Re: Sara

[2016] FamCA 405

FAMILY COURT OF AUSTRALIA

RE: SARA [2016] FamCA 405

FAMILY LAW – MEDICAL PROCEDURES – Childhood gender dysphoria – Where the Court declares that the child is competent to consent to the administration of Stage 2 treatment.

Family Law Act 1975 (Cth) s 67ZC

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

APPLICANT: The Father

RESPONDENT:	The Mother
INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:  By Court Order File Number is suppressed

JUDGMENT OF: Rees J

HEARING DATE: IN CHAMBERS

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

IT IS DECLARED

1. That the child … known as Sara who was born on …1998 is competent to consent to the administration of Stage 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

IT IS ORDERED

1. That the full name of Sara, her family members, her hospital, the Independent Children’s Lawyer, her medical practitioners, her school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of Sara’s parents’ lawyers, and any other fact or matter that may identify Sara shall not be published in any way, and only anonymised reasons for judgment and orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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, to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.

2. That 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: Sara 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 suppressed

The Father

Applicant

And

The Mother

Respondent

REASONS FOR JUDGMENT

1. The father has applied for a declaration that the child, known as Sara, who was born in 1998 is competent to consent to the administration of Stage 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

2. In the alternate, the father seeks an order that he be authorised to consent to the proposed treatment.

3. Sara’s mother supports this application.

4. The Court was assisted by an Independent Children’s Lawyer (“ICL”) who also supported the application.

5. The treatment which is proposed for Sara is hormone therapy for transition from male to female. No surgical intervention is proposed at this time. Sara, who will reach her 18^th birthday later in 2016, wishes, with the assistance of her parents and her treating doctors, to commence hormone therapy to arrest the development of male sexual characteristics and bring about physical and psychological alterations that are consistent with her female sense of identity.

6. Sara left school at the end of year 11 in 2015 and has been working.

7. Although the relevant Child Welfare Authority is not a named respondent to the application, the application and supporting affidavits were served upon the Secretary of the Authority (“the Secretary”) who appeared by counsel. Counsel for the Secretary advised the Court that the Secretary had made all necessary enquiries and did not wish to participate further in the proceedings. With the consent of the applicant and the ICL, the Secretary was given leave to withdraw.

THE LAW

1. The issue of the role of the Family Court of Australia in cases involving childhood gender identity disorders was definitively explored in the decision of Re: Jamie (2013) FLC 93-547 (“Re: Jamie”) by the Chief Justice and Finn and Strickland JJ. In separate judgments their Honours each determined that in cases where the proposed treatment is irreversible without surgical intervention the issue for the Court is to determine whether the child is competent within the meaning of the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick competent”). Their Honours held unanimously that in the event that the Court finds that the child is Gillick competent then the authority of the Court is not required to authorise the treatment.

2. At paragraph 140 of her Honour’s judgment, the Chief Justice said:

   I summarise the decision that I have reached in relation to these matters:

   a)Stage one of the treatment of the medical condition known as childhood gender identity disorder is not a medical procedure or a treatment which falls within the class of cases described in Marion’s case which attract the jurisdiction of the Family Court of Australia under s 67ZC of the Act and require court authorisation.

   b)If there is a dispute about whether treatment should be provided (in respect of either stage one or stage two), and what form treatment should take, it is appropriate for this to be determined by the court under s 67ZC.

   c)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.

   d)If the child is Gillick competent, then the child can consent to the treatment and no court authorisation is required, absent any controversy.

   e)The question of whether a child is Gillick competent, even where the treating doctors and the parents agree, is a matter to be determined by the court.

   f)If there is a dispute between the parents, child and treating medical practitioners, or any of them, regarding the treatment and/or whether or not the child is Gillick competent, the court should make an assessment about whether to authorise stage two having regard to the best interests of the child as the paramount consideration. In making this assessment, the court should give significant weight to the views of the child in accordance with his or her age or maturity.

3. Finn J said at paragraph 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. But if the court had any doubt about that capacity, then it would have to determine for itself the question of whether the stage two treatment should be authorised.

4. Strickland J said at paragraphs 195–196:

   In relation to stage two treatment, I agree that the therapeutic benefits of the treatment need to be weighed against the risks involved and the consequences which arise out of the treatment being irreversible, but that given the nature of the changes that would result for the child that treatment should require court authorisation. This would not be the case though where the child is able to give consent to the proposed treatment.

   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. This is because of the requirement by the High Court majority in Marion’s case that it is for the court to authorise medical treatment that is irreversible where there is a significant risk of the wrong decision being made as to the child’s capacity to consent to the treatment, and where the consequences of such a wrong decision are particularly grave.

5. The issue therefore in relation to Sara is whether or not she is Gillick competent to consent to hormone therapy.

6. The ability of a child to make his or her own decision in respect of medical treatment depends upon that child’s having sufficient understanding and intelligence to make the decision. It is a question of fact in each individual case and falls to be determined on the evidence of the individual capacity of the particular child. 

THE EVIDENCE

1. Sara’s father in an affidavit sworn 24 February 2016, deposed:

   [Sara] is not rash when it comes to decision-making. I have always encouraged both of my children to be independent about their decision-making, and have expressed to them that although they are always able to ask me for my own advice and support they are responsible for the outcome of their own decisions.

2. The father further deposed:

   In so far as her life experience allows, I feel confident that [Sara] has analysed as many issues as we could think of posing to her for analysis. We have done this in the presence of counsellors, doctors, psychologists, psychiatrists and now endocrinologists. [Sara] has spent a great deal of time researching everything related to her condition and it (sic) happy to continue with the treatment. I am of the opinion that [Sara’s] position on her gender identity comes from her true feelings of disconnect between her male anatomy and female gender identity. As a parent, I am seeking the support of the court to commence treatment that will alleviate the gender dysphoria that [Sara] is experiencing.

3. Sara’s mother expressed similar views about Sara’s understanding of the process upon which she wishes to embark.

4. Dr H, a consultant physician in endocrinology and metabolism, prepared a report in relation to Sara dated 4 March 2016. In relation to the issue before the Court, Dr H stated:

   I believe that [Sara] is able to comprehend the nature of the treatment such that he is able to provide informed consent, according to the Gillick standard. [Sara] is aware of the potential benefits and negative effects of treatment, including the effects on fertility. [Sara] is aware that some of the effects of hormones may be permanent and could remain even if treatment is discontinued. [Sara] is cognisant of the fact that the treatment may have unforeseeable consequences. [Sara’s] expectations of treatment are realistic such that he does not expect treatment to address all future psychological and social difficulties that he may encounter.

   Dr H further stated:

   The general consensus regarding the timing of commencing of cross sex hormones (phase two treatment) in transgender children and adolescents is at or following the age of sixteen years. [Sara] will be turning eighteen [later] this year. [Sara] is aware of the fact that he can consent to treatment without the input of the Family Court from the age of eighteen. However, [Sara] is not willing to delay the treatment any longer.

5. Dr K, a consultant child, adolescent and adult psychiatrist, provided a report dated 9 December 2015. Dr K conducted assessment interviews with Sara on 28 October 2015, 4 November 2015 and 18 November 2015.

6. Dr K assessed Sara as a “quiet, mature and modest young person with a love of nature and a balanced, realistic and sensible approach to life.”

7. Dr K reported:

   [Sara] demonstrated an excellent capacity to comprehend and retain both existing and new information regarding the proposed treatment. He incorporated both existing and new information in a rational discussion concerning the proposed treatment.

   [Sara] was able to provide a full explanation, in terms appropriate to his level of maturity and education, of the nature of Phase 2 treatment. [Sara] understood that he would be taking oral medication in the form of female sex hormones (a form of oestrogen and perhaps progesterone) for many years and possibly for the rest of his life. He knows that he will also be taking an anti-androgen agent while his body retains the capacity to produce its own testosterone in physiologically significant amounts. He understood that this treatment needs to be accompanied by regular medical monitoring and supervision, including occasional blood tests to check the hormone level. He understood that the changes will be gradual over months to years.

   [Sara] demonstrated that he was able to describe the advantages for him of Phase 2 treatment. He told me that the main advantage of the treatment was that it would ‘allow me to be myself’. The oestrogen will cause body fat redistribution to bring about development of a female body shape and having a softer appearance. There will be breast development, change in hair texture and quantity and softening of the skin. [Sara] listed the advantages of anti-androgen treatment as being the reduction of facial and body hair growth, inhibition of further muscle development and reduction of acne.

   [Sara] described the disadvantages of Phase 2 treatment, including the inconvenience of taking medication on a daily basis (which he perceives as a very minor issue), the possibility of being more prone to depression and anxiety, reduced energy and sex drive, weight gain and an increased likelihood of blood. [Sara] is giving consideration to sperm storage, and accepts that this is best done prior to the commencement of dross (sic) hormone treatment.

   [Sara] was able to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when he should proceed with Phase 2 treatment. He expressed a clear and informed decision to commence this treatment as soon as possible.

   [Sara] acknowledged and understood that Phase 2 treatment will not necessarily address all of the psychological and social difficulties that he had before the commencement of treatment, and that further support and, if necessary, therapy in these regards will be of benefit to him. However, the only significant issue that [Sara] perceives at this stage is the disengagement from his mother. He is realistic about the physical limitations of the treatment and does not expect that transitioning will somehow guard him from future life stressors and difficulties, but that as an authentic person he will then be in a much better position to deal with the challenges that may befall him.

8. Dr K expressed the opinion that Sara is free to the greatest extent possible from temporary factors that could impair her judgment in providing consent to the procedure.

9. I am satisfied on all of the evidence that Sara, who is almost 18 years of age, has sufficient intelligence and understanding to make the decision to commence therapy and, as requested by her father, and with the support of her mother a declaration will be made accordingly.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 26 May 2016.

Associate: 

Date:  26 May 2016