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Re A[2022] QSC 159

SUPREME COURT OF QUEENSLAND

CITATION:

Re A [2022] QSC 159

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 March 2022 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2022

JUDGE:

Boddice J

ORDER:

1. The matter be heard in closed Court.

2.               The minor with which this application is concerned is not to be referred to by name in these proceedings but by the reference “A”.

3.              The identity of A is supressed such that the full name of the child, the child’s family members and their occupations, the child’s medical practitioners and other clinical staff, the hospital and health service, the hospital and any medical practices where the child may obtain treatment, and any other fact or matter that may identify the child must not be published in any way.

4.              Only anonymised Reasons for Judgment and Orders (with cover-sheets excluding parties’ real names) shall be released by the Court to non-parties without further contrary Order of the Court (it being noted that each party shall be hand one full copy of these Orders with the relevant details included, for provision to the treating medical practitioners and to enable their execution).

5.              Subject to any contrary order of the Court, the Court file must not be made available for search or review by any person who is not a party to the proceeding or a party’s legal representative in the proceeding.

6.               The affidavits, exhibits, written submissions and parties’ correspondence with the Court within this proceeding must be placed in a sealed envelope and may only be opened by further order of the Court (with the sealed envelope to be so marked).

7.              The audio recording of these proceedings not be published or made available except to Auscript for the purpose of making a transcript, or to the Court.

8.              Any transcript of the proceeding be made available only to a party to the proceeding or a party’s legal representative in the proceeding, or to the Court.

9. A declaration be made in the following terms:

The Court declares that:

(A)               the child (“A”) born [redacted], is competent to consent to the administration of stage 2 treatment for the condition called gender dysphoria in adolescents and adults as set out in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5), 2013, Fifth Edition (“Treatment”); and

(B)  A may give valid and lawful consent to the administration of the Treatment to A;

(C)  The following persons may validly and lawfully act upon A’s consent, if given:

(I)               the [redacted], and medical practitioners and nurses acting on its behalf in providing medical and nursing services to A; and/or

(II)              such other health practitioner or Hospital and health service to which [redacted] may handover A’s care, as the case requires, for the purposes of administering the treatment.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATING TO CARE AND PROTECTION – POWERS RELATING TO MEDICAL TREATMENT – where the applicant seeks orders on behalf of a child for the administration of gender affirming hormone treatment – where the father of the child opposes medical treatment – where the application is brought pursuant to the parens patriae jurisdiction – whether the application should be heard in the Federal Circuit and Family Court – where it is not in the interests of the child for the application to be delayed – where the child is able to comprehend and retain the information relevant to the proposed treatment – where the child can describe the nature of the proposed treatment – where the child can consider the consequences of the proposed treatment – whether the child is Gillick competent –  whether medical practitioners are authorised to perform the proposed treatment, subject to the consent of the child.

Re Imogen (No 6) (2020) 61 Fam LR 344.

Re Jamie (2013) 50 Fam LR 369.

COUNSEL:

S Holt QC with A Hughes for the applicant

SOLICITORS:

MinterEllison for the applicant

  1. [1]
    The applicant is the mother of A (“the child”). She seeks orders on behalf of the child for the administration of gender affirming hormone treatment, known as stage 2 treatment, for gender dysphoria.
  2. [2]
    The application is brought urgently because the medical opinion is that it is to the detriment of the child for the child not to receive the treatment at this time.
  3. [3]
    The child’s father, who is the respondent to the application, did not appear despite being given notice of the application. His position is, however, clear from correspondence that has been engaged in between him and the applicant’s instructing  solicitors, as well as medical practitioners involved in the child’s ongoing treatment.
  4. [4]
    The respondent’s position is that he does not consent to the child receiving stage 2 treatment. The respondent’s position also appears to be that he does not agree that there is a need for such treatment or, indeed, that the child has gender dysphoria.
  5. [5]
    The application is brought in this Court pursuant to the parens patriae jurisdiction. An issue which must be given consideration is whether, having regard to the fact that the child is the child of a married couple, this application ought in fact be heard by the Federal Circuit and Family Court.
  6. [6]
    The material indicates the Federal Circuit and Family Court is a Court that regularly deals with applications of this nature. Further, it has processes and procedures in place in relation to the dealing with such applications. It is not, however, the case that that Court has exclusive jurisdiction in respect of the matter and there is no doubt that this Court has a broad jurisdiction under the parens patriae jurisdiction.
  7. [7]
    In any event, the material indicates that, initially, an application was filed in the Federal Circuit and Family Court but, as a consequence of difficulties in obtaining a prompt hearing date in view of the urgency, that application was discontinued.
  8. [8]
    The application is brought in this jurisdiction on the basis that, historically, this is the jurisdiction that deals with matters concerning children. The parens patriae jurisdiction is a jurisdiction to act as the supreme parent of a child. It is a broad and potentially unlimited jurisdiction.
  9. [9]
    Whilst the Federal Circuit and Family Court has given consideration to the circumstances in which orders are to be made and it has been recognised by a decision of this Court that the Federal Circuit and Family Court is often seen as the appropriate jurisdiction to deal with the continuation of decisions to be made in respect of treatment for gender dysphoria, I am satisfied it is appropriate for this Court to hear the present application.
  10. [10]
    The urgency associated with it is of such a nature that it is not in the interests of the child for the application to be delayed further. I am also satisfied that the application, having regard to its particular aspects, is properly one to be considered in the parens patriae jurisdiction of this Court.
  11. [11]
    The child was born on [redacted], making the child now 16 years and almost 11 months. The child was born as what would be commonly referred to as female but identifies as male. He uses “he, him” for pronouns. He dresses as a male and he considers himself to be a male.
  12. [12]
    The child has been the subject of extensive assessment by multiple medical practitioners with a high degree of expertise in the relevant consideration of factors for gender dysphoria. Those practitioners include psychiatrists.
  13. [13]
    The Court has affidavits from six medical practitioners in relation to the child’s condition, treatment and recommendations as to further treatment.
  14. [14]
    An issue that must be considered first by the Court is whether the child is Gillick competent to consent to stage 2 treatment.
  15. [15]
    That issue is properly to be considered first because if the child is Gillick competent, then subject to some obiter dicta in a case to which I will refer shortly, that really should be the end of the matter. It is then a situation where the child, if giving consent to that treatment, is to receive the treatment notwithstanding the views of one or more of the child’s parents.
  16. [16]
    Having considered the material, I am satisfied the child is Gillick competent. It is apparent from the material that the child has indicated, over a considerable period of time, a consistent view that the child is male. The child has reported from a relatively young age of never feeling like a girl and of always feeling different.
  17. [17]
    There is a long history of gender non-conforming behaviour. There was a “coming out” in relation to the child’s views as early as age 11. The child has identified as a transgender male since year 9 and since 2017 has worn a full boys school uniform.
  18. [18]
    The child does suffer from autism spectrum disorder. It appears the child had insight into that condition in that, for a time, the child wondered whether in fact the view as to being not a girl was part of that condition.
  19. [19]
    Importantly, the child has, throughout the receipt of initial hormone treatment and the consideration of the stage 2 treatment, engaged with medical practitioners in a way which is consistent with a conclusion that the child has a considered understanding of what it means to feel like the child feels and why it is that the child wants to have the treatment.
  20. [20]
    The child also has an understanding of the nature of the treatment and of the consequences of the treatment, including adverse consequences that could arise from the treatment and the difficulties in reversing the effects of the treatment over time.
  21. [21]
    All of those matters are matters that are properly to be considered in determining whether the child is Gillick competent.
  22. [22]
    Having considered the material, I am satisfied the child is able to comprehend and retain the information relevant to the proposed treatment. The child is also able to describe, in appropriate terms, the nature of the treatment, its advantages and disadvantages. The child is apparently, with the help of the medical practitioners, able to weigh the advantages and disadvantages, to understand the consequences of it and has been clear in expressing a free view as to what the child would want in the circumstances.
  23. [23]
    I am also satisfied that the child has expressed an understanding of the consequences of the treatment, which is a relevant matter when considering whether there is a full and frank understanding of what the child is giving consent to.
  24. [24]
    Once it is concluded that the child is Gillick competent, the question must be asked why it is that a child who is almost 17 years of age, is Gillick competent and is firm in the view of what treatment they would like, should be denied the opportunity to do so without the consent of both parents. Such a conclusion would be inconsistent with the human rights of the child and a recognition of the importance of Gillick competence and its effect as a matter of law.
  25. [25]
    An issue which it is not necessary to formally decide but which must be considered by the Court, is a matter raised in Re: Imogen[1] when considering the earlier decision of Re: Jamie,[2]  in which the then Chief Justice of the Family Court expressed views in relation to the approval of treatment for gender dysphoria.
  26. [26]
    In Re: Jamie, the then Chief Justice expressed a conclusion that a child who is Gillick competent could consent to treatment and that no Court authorisation was required, absent any controversy. The controversy that was then referred to was a dispute between the parents regarding the treatment. In those circumstances there was a need for authorisation. That interpretation was followed more recently in Re: Imogen.
  27. [27]
    If it were necessary to decide, I would find that both Re: Jamie and, as a consequence, Re: Imogen, do not correctly state the law. In those circumstances, I would decline to follow those cases. However, as I consider it is correct to view the conclusions expressed by the Chief Justice as obiter dicta, it is not necessary to determine whether in fact the decision was wrong in law.
  28. [28]
    The conclusion that there is no need, once the child is Gillick competent, for Court authorisation means that it is unnecessary to consider a further aspect of the applicant’s application which was the making of declarations authorising the treatment. In coming to these conclusions, I have given consideration to the contents of the affidavits to satisfy myself that the child, first, has gender dysphoria and, second, that stage 2 treatment is appropriate in all of the circumstances.
  29. [29]
    There is overwhelming evidence that the child has gender dysphoria and there is no reason why the Court ought not to accept the detailed expert opinions expressed in the affidavit material relied on in the application. Further, that material supports an overwhelming conclusion that it is in the best interests of the child to undertake stage 2 treatment and that the child, knowing the consequences of that treatment, wishes to have that treatment and consents to the giving of such treatment.
  30. [30]
    That being so, it is appropriate to make the declaration sought, the consequence of that declaration being that the medical practitioners who received the child’s consent are, as a consequence of that consent, authorised to provide the treatment which is the subject of that consent.

Orders

  1. [31]
    For the above-mentioned reasons, it is ordered:
  1. The matter be heard in closed Court.
  2. The minor with which this application is concerned is not to be referred to by name in these proceedings but by the reference “A”.
  3. The identity of A is supressed such that the full name of the child, the child’s family members and their occupations, the child’s medical practitioners and other clinical staff, the hospital and health service, the hospital and any medical practices where the child may obtain treatment, and any other fact or matter that may identify the child must not be published in any way.
  4. Only anonymised Reasons for Judgment and Orders (with cover-sheets excluding parties’ real names) shall be released by the Court to non-parties without further contrary Order of the Court (it being noted that each party shall be hand one full copy of these Orders with the relevant details included, for provision to the treating medical practitioners and to enable their execution).
  5. Subject to any contrary order of the Court, the Court file must not be made available for search or review by any person who is not a party to the proceeding or a party’s legal representative in the proceeding.
  6. The affidavits, exhibits, written submissions and parties’ correspondence with the Court within this proceeding must be placed in a sealed envelope and may only be opened by further order of the Court (with the sealed envelope to be so marked).
  7. The audio recording of these proceedings not be published or made available except to Auscript for the purpose of making a transcript, or to the Court.
  8. Any transcript of the proceeding be made available only to a party to the proceeding or a party’s legal representative in the proceeding, or to the Court.
  9. A declaration be made in the following terms:

The Court declares that:

  1. (A)
    the child (“A”) born [redacted], is competent to consent to the administration of stage 2 treatment for the condition called gender dysphoria in adolescents and adults as set out in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5), 2013, Fifth Edition (“Treatment”); and
  2. (B)
    A may give valid and lawful consent to the administration of the Treatment to A;
  3. (C)
    The following persons may validly and lawfully act upon A’s consent, if given:
    1. (I)
      the [redacted], and medical practitioners and nurses acting on its behalf in providing medical and nursing services to A; and/or
    1. (II)
      such other health practitioner or Hospital and health service to which [redacted] may handover A’s care, as the case requires, for the purposes of administering the treatment.

Footnotes

[1] Re Imogen (No 6) (2020) 61 Fam LR 344.

[2] Re Jamie (2013) 50 Fam LR 369.

Close

Editorial Notes

  • Published Case Name:

    Re A

  • Shortened Case Name:

    Re A

  • MNC:

    [2022] QSC 159

  • Court:

    QSC

  • Judge(s):

    Boddice J

  • Date:

    31 Mar 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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