O v P [2024] EWCA Civ 1577

Gender dysphoria The High Court had dismissed proceedings rather than adjourn because it could not see any realistic basis for overriding the 16-year-old's consent for cross-sex hormones. The Court of Appeal reversed that decision because: (1) Gender Plus, a private provider, could not satisfy all the Cass Review recommendations, including that every medical treatment case be considered by a national MDT; (2) the Cass Review had only just been published when the judge heard the application, and there was sufficient doubt as to what is proper and appropriate in this area.

Essex

This case has been summarised on page 20 of 39 Essex Chambers, 'Mental Capacity Report' (issue 147, February 2025).

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.

Court of Appeal

O v P and another

[2024] EWCA Civ 1577^B

Sir Geoffrey Vos MR, Sir Andrew McFarlane P, King LJ

2024 Dec 12; 19

Children— Court’s inherent jurisdiction— Medical treatment— Parents disagreeing on process to address 16-year-old’s gender dysphoria— Proper approach to court’s inherent jurisdiction to override consent to medical treatment given by child over 16 on best interests grounds— Whether cross-sex hormone treatment in special legal category

The 16-year-old young person was born female and started to identify as a male at age 12. His parents separated and disagreed as to the processes which should be followed to address his gender dysphoria. The mother sought a prohibited steps order under section 8 of the Children Act 1989 to prevent the father from arranging for the young person to access treatment for gender dysphoria and a best interests declaration under the court’s inherent jurisdiction. The judge refused her application to adjourn proceedings pending a six-month assessment being undertaken in respect of the young person by a private gender dysphoria clinic, holding that, there being no realistic basis upon which the court would override the young person’s consent to treatment by a regulated provider or clinician in the United Kingdom, there was no legitimate purpose for adjournment and that, in any event, it was in the young person’s best interests to bring the proceedings to an end.

On appeal by the mother—

Held, appeal allowed. The court’s inherent jurisdiction to override consent to medical treatment given or withheld by a young person over 16 on best interests grounds was not a general welfare jurisdiction but a very limited and well-defined one. Whether a best interests application in respect of a young person over 16 should be kept alive as a precaution in case it might become necessary for the court in the future to consider it again depended on whether now or in the future the court could or should override any consent given by that young person for the relevant medical treatment. The administration of cross-sex hormone treatment was not in a special legal category of medical intervention which always required the sanction of the court. In the present case the judge erred in not placing enough weight on the rapidly changing regulatory environment and the situation of private providers in the light of the recommendations made by the recently published Independent Review of Gender Identity Services for Children and Young People. There was sufficient current doubt as to what was proper and appropriate in that area such that it would be a wiser course to keep the proceedings alive at least until the clinic’s assessment of the young person had been completed and could be considered, if necessary, by the court in circumstances where there continued to be genuine disagreement between the parties. Accordingly, those were legitimate purposes requiring the case to be adjourned rather than dismissed at the present stage (paras 2–3, 7, 38–43, 44, 45, 47).

In re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64^{Not on Bailii!}, CA applied.

R (Bell) v Tavistock and Portman NHS Foundation Trust [2022] PTSR 544 considered.

Per curiam. Courts should always be clear as to the legal tests they are applying. It is important to distinguish between three possible issues with which the courts have to deal. First, the issue of whether a child under 16 is competent to consent to or to refuse medical treatment: see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112^B and R (Bell) v Tavistock and Portman NHS Foundation Trust [2022] PTSR 544. Secondly, the issue of whether a child (but also an adult) has mental capacity to consent to or to refuse medical treatment under sections 1–6 of the Mental Capacity Act 2005. Thirdly, the issue of what is in the best interests of a young person where it is suggested that the court should override a young person’s decision under section 8 of the Family Law Reform Act 1969: see In re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64^{Not on Bailii!} (paras 2, 42, 45, 47).

Decision of Judd J [2024] EWHC 1077 (Fam)^M reversed.

Jeremy Hyam KC and Alasdair Henderson (instructed by Sinclairslaw Ltd) for the mother.

Deirdre Fottrell KC and Tom Wilson (instructed by Irwin Mitchell LLP) for the father.

Allison Munroe KC and Emma Favata (instructed by Tozers LLP) for the young person.

Fraser Peh, Barrister

CASES DATABASE

Full judgment: BAILII

Subject(s):

Miscellaneous cases🔍

Date: 19/12/24🔍

Court: Court of Appeal (Civil Division)🔍

Judicial history:

Judge(s):

Vos🔍
McFarlane🔍
King🔍

Parties:

Citation number(s):

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Published: 14/2/25 21:25

Cached: 2025-04-11 01:17:40