Factual and Procedural Background
The case concerns a young person, now 16 years old, who was born female and began identifying as male around age 12. The young person's parents separated acrimoniously and disagree on how to address his gender dysphoria. The mother initiated proceedings seeking a prohibited steps order under section 8 of the Children Act 1989 and a "best interests" declaration under the court's inherent jurisdiction. By the hearing before the judge in April 2024, the mother sought an adjournment pending a six-month assessment by Gender Plus, a private gender dysphoria clinic. The father sought to end the proceedings, citing significant distress to the young person. The judge dismissed the proceedings, a decision now appealed by the mother.
The young person has been living with the father since 2021. The mother initially opposed treatment and arranged counselling and therapy. The mother’s court application in August 2022 sought to prevent private treatment arranged by the father. An autism assessment in October 2022 showed limited autistic traits, and the local authority noted trauma due to parental acrimony and gender dysphoria. The young person’s GP confirmed gender dysphoria but no mental health issues. The mother agreed to NHS treatment but not private treatment, leading to an interim order restricting private treatment. Attempts at family arrangements failed due to ongoing parental disagreement. The young person was described as intelligent, well-informed, and articulate by the judge after a meeting in August 2023.
Efforts to obtain expert opinions on capacity and hormone treatment effects failed, as no endocrinologist was willing to provide evidence and the young person refused psychiatric assessment. The Guardian provided reports on living arrangements and relationships. Gender Plus, the first private gender dysphoria hormone clinic in the UK, was registered with the Care Quality Commission in January 2024. The young person turned 16 shortly before the hearing, and the Cass Review was published a week prior.
Gender Plus proposed a six-month assessment, mostly online, before deciding on hormone treatment referral. Since the hearing, several significant developments occurred: closure of the Tavistock clinic, NHS England’s clinical policy restricting puberty blockers, NHS Scotland’s policy against prescribing cross-sex hormones under 18, and government announcements imposing an indefinite embargo on puberty blockers subject to review.
Legal Issues Presented
- Whether the court should override the consent given by a young person over 16 for cross-sex hormone treatment on best interests grounds.
- Whether the proceedings should be adjourned pending completion of a private clinic assessment in a rapidly changing legal and regulatory environment.
- The extent of judicial oversight required in cases involving treatment for gender dysphoria, particularly involving private providers.
Arguments of the Parties
Appellant's Arguments
- The legal and regulatory landscape for gender dysphoria treatment is rapidly evolving.
- The Cass Review, published shortly before the hearing, raised significant concerns about current treatment practices.
- The Government is actively responding to the Cass Review, creating uncertainty about future treatment protocols.
- Gender Plus, as a private provider, diverges from NHS practices and does not fully comply with the Cass Review recommendations, particularly the requirement for national multi-disciplinary team (MDT) consideration.
- The court should maintain oversight in cases with less than complete parental agreement regarding treatment for gender dysphoria.
- If necessary, the court should depart from its earlier decision in Bell v. Tavistock to allow for ongoing judicial involvement.
Respondent's Arguments
- The judge was correct to dismiss the proceedings to protect the young person's welfare and best interests.
- The proceedings had been ongoing for over two years and were causing significant distress to the young person.
- Continuing the proceedings would be disruptive and harmful to the young person's well-being.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Gillick v. West Norfolk and Wisbech AHA [1986] AC 122 |
Competence of children under 16 to consent to medical treatment. |
Distinguished from the case as the young person is over 16; Gillick competence not applicable here. |
| R (Bell) v. Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363 |
Judicial review of medical practice in gender dysphoria treatment; courts should not decide medical policy; competence questions for doctors. |
Confirmed that policy decisions rest with medical professionals and regulators; no special legal category for hormone treatment; emphasised caution in court interventions. |
| Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993] Fam 64 |
Section 8 FLRA 1969 interpretation; court’s inherent jurisdiction to override competent minor’s refusal of treatment in limited circumstances. |
Applied to explain court’s limited power to override competent young person's consent; court should consider best interests especially where grave harm is risked. |
| AB v. CD and Tavistock [2021] EWHC 741 (Fam) |
Parents’ ability to consent to puberty blockers without court intervention unless overriding child’s wishes. |
Approved in Bell v. Tavistock; distinguished from current case due to changed regulatory environment and age of young person. |
| EF v. LM and J [2024] EWHC 922 (Fam) |
Concerns about private providers and court intervention in gender dysphoria treatment. |
Referenced regarding potential court intervention in cases of coercion or mental health concerns; not directly applicable here. |
| R (Burke) v. General Medical Council [2005] EWCA Civ 1003 |
Dangers of courts deciding abstract issues divorced from case-specific facts. |
Invoked by the judge to caution against broad judicial declarations in gender dysphoria treatment absent specific factual context. |
Court's Reasoning and Analysis
The court acknowledged three distinct issues in gender dysphoria treatment cases: competence under Gillick for those under 16, mental capacity under the Mental Capacity Act 2005, and best interests for those over 16 under section 8 of the Family Law Reform Act 1969. As the young person is now 16, the court focused on the best interests jurisdiction and the possibility of overriding consent.
The judge initially held there was no realistic basis to override the young person's consent to treatment by a regulated clinician, and thus no need to adjourn the case. The mother appealed, arguing that the rapidly changing regulatory environment, including the recent Cass Review and government responses, justified keeping the proceedings alive pending the completion of the private clinic assessment.
The court agreed that the judge underestimated the significance of these factors. Gender Plus, as a private provider, does not comply with all Cass Review recommendations, notably the requirement for national multi-disciplinary team consideration. The court recognized the possibility of future disagreement between the parties if hormone treatment is prescribed, despite the young person's competence and capacity being accepted.
The court emphasized that policy decisions regarding gender dysphoria treatment rest with medical professionals, regulators, and government, not the judiciary. However, given the ongoing disagreement and regulatory flux, it is appropriate to adjourn the proceedings to allow the private clinic assessment to be completed and considered if necessary.
The court also noted that the administration of hormone treatment is not in a special legal category requiring automatic court oversight, consistent with prior case law. The best interests jurisdiction to override consent is limited to cases involving grave and irreversible harm.
Holding and Implications
The court ALLOWED THE APPEAL and set aside the judge’s order dismissing the proceedings. Instead, the proceedings are adjourned to permit completion of the young person's assessment by the private clinic, Gender Plus, with the possibility for either party to restore the case to court for further directions.
The direct effect is that judicial oversight remains open in this case pending further factual developments. The decision does not establish a new precedent requiring ongoing court involvement in all similar cases, but reflects the court’s cautious approach in a rapidly evolving regulatory context with genuine parental disagreement. The ruling clarifies that the court’s inherent jurisdiction to override consent in competent young persons remains limited and fact-specific.