Re: Kendall

[2017] FamCA 999

FAMILY COURT OF AUSTRALIA

RE: KENDALL [2017] FamCA 999

CHILDREN – MEDICAL PROCEDURES – Where the applicant parents sought a declaration that the child is Gillick competent to consent to Phase 2 testosterone hormone therapy treatment for Gender Dysphoria – Where the child has identified as a female since a very young age – Where Phase 1 treatment in the form of pubertal blockers commenced almost two years ago – Where the child’s treating medical professionals consider the child is capable of making an informed decision about receipt of Phase 2 treatment – Declared the child is competent to consent to her administration with Phase 2 treatment for the condition known as Gender Dysphoria – Order made suppressing the identities of the parties and the publication of any information that would identify them

Gillick v West Norfolk and Wisbech Area Health Authority (1986) AC 112
Re: Jamie (2013) FLC 93-547
Secretary, Department of Health & Community Services & JWB and SMB (Marion’s case) (1992) 175 CLR 218

APPLICANT: The Mother

APPLICANT: The Father

FILE NUMBER: By Court Order File number suppressed

DATE DELIVERED: 22 November 2017

JUDGMENT OF: Austin J

HEARING DATE: 22 November 2017

REPRESENTATION:

By Court Order names of solicitors have been suppressed

Orders

1. Declaration that Kendall (formerly known as B), born … 2000 (‘the child’) is competent to consent to the administration to her 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 her family members and her 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the State in which the proceedings were initiated, and any other fact or matter that might identify the child shall not be published in any way;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 contrary order of a Judge; and,

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

1. 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 applicants and the child have leave to publish a copy of these orders and a copy of the Reasons for such orders, which are not anonymised pursuant to Order 2 hereof to the child’s treating medical practitioners.

2. Any and all other outstanding applications are 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: Kendall 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

The Mother

Applicant

And

The Father

Applicant

EX TEMPORE REASONS FOR JUDGMENT

1. On 9 November 2017, the applicant parents of a 17 year old child, diagnosed with Gender Dysphoria, commenced these proceedings seeking a declaration in the following terms: 

   (5) That the child be declared Gillick competent to consent to phase 2 testosterone hormone therapy treatment.

2. The subject child was born a male, but has identified as female since very young. The applicants are sympathetic to her position and made arrangements for her name to be changed on the NSW register of Births, Deaths & Marriages to reflect her preferred female gender. 

3. Following her diagnosis with Gender Dysphoria under the DSM-V, the child began counselling with a psychologist (Dr P) in May 2014. Thus far, up until October 2017, she has consulted Dr P on 13 consultations. Her psychological therapy with him occurred concurrently with her submission to Phase 1 treatment in the form of pubertal blockers, which began in August 2016 under the supervision of a paediatric specialist endocrinologist. 

4. According to the evidence, the time is now ripe for the child to begin Phase 2 treatment, which entails the administration of hormonal medication to initiate the secondary sexual characteristics and appearance of the female gender. 

5. The child’s treating medical practitioners will not embark upon the administration of Phase 2 treatment without informed consent from the child, or alternatively, valid consent given on her behalf, to do so. The question therefore arises as to whether the child is competent to give informed consent. The applicants seek a declaration that she is.

6. Out of abundant caution, the applicants served their application and supporting evidence upon the delegate of the Secretary-General of the NSW Department of Family and Community Services, but the Secretary-General has indicated no intention to intervene in the proceedings (see Exhibit A).

The Law

1. The administration of Phase 2 treatment to a child suffering from the condition of Gender Dysphoria is the child’s decision, provided he or she has the competence to make it. Alternatively, it is the Court’s decision if the child lacks competence to decide for him or herself (see Re: Jamie (2013) FLC 93-547).

2. The Court must decide the question of the child’s competence, determined by application of the evidence to the principles enunciated in Gillick v West Norfolk and Wisbech Area Health Authority (1986) AC 112, which were confirmed by the High Court in Secretary, Department of Health & Community Services & JWB and SMB (Marion’s case) (1992) 175 CLR 218 at 237-238 in the following terms:

   A child is capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what treatment is proposed.

3. The decision about authorisation for treatment like Phase 2 treatment for Gender Dysphoria is regarded as one which falls beyond the limits of ordinary parental responsibility for the child. Moreover, the law does not permit the Court to enlarge the powers of parental responsibility enjoyed by parents to give them power to make the decision (see Marion’s case). 

4. Accordingly, the initial question for determination is whether the child is competent to give such informed consent.

The Evidence

1. Dr P affirmed an affidavit in these proceedings on 7 November 2017, wherein he reported about the child as follows:

   Having turned 17 … she now feels that it is time to move to the next phase, stage 2 treatment.  I have quizzed [the child] myself as to her understanding of the treatment and I am satisfied that she is aware of its effects and understands the changes to her life that will ensue.  She is excited at the prospect and looking forward to commencement. …

   I am convinced that [the child] is capable of making an informed decision.  …

   I am comfortable that [the child’s] psychological state is such that she can make this decision sensibly and reasonably without coercion, pressure, force or mental impairment.

2. The child has also been consulting a child and adolescent psychiatrist (Dr T), whom she has now seen on three separate occasions since March 2017. Dr T also provided an affidavit in these proceedings on 7 November 2017, in which she reported about the child:

   I feel that [the child] is capable of making an informed decision about initiation of anti-androgens and estrogen treatment (feminising treatment). …

   [The child] is deemed capable of making an informed decision. …

   She has been given education about the effects and side effects of this treatment, as well as the reproductive effects.

3. There is no contradictor in these proceedings but, according to the evidence, the child, both of her parents, her psychologist, and her psychiatrist all agree she is competent to make an informed decision about her receipt of irreversible treatment to transform her gender from male to female. There is no reason to doubt the efficacy of the evidence, in which case the declaration sought by the child’s parents will now be made. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 22 November 2017.

Associate: 

Date:  30 November 2017