Re: Tahlia
[2017] FamCA 715
•8 September 2017
FAMILY COURT OF AUSTRALIA
| RE: TAHLIA | [2017] FamCA 715 |
| FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – GENDER DYSPHORIA – Gillick competent and able to consent |
| Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Re: Jamie (2013) FLC 93-547; [2013] FamCAFC 110 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 |
| APPLICANTS: | The Mother And The Father |
FILE NUMBER: By Court Order File Number has been suppressed
| DATE DELIVERED: | 8 September 2017 |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 8 September 2017 |
REPRESENTATION
By Court Order the names of Counsel and Solicitors have been suppressed
Orders
«FCA_LD221»IT IS DECLARED:
1.That the child subject to these proceedings Tahlia born … 2001 is competent to consent or refuse to consent to such medical treatment for gender identity dysphoria as she is advised by her medical practitioners.
IT IS DIRECTED:
2.The name of the child Tahlia born … 2001, Tahlia’s family members and their occupations, the hospital, Tahlia’s medical practitioners, Tahlia’s school, this Court, file number, the State of Australia in which the proceedings were initiated, the names of the parent’s lawyers, and any other fact or matter that may identify Tahlia shall not be published in any way and only anonymised Reasons for Judgment and Orders (with coversheets excluding the Registry, file number and lawyers names and details as well as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 has been handed one full copy of the Order made on 8 September 2017 with the relevant details included for provision to the treating medical practitioners and to enable their execution, and one coversheet of Reasons for Judgment that includes the file number and the lawyers names.
3.That Tahlia be at liberty to identify herself as the subject of this application and as the child the subject of the reasons for decision for these orders if she may choose.
4.That 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 mother and father and Tahlia have leave to publish to Tahlia’s treating health practitioners a copy of this Order which is not anonymised.
5.That further to paragraphs 3 and 4 above, each of the parties to these proceedings, and Tahlia herself, shall be at liberty to collect by hand a full copy of the orders and my reasons for judgment published hereunder with all of the identifying details.
6.That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.
7.The application filed 31 August 2017 be otherwise dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Re: Tahlia
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: Tahlia 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 |
| Re: Tahlia |
The Mother and The Father
Applicants
REASONS FOR JUDGMENT
Introduction
The first applicant mother and the second applicant father of a child whose name I will not reveal seeks a declaration that their daughter (for the child identifies as female) is competent to consent to Stage 2 cross-sex hormone treatment for Gender Dysphoria. In response to a query by me, the child said that she would like to be referred to as “Tahlia” in these anonymised reasons for decision so that is what I will do.
The application is supported by the child’s treating clinicians from the X Hospital who have provided sworn evidence that Tahlia is capable of making an informed decision regarding Stage 2 treatment cross-sex hormone treatment for Gender Dysphoria and wishes to proceed with that treatment a soon as possible.
This is a pressing but non-controversial application which was prioritised in the court system to be listed on a date convenient to the applicants. After reviewing the evidence, I granted the parents’ application and said that I would deliver my reasons subsequently. These are those reasons.
In granting this application I still hold to the views which I expressed in Re Martin[1] as to the utility of applications such as this where there is no controversy about Tahlia’s need for treatment.
[1] [2015] FamCA 1189
The application
The application was filed on 31 August 2017 and was heard on 8 September 2017.
Tahlia, the mother and her husband attended Court and Tahlia’s father was available by telephone.
The application is supported by the following evidence:
a)Affidavit of Associate Professor D, Consultant Child and Adolescent Psychiatrist, sworn 21 April 2017 which has annexed to it a report in relation to the application for Stage 2 treatment for Gender Identity Dysphoria (dated 28 January 2017);
b)Affidavit of Dr R, Paediatrician and sub-Specialist Adolescence Physician, affirmed 15 December 2016 which has annexed to it a report in relation to the application for Stage 2 treatment for Gender Identity Dysphoria (dated 28 October 2016);
c)The affidavit of the mother sworn 28 August 20217;
d)The affidavit of the father sworn 18 August 2017.
The evidence is not challenged. It is well reasoned and consistent. I accept the evidence.
Notably, the expert reports were written in October 2016 and January 2017 and the parents’ evidence was sworn in August 2017. I was informed by Ms T that the delay between the finalisation of the medical reports and preparation of the application was because Tahlia and her mother wanted Tahlia’s father to have the opportunity of being a joint applicant and he was, for some months, unable to be contacted. Ultimately, he is an applicant.
The parents have been represented by a legal firm and Ms T of counsel on a pro bono basis. I was informed that Drs R and D each provided their expert evidence free of charge to the applicants and that the X Hospital has not charged for their services.
The fact that the applicants have not paid for legal representation or expert evidence reduces the burden on the family in economic terms. However, I recognise the significant emotional toll associated with instituting and participating in any court proceeding not the least part of which is uncertainty around whether there will be a determinative outcome on the day the matter is first listed, and whether the relief will be granted at all. This is not a burden solely for the applicants and Tahlia’s step-father. It falls to an enormous degree on Tahlia and, doubtless, has been a source of anxiety for her which she could well have done without.
I also recognise the indirect cost associated with this application and borne by the X Hospital through the time and effort expended by Drs R and D in providing evidence as requested.
The facts
Tahlia is 16 years old and the only child of the mother and the father. She lives with her mother and step-father, Martin (not his real name), and has no siblings. She is currently in Year 9.
The mother is a full time homemaker and parent. She and the father met interstate and that is where Tahlia was born. The mother and the father were never married and the de-facto relationship ended in or about 2005 when the mother and Tahlia moved to another state. The mother re-partnered with Martin in 2007 and she and Tahlia moved to their current location in 2008. The mother has been in a stable relationship with Martin for the past 10 years. The mother deposes that Tahlia and Martin have a close relationship.
The father is 43 years of age and resides interstate. He is employed in a service industry. The father’s affidavit is brief. He has had little involvement in Tahlia’s life for some years. He has, however “spoken to Tahlia recently and [has] reviewed reports prepared by Dr R and Dr D regarding her gender dysphoria’.[2] The father agrees and consents to the continuation of the transition process for Tahlia as being of benefit to Tahlia’s mental health and wellbeing.
[2] Paragraph 2 of the Affidavit of the father sworn 18 August 2017
The mother deposes that as a child Tahlia “…was not interested in typical “boys” toys”…“and would be upset if I refused to buy “girly” toys for her”[3]. At the age of five, Tahlia received a pair of plastic heels from her grandmother. Tahlia “immediately became obsessed with them and would wear them everywhere” and “loved playing dress-ups”. From the age of six or seven the mother would find the child trying on her make-up and clothes[4].
[3] Paragraph 11 of the mother’s affidavit sworn 28 August 2017
[4] Paragraph 12 of the mother’s affidavit sworn 28 August 2017
At primary school, Tahlia was active, took part in extra-curricular activities, was house captain and maintained good social relationships. However, Tahlia would become very upset when she had to have her hair cut in a boy’s hairstyle or when she was made to shop for boy’s clothes. When Tahlia was in Year Four she told her friends that “she wanted to be a girl”[5].
[5] Paragraph 13 of the mother’s affidavit sworn 28 August 2017
At school Tahlia would be anxious about using the boy’s toilets and would be sent home due to her refusal. Approaching adolescence she became depressed and began to self-harm. She expressed to the mother that she felt “there was no place for her in this world”.[6] In 2015, Tahlia and her mother watched a Four Corners program about transgender children and Tahlia “expressed relief that there were other children who felt the way she did”. Following on from this event, an appointment was made with the X Hospital Gender Service.[7]
[6] Paragraph 16 of the mother’s affidavit sworn 28 August 2017
[7] Paragraph 16 of the mother’s affidavit sworn 28 August 2017
The child’s experience of Gender Identity Dysphoria
Tahlia had her first appointment with Dr D in October 2015. and was shortly thereafter diagnosed with Gender Identity Dysphoria.
When Tahlia was 14 years old, she began treatment for Gender Identity Dysphoria at the X Hospital and attends every 12 weeks for treatment. She has seen Dr D since then on many occasions.
Tahlia has also attended upon Dr R from October 2015, and sees her approximately every three months.
In his Mental Health Report, dated 28 January 2017, Dr D deposes to the child’s history and presentation as follows:
[Tahlia] has transitioned to live as a girl, and has consistently requested medical treatment to be comfortable in her body as a girl;
…Mental Health:
[Tahlia] has had some episodes of anxiety and depression, but has experienced much better mood since social transition and commencing hormone suppression treatment.
Experience of Gender:
[Tahlia] says she experienced female identification since around the age of three or four years, and revealed to her parents that she is a girl at around age 13 years, towards the middle of 2014. She always had an interest in feminine toys, such as Barbie and other dolls and her childhood heroes were female. She preferred to play with girls, or a few boys who [were] more interested in academic pursuits.
[Tahlia] was fully socially transitioned to be a girl in year seven at secondary school, when she often wore her signature girls’ headscarf.
[Tahlia] had difficulties with her peers at secondary school, and is now enrolled in distance education. She was very fearful of further masculinisation of her body through grade 5 and grade 6.
[Tahlia] commenced puberty hormone suppression treatment in November 2015 and there has been good suppression of further masculinisation of her body. Although [Tahlia] is now generally positive about herself, she experiences great distress in respect of her male genital development, possible breaking of a voice and facial hair.
[Tahlia] felt very relieved to go on puberty blocking hormone treatment as further masculinisation of her body was something of which she was very frightened. She commenced treatment with Zoladex in November 2015. With courage she is able to come out as a transgender person, wearing female clothes to her school, [amongst] family and the broader community.
I administered several systematic youth gender questionnaires with [Tahlia], and each of these confirmed the diagnosis of gender dysphoria, and the presence of profound body gender dysphoria.
Mental Health Second Opinion:
[Tahlia] saw Dr N, consultant child and adolescent psychiatrist working in the area of childhood gender dysphoria, who provided a second opinion in respect of [Tahlia] and confirmed the diagnosis of Gender Dysphoria in Adolescents.
Tahlia has been a patient of Dr R, Paediatrician. Between 8 October 2015 and 28 October 2016, there were nine consultations. Since Dr R wrote her report, she has continued to see Tahlia every three months or so. I was informed by Ms T, of counsel, that the treatment is going smoothly. Dr R supports Dr D’s diagnosis.
The law
Fundamentally the law recognises the principle that adults have freedom of choice. As Lord Scarman articulated in Sidaway v Board of Governors of the Bethlehem Royal Hospital and the Maudsley Hospital [1985] AC 871 at p 882:
The right to self-determination, the description applied by some to what is no more and no less than the right of a patient to determine for himself whether he will or will not accept the doctor’s advice, is vividly illustrated where the treatment recommended is surgery. A doctor who operates without the consent of his patient is, save in cases of emergency or mental disability, guilty of a civil wrong of trespass to the person. He is also guilty of the criminal offence of assault. The existence of the patient’s right to make his own decision may be seen as a basic human right protected by the common law.
What is at issue in this case, is that Tahlia is not yet 18 years old and, therefore, not an adult. I am asked to determine whether she should be treated as an adult for all intents and purposes. This involves an assessment of whether Tahlia has reached a sufficient understanding and is of sufficient intelligence to enable her to fully comprehend and consent to Stage 2 treatment. That is, whether she has the requisite capacity to make up her own mind about the important decision to undergo non-reversible treatment of the nature proposed.
In Re: Jamie (2013) FLC 93-547; [2013] FamCAFC 110, the Full Court swept aside some legal impediments which then confronted young persons suffering Childhood Gender Identity Disorder (also known as Gender Dysphoria in Adolescents and Adults). The Full Court recognised and accepted the psychological and psychiatric origin of the condition, and that treatment was now available which was accepted by the medical community as appropriate.
The Full Court also accepted the evidence in that case to the effect that, absent treatment, the young person would suffer irreparable psychological harm. On that basis, and because the procedure at the first stage is reversible, the Full Court found that Stage 1 treatment was not in the class of procedures which required any authorisation from the court so long as there was no controversy between child, the parents and the treating medical practitioners.
In Re Jamie the Full Court opined that because of the irreversible nature of the second stage of treatment the young person must either be competent to consent to the procedure (as identified in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick”) and accepted into the law of Australia by the High Court in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 ("Marion's Case")) or, if such competence is lacking, the court rather than the parents, should give consent.
Re Jamie, is authority for the court being required to consider and declare whether a young person, who seeks treatment such as the treatment sought by Tahlia in this case, has the requisite intelligence and appreciation of the procedure contemplated to be able to give informed consent or, in other words, whether the child is Gillick competent. Bryant CJ (with whom the other members of the Full Court agreed on this point) said at [137]:
[137]. With some reluctance I conclude that the nature of the treatment at stage two requires that the court determine Gillick competence. In Marion's Case, the majority held that court authorisation was required first because of the significant risk of making the wrong decision as to a child's capacity to consent, and secondly because the consequences of a wrong decision are particularly grave.
Her Honour went on to say at [138] and [139]:
[138]. It seems harsh to require parents to be subject to the expense of making application to the court with the attendant expense, stress and possible delay when the doctors and parents are in agreement but I consider myself to be bound by what the High Court said in Marion's Case.
[139]. That application however would only need to address the question of Gillick competence and once established the court would have no further role. The material in support of such an application, whilst needing to address the proposed treatment and its effects, and the child's capacity to make an informed decision, would not need to be as extensive as an application for the court to authorise treatment and I can see no reason why any other party need be involved, absent some controversy. It would be an issue of fact to be determined by the court on the material presented.
Thus the Chief Justice made clear that the application should, in the absence of a dispute between the child, the parents and the doctors, proceed on the basis of un-contradicted evidence which is not susceptible to challenge, which is the case here.
As indicated, I still hold to the view I expressed in Re Martin in relation to Re Jamie but acknowledge that it is authority binding on me. So the procedure which is envisaged by the Full Court in Re Jamie at [139] and provided for in our rules of court is that the court makes a declaration of Gillick competence as “an issue of fact to be determined by the court on the material presented” and, absent any apparent controversy, without a contradictor. Accordingly, once satisfied of the child’s intellectual development, it is difficult to see, what the court can do other than to approve of the treatment explained and recommended to it by competent and qualified medical clinicians.
An alternative approach to Gillick competency was taken by his Honour, Justice Cronin in Re Isaac [2014] FamCA 1134 in the year following the Full Court’s decision in Re Jamie. There, the applicant’s parents were opposed to the medical treatment sought by the child. The parents were living overseas and the child was largely self-reliant. In exercising the court’s power to give parental responsibility for a particular issue to any person under s 64B(2) of the Family Law Act1975 (Cth) (“the Act”), Cronin J was of the view that general parenting responsibility should be given to the applicant child; that the child was in a period of transition from childhood to adult status and there was no evidence that the child’s parents were acting in any parenting capacity. They had distanced themselves from him, were critical of his way of life and decisions, and did not provide emotional or financial support.
Cronin J found that the presumption of the parents having equal shared parental responsibility pursuant to s 61DA when making parenting orders was rebutted in this instance as not being in the best interests of the child. His Honour said as follows at [45]:
… In circumstances where the parents disagree with their child who has been assessed by three experts as being competent to make the relevant decision, the matters mentioned by the High Court in Marion’s Case and in Gillick, point to the fact that Isaac is in that transition phase from childhood to adulthood and that he does not need his parents’ protection or permission.
With respect, devolution of parental responsibility on the child is inconsistent with the meaning of parental responsibility in Section 61B of the Act which specifies that parental responsibility is, in relation to a child, all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 61C of the Act provides that, unless displaced by a parenting order, a child’s parents have parental responsibility for the child until the child attains the age of 18 years. However, parental responsibility is not absolute authority. It does not preclude the child from making determinations for himself or herself. Parental responsibility merely provides the time frame within which it can be assumed by others, such as hospitals and schools, that parents are empowered at law to make decisions for the protection and benefit of the child. Gillick competency recognises that children can be adjudged competent to make decisions for themselves at various stages of their development, regardless of age because the child has achieved the sufficient understanding and intelligence to do so. When a child of Gillick competency makes a decision in relation to himself or herself, that child acts autonomously. The simple see-saw analogy used, albeit in an entirely different context, by Lord Wilson in Re B (A Child)(Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 [45] is apposite. When a child is found to have the requisite maturity, intelligence and understanding of consequences to make important decisions (Gillick competence), the child’s end of the see-saw goes down and the parents’ end of the see-saw goes up because they are relieved of authority (and responsibility) for decisions which child is recognised as able to make for himself or herself. As Lord Scarman held[8]:-
The principle is that parental right or power of control of the person and property of his child exists primarily to enable the parent to discharge his duty of maintenance, protection and education until he reaches such an age as to be able to look after himself and make his own decisions. […] The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose on the process of 'growing up' fixed [chronological age] limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change. […] The underlying principle of the law was exposed by Blackstone and can be seen to have been acknowledged in the case law. It is that parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.
[…]In the light of the foregoing I would hold that as a matter of law 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.”
i)[8] (Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112 […])
In my view, the court has no capacity to transfer to the child the particular authority described in Section 61B and purporting to do so is not efficacious. Either the child is Gillick competent in the circumstances of the case, and he or she needs no more than a finding to implement his or her decision against third parties, or the child is not Gillick competent in the circumstances of the case and should not be making the decision in any event. Finally, the Full Court reasoned in Re Jamie that, if the child had not been Gillick competent, parental responsibility would have been insufficient to authorise the procedure. It follows that bestowing parental responsibility for the child on the child would not then provide the child with the authority they need to authorise the procedure.
The reasoning in Re Isaac was not urged upon me by counsel for the applicants. Had it been I would not, with respect, have been able to follow it. The declaration of Gillick competency signifies Tahlia’s attainment of autonomy in relation to medical treatment and that she no longer needs another person with parental responsibility to make the decision. The Full Court’s reasoning is that, in a case such as this, a declaration is necessary to alleviate doubt and, implicitly, to protect the doctors who treat the minor child.
The court has original jurisdiction in relation to welfare of children which is the parens patrie jurisdicition found in s 67ZC(1). Based on that jurisdiction, the court can proceed to make what orders it considers appropriate in accordance with s 34 which provides:
34(1) The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.
Consistent with the reasoning of the Full Court in Re Jamie, which is binding on me, this is the power I will exercise to make the declaration and orders sought by Tahlia.
Discussion
It is apparent from the reports by Drs D and R, and the second opinion of Dr N (as referred to in Dr D’s report) that they were requested by the solicitor for the applicants to address the matters set out in Rule 4.09 of the Family Law Rules [“FLR”]. That rule specifies the evidence required to support an application for a Medical Procedure Application. A Medical Procedure Application is defined in the Dictionary to the FLR as an application seeking an order authorising a major medical procedure for the child which is not for the purpose of treating a “bodily malfunction or disease”. An example of a major medical procedure is specified in the Rules as a procedure for sterilising or removing a child’s reproductive organs. In Re Jamie, Finn J stated [176] “there is nothing in their Honours’ observations [in Marion’s Case] which can, in my view, be taken as limiting their observations to only a physical, as opposed to a psychiatric or psychological malfunction or disease.” Accordingly, Tahlia’s application is not a Medical Procedure Application nor an application to which r 4.09 applies.
I will summarise the evidence that the experts were requested to, and did, provide and do so out of respect for their mutual effort and because it contains some of the evidence upon which I relied in concluding that Tahlia is, Gillick competent.
Tahlia meets the diagnostic criteria for gender dysphoria (DSM-V 302.85) with an affirmed female gender identity. Gender dysphoria refers to the distress which may accompany the incongruence between one’s experienced or expressed gender (here, female gender) and the gender which one was assigned at birth or natal gender (here, male gender). Professor D explains that “gender dysphoria” is not now generally seen as a mental illness although some of the consequences of a young person who does not feel that they are living in the appropriate body, can produce profound emotional distress and social and relationship difficulties. In this case, Tahlia is distressed that, although assigned male at birth, she experiences herself to be female and, as a result, she experiences significant anguish about having a male body instead of a female body. Tahlia wants to be rid of the male aspects of her body and wants to develop breasts, reduce facial and body hair, have a redistribution of body fat so that her buttocks, hips and thighs have a more feminine shape and smoother less oily skin.
Tahlia “wants people to treat her as a girl consistently with how she experiences her inner, core identity”.
The proposed treatment is to administer oestrogen treatment on a program and in a form which is individualised for Tahlia.
Understanding of the known risks
Dr R has discussed the risks of the treatment with the child and her parents. Dr R reports that Tahlia acknowledges the known risks including the reversible and irreversible physical changes that the treatment will produce have been discussed with the child. Dr R states that:[9]
I feel that [Tahlia] is capable of making an informed decision about the procedure and that she agrees to the procedure. It has been [Tahlia] who has driven the referral to the [X Hospital] Gender Service and progression along this treatment pathway.
[Tahlia] presents as an intelligent young woman who has understood the information given to her during appointments and within the information sheets and consent forms she has signed. She understands the negative impact that oestrogen has on her long term fertility options and, as a consequence, she chose to undergo a testicular biopsy earlier this year to improve her long term fertility potential.
[9] Affidavit of Dr R affirmed 15 December 2016, Report dated 28 October 2016.
This is supported by Dr D who states: [10]
I do not believe that [Tahlia] is incapable of making an informed decision as she can demonstrate a clear and thorough understanding of the role of oestrogen therapy in changing her body and the potential adverse effects over time.
I believe [Tahlia] does have the capacity to make an informed decision about oestrogen therapy now. We have discussed the tole of oestrogen and its risks and benefits, and I feel she understands this thoroughly.
[10] Affidavit of Dr D sworn 21 April 2017, Report dated 28 January 2017
Physical, social and psychological effects on the child
If the procedure were not carried out Dr D describes the effect on Tahlia’s as: [11]
[11] Affidavit of Dr Paul sworn 21 April 2017, Report dated 28 January 2017
Physical
[Tahlia] would like to be rid of the masculine aspects of her body, in particular facial and body hair, fears the deepening of her voice and a male body muscular habitus. She is very distressed by her genitalia.
Social
The development of male physical features otherwise I believe would be severely detrimental to [Tahlia]’s emotional and social development…
Psychological
She might otherwise be at risk becoming despairing about her predicament, increasing the possibility of self-harm or suicide.
I believe that [Tahlia] is at a very high risk of developing further episodes of depression, with symptoms of social anxiety, self-loathing, and an increased harm of self-harm and suicidal ideation.
The treatment will result in feminising changes to Tahlia’s body such as induction of breast growth, decreased facial and body hair, softening of skin, decreased libido and changes to fat distribution. With regard to the social and psychological effects for Tahlia, if the procedure is carried out, Dr R describes the effects as follows:[12]
[12] Affidavit of Dr Paul sworn 21 April 2017, Report dated 28 January 2017
“greater aesthetic consistency with her female gender identity” and
“decreased depression and anxiety associated with transition and reduced risk of self-harm and suicide”.
Dr D supports this view and states[13]:
[Tahlia] will experience a major improvement in her level of social confidence with her girlfriends, family and her extended social network
[Tahlia] has been increasingly confident living with her peers as a girl.
[13]
Capability of making an informed decision about the procedure
Drs D and R consider that Tahlia is capable of making an informed decision regarding Stage 2 treatment and that Tahlia wishes to proceed with the treatment a soon as possible. As indicated, the child’s parents agree to the treatment being commenced as soon as possible.
No prohibition against publication
Tahlia’s parents sought permission for Tahlia to be able to identify herself publicly, possibly in the media and in a manner which, absent dispensation, would offend the provisions against publication of any account of proceedings and the identification of people involved in the proceedings in this court[14].
[14] Section 121 Family Law Act 1975
This court goes to considerable lengths to ensure the anonymity of litigants in applications such as Tahlia’s application. The court is closed, no one can search the file without the prior permission of a judge and the record of the reasons on the secure court system does not contain identifying features. These measures are more stringent than for other cases and the court will continue to adhere to them. However, if Tahlia wishes to disclose matters publically, I am satisfied that she is mature and intelligent enough to make that choice. Of course, these proceedings are just about Tahlia, in contradistinction to other proceedings which usually involve two parties and, more often than not, children. I would hope, however, that Tahlia makes public pronouncements carefully and in a considered and balanced manner and being mindful of the fact that what is said publically lasts a lifetime or more.
Conclusion
The overwhelming evidence of the parents and the doctors is that Tahlia has the requisite intelligence and understanding of the procedures involved to give her informed consent to Stage 2 treatment cross-sex hormone treatment for Gender Dysphoria. Following the authority of Re Jamie, I declare that Tahlia is Gillick competent.
I am also satisfied that the declaration is in Tahlia’s best interests.
Finally, I direct that a copy of these reasons be provided to the applicants through their lawyer and to Doctors D and R marked “Strictly in confidence”.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Legal Associate:
Date: 8 September 2017