Re A

Some very sensitive issues arose in this recent matter. In a carefully considered judgment, his Honour considered whether it was appropriate to make a declaration that a child was competent to consent to the administration of stage 2 treatment for the condition called gender dysphoria. Relevantly, only one of the child’s parents supported the child’s wishes to undergo the treatment. His Honour held that undertaking the treatment was in the best interests of the child even though the Federal Circuit and Family Court also had jurisdiction. He also made extensive orders to ensure the child’s anonymity.

Boddice J

31 March 2022 (ex tempore)

The application had been brought urgently, since medical opinion indicated that it would be detrimental for the child to delay the treatment. [2]. The child’s father, the respondent, was opposed to the proposal that the child undergo treatment. [3], [4].

Jurisdiction

At the outset of the matter his Honour noted that the subject of the application was one which would typically be heard by the Federal Circuit and Family Court. [5], [6]. An application had initially been filed in that court, but it was dismissed due to difficulties in bringing the matter on urgently. [7]. Observing that that court does not have exclusive jurisdiction in respect of the matter and the Supreme Court has a “broad and potentially unlimited” jurisdiction under the parens patriae jurisdiction, [6], [8], his Honour was satisfied that it was appropriate for the Court to hear the application. [9], [10].

The question of Gillick competency

For a child to be deemed ‘Gillick competent’, he or she requires sufficient understanding and intelligence to enable him or her to fully understand what is proposed.

The evidence before the court revealed that the child had consulted widely with medical practitioners including psychiatrists. [12]. Six affidavits from medical practitioners in relation to the child’s condition, treatment, and recommendations as to further treatment were before the court. [13]. Having regard to those affidavits his Honour was satisfied as to the child’s Gillick competency, stating:

 “It is apparent from the material that the child has indicated, over a considerable period, 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.” [16].

It was plainly the case that the child fully appreciated all aspects of the proposed treatment, including its permanency, possible side effects, advantages, disadvantages, and consequences. [20]–[23].

Should the consenting child receive the treatment despite the views of one of the child’s parents?

A considerable hurdle for the applicant was the fact that she was the sole parent who consented to the proposed gender affirming hormone treatment. His Honour expressed the view that it could be considered “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” to deny the child treatment upon that basis. Relevantly, the child involved was almost 17 years old. [24].

In terms of the respondent’s opposition to the intended treatment, the court considered the approach taken in previous cases including Re: Imogen (No 6) (2020) 61 Fam LR 344 and Re Jamie (2013) 50 Fam LR 369. In those matters, the court had held that in applications where there was a dispute between the parents regarding the treatment, there was a need for court authorisation even where the child was Gillick competent. [25], [26]. In his Honour’s assessment, those cases misstated the law, and he concluded that there is no need for court authorisation in the case of a child who is Gillick competent. [27], [28].

Disposition 

The court held that the child was Gillick competent to give consent. Declarations were made allowing the medical practitioners who received the child’s consent to provide the treatment the subject of the consent.

A Jarro