GK & Anor v EE & Anor
Summary
In this rather unusual application, MacDonald J considered the emotive subject of when parents – or indeed the courts – can intervene in the personal lives of adolescents: in this case, the life of a 17 year old, non-binary individual, EE, in conflict with their parents.
The application was brought by EE’s parents seeking injunctive relief in both the Court of Protection and under the inherent jurisdiction of the High Court to prevent EE from having so-called “top” surgery (ie gender-affirming mastectomy) or taking testosterone treatment.
The application was unusual both because EE was almost 18 at the time of the application (and thus at the very limits of the powers of the Court exercising its Inherent Jurisdiction) but also – and most significantly – because there was no evidence that EE was in fact seeking any such surgery or hormone treatment. In fact, as MacDonald J spelled out towards the end of his judgment, “EE has made clear, and I accept, that whilst they aspire to undergo gender affirming medical treatment, including top surgery, there is no gender affirming medical treatment currently scheduled and nor will there be for some time” (paragraph 60, emphasis added).
The application was brought by EE’s parents, unrepresented by the time of the final hearing, who sought orders (a) to prevent EE from having the treatment they alleged was sought, (b) for evidence from an expert psychologist and psychiatrist (unidentified at the time of the hearing) concerning EE’s capacity to make decisions on gender-affirming treatment and (c) an order appointing the parents as EE’s personal welfare deputies.
Underlying the application was the parents’ challenged assertion that EE lacked capacity to make decisions on their treatment. The disconnect in the case presented by the parents concerning their child’s past and current presentation and that presented by EE themselves and by the local authority is striking.
The parents, relying on a one-line report from their native (anonymised) country to which EE had been returned during various stages of childhood, maintained that EE suffered from a “schizotypal personality disorder” and/or schizophrenia and that their sexual preference (EE is reported to describe themselves as lesbian (paragraph 67) was newly announced and their purported wish to undergo treatment “a form of self-harm” (paragraph 33).
EE’s evidence was that their parents had been aware of their sexuality since they were 11 years old but that they had stopped trying to convinced their parents about “being a LGBT” (paragraph 15) since they were 13 or 14. EE’s evidence was that their parents were very hostile towards their sexuality and ascribed it to mental illness.
In contrast to the picture painted by the parents, the local authority, which, as of November 2022 was providing care for EE pursuant to s.20 Children Act 1989, described EE as “a mature, independent teenager who can articulate their feelings and emotions positively” (paragraph 22). The local authority informed the court that “at no point have any professionals shared a concern for EE and her mental health”.
It was in this context that the parents made an application under the inherent jurisdiction in June 2023, and in the Court of Protection by way of COP1 in July 2023, seeking an order “preventing surgery or medical treatment in respect of gender reassignment / removal of breast in the interim” (paragraph 57).
In response to these applications, as MacDonald J recorded at paragraph 5 of his judgment:
both EE and the local authority invite the court to conclude that, in circumstances where there is no gender affirming medical treatment scheduled, a decision with respect to EE’s capacity to make decisions in that regard would be inappropriate where there is currently no “matter” for the purposes of s.2(1) of the Mental Capacity Act 2005 to be decided. In any event, both EE and the local authority submit that the evidence currently available in this case is plainly insufficient to rebut the presumption of capacity with respect to decisions concerning gender affirming medical treatment from which EE benefits pursuant to s.1(2) of the Mental Capacity Act 2005. In each of these circumstances, EE and the local authority contend it is not necessary for the court to have an expert report in the proceedings in the Court of Protection in order to determine the issue of capacity. Accordingly, both EE and the local authority invite the court to dismiss the proceedings in the Court of Protection. They further invite the court to dismiss the proceedings under the inherent jurisdiction.
MacDonald J set out the law relating to capacity, following his earlier “masterclass” in capacity, North Bristol NHS Trust v R [2023] EWCOP 5, in terms of the assessment of capacity, from which the following (at paragraph 45) is of particular importance:
It follows that “in order to determine the question of capacity under Mental Capacity Act 2005 in accordance with the legal framework set out above, there must first be before the court a correctly identified and formulated “matter” that falls for decision proximate in time to the point at which the court determines the question of capacity. Absent this being the position, the court is unable to satisfy itself with respect to the remaining cardinal steps of the exercise of its jurisdiction under Part 1 of the 2005 Act as summarised in the previous paragraph. Namely, what is the information relevant to the decision, is the person unable to make a decision on the matter and, if the person unable to make a decision on the matter, is that inability caused by a disturbance in the functioning of their mind or brain (emphasis added).
In terms of jurisdiction, MacDonald J set out that s.8 Family Law Reform Act 1969 taken with the House of Lords finding in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 plus the Mental Capacity Act 2005 provided that:
- (as set out by Sir James Munby in NHS Trust v X [2021] EWHC 65 (Fam), “(1) Until the child reaches the age of 16 the relevant inquiry is as to whether the child is Gillick competent. (2) Once the child reaches the age of 16: (i) the issue of Gillick competence falls away, and (ii) the child is assumed to have legal capacity in accordance with section 8 [Family Law Reform Act 1969], unless (iii) the child is shown to lack mental capacity as defined in sections 2(1) and 3(1) of the Mental Capacity Act 2005;”
- Unless there is a rebuttal of the presumption of mental capacity under s.1(2) MCA 2005, whilst between the age of 16-18, P (or EE in this case) could consent to medical treatment (which would include hormone treatment or surgery if such treatment were available) under s.8 of the Family Law Reform Act;
- Once over 18, EE could consent to treatment save in circumstances where the capacity to consent to treatment is rebutted.
MacDonald J noted that there was “at present no cogent evidence demonstrating that EE is a young person who suffers from schizophrenia or a schizotypal personality disorder or is a young person who has issues with respect to their capacity generally” (paragraph 67). His judgment makes clear however, that the court – whether the Court of Protection or the High Court exercising its inherent jurisdiction – had not even got to the point of having to reach conclusions as to EE’s capacity to make decisions regarding gender affirming medical treatment in circumstances where there was no evidence that any such treatment was presently proposed or available. In those circumstances he held (at paragraph 60) that:
I am satisfied that it is not possible in this case at present to identify the “matter” for the purposes of s.2(1) of the 2005 Act with any greater particularity than the formulation used in the parents’ Annex B form, namely “surgery or medical treatment in respect of gender reassignment/ removal of breast.” In my judgment, that formulation of the matter is not a sufficient basis on which to assess capacity having regard to the principles I have set out above. Further, and of equal importance, the absence of any scheduled gender affirming medical treatment necessarily means that the court would not be assessing EE’s capacity in that regard sufficiently proximate in time to the decision falls to be made. For the court to make what, in effect, would be anticipatory declarations as to EE’s capacity with respect to a broad category of medical treatment would run entirely contrary to the cardinal principles of the 2005 Act.
Having reached such a conclusion, MacDonald J determined that any expert would be in entirely the same position of being unable to identify the “matter” on which he/she was being asked to assess EE’s capacity and that any expert evidence would thus be “unnecessary” within the meaning of COPR 15.
Further, MacDonald J was:
68. […] satisfied in the foregoing context that it is not necessary for the purposes of Part 25 of the FPR 2010 to give permission for expert psychological and psychiatric evidence. In circumstances where the court’s jurisdiction in respect of EE under the inherent jurisdiction comes to an end during September 2023, I am in any event satisfied that it would be wholly disproportionate to permit the instruction of an expert in the proceedings under the inherent jurisdiction. Having regard to the matters set out above, I further refuse to grant an injunction under the inherent jurisdiction preventing EE from undergoing gender affirming medical treatment.
The parents’ application was, unsurprisingly, dismissed.
Comment
The complex facts of this case (and the sad story they tell of family breakdown) notwithstanding, this is now a relatively well-trodden area of law.
The assessment of capacity draws back to first principles: the burden of proving a lack of capacity lies on those asserting the same; the court when assessing capacity must look at the actual decision which it is being said P is unable to make.
In circumstances where there was in fact no surgery or hormone treatment either in contemplation or actually available, the only conclusion that the court could draw was that there was simply no decision on which the court’s assessment could “bite”.
As to the reach of parental power, the courts have reviewed this at some length in recent years, both in NHS Trust v X [2021] EWHC 65 (Fam) to which MacDonald J referred, but also the Tavistock litigation, not just the Court of Appeal in Tavistock v Bell [2021] EWCA Civ 1363 but also the antecedent judgment of Lieven J in AB v CD [2021] EWHC 741 (Fam).
One point of no little interest whilst we wait for the final report of the Cass Review into gender identity services for children and young people is MacDonald J’s confirmation that gender affirming medical treatment constitutes ‘medical treatment’ for purposes of the Family Law Reform Act 1969. Whilst on the face of this might appear obvious, such is the controversy around these issues that it would not have been entirely surprising had the parents advanced the argument that such interventions did not constitute ‘medical treatment’ for purposes of the FLRA.
