentally ill, there’s nothing wrong with my mind, I just need assistance in changing my body to suit my brain so I can finally have peace of mind and be comfortable with myself. ….  I dream about the day that I’m finally liberated from binders and my body matches my mind.

20. Karsen is totally supported by his parents. They, too, are each fully aware of the irreversible effects and adverse risks of the treatment but they consider the long-term benefits to Karsen’s emotional well-being to far outweigh the risks.

Why is this Family in the Court?

1. Of course, if Karsen was 18 he could determine what treatment he wanted and consent to it himself. If Karsen was “Gillick-competent”, even at the age of 16, he could give informed consent to the proposed medical treatment.

2. The expression “Gillick-competent” is used to describe the status of a child who has reached “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. It first emerged in an English appeal court’s decision in Gillick v West Norfolk A.H.A [1986] AC 112 and became part of the law of Australia when the High Court recognised it as such in Marion’s Case.[1]

   [1]See the High Court’s decision in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)

3. Absent a finding of a child being Gillick-competent, usually parents can provide authorised consent to medical treatment for their child. However, the authorisation of some forms of medical treatment or medical procedures for children has been determined to fall outside the normal bounds of parental decision making responsibility and, thus, require authorisation by this Court exercising its welfare jurisdiction[2]. Hormonal treatment in cross-gender identification cases has been held to be such treatment because of its irreversible effects.[3]

   [2]          See Marion’s case

   [3]          Re Jamie (2013) FLC 93-547

4. The medical experts in this case each express the opinion that Karsen is not “Gillick-competent”. Dr S says that he does not believe that “[Karsen] has the capacity to consent to irreversible treatment”, in that “he has not achieved sufficient understanding of the long term medical consequences to enable him to understand fully what is proposed”. I hasten to add that this is not a negative reflection on Karsen. Dr S says he is “not persuaded that most minors would be in the position to fully understand the implications of irreversible hormone treatment over the entire lifespan”.

5. As I accepted the opinions of the medical experts that Karsen is not “Gillick-competent” (as Karsen and his parents have clearly also done), the Court’s Order for the parents to be able to authorise the particular proposed treatment was necessary. The Court’s jurisdiction to make such an Order is found in s 67ZC of the Act and, in deciding whether to make the Order sought, the Court was bound to regard Karsen’s best interests as the paramount consideration.

My Satisfaction

1. The highly qualified medical experts each expressed the opinion that the proposed treatment is in Karsen’s best interests as it will have positive consequences for his emotional wellbeing and reduce the risk of him experiencing any more mental health problems. They do not believe that delaying the commencement of treatment until Karsen turns 18 years of age is of any benefit having regard to Karsen’s strong position and the potential negative consequences of delay for Karsen. I am satisfied that they are caring, thoughtful, expertly qualified doctors who are working well together and with Karsen and his parents in treating Karsen. That should continue.

2. Karsen’s parents both support the proposed treatment commencing as soon as possible, truly believing it to be in Karsen’s best interests and fully aware of the attendant risks. They stand beside Karsen in his resolve.

3. Finally, Karsen himself, rapidly approaching adulthood, is strongly committed to the proposed course and wishes to commence it as soon as he can. He firmly believes it will help him to become the best person he can be. I am quite satisfied that Karsen, like every young person, should be given every opportunity to achieve his aspirations and that allowing his parents to authorise the proposed treatment, as they seek, is in his best interests. That is why I ordered as I did.

4. I am also satisfied that Karsen’s privacy and the privacy of his family should be respected. That is why I made the Orders that I did in respect of publication in this matter.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 September 2015.

Associate: 

Date:  8 September 2015