FD25P00172 and FD25P00173 - [2025] EWHC 1325 (Fam)

As I have noted, all parties contend that it is necessary for the court to have the assistance of a consultant endocrinologist in order to determine the proceedings justly. I agree. In contradistinction to their being no evidence that B lack’s capacity in the relevant decision-making domains or that B is suffering or is likely to suffer grave and irreversible psychiatric harm were her treatment to continue, the evidence before the court demonstrates that B is currently receiving HRT in the form of spironolactone and oestrogen. The parents seek to prevent B from continuing with that treatment. Within this context, the court does not have expertise on the benefits and risks of HRT used as “cross-sex hormone” gender affirming treatment. Further, the court has no expertise on the benefits and risks of ceasing such treatment after it has commenced, or of continuing such treatment once it has commenced. In the circumstances, I concur that it is necessary for the court to have the assistance of an expert endocrinologist.

The issue between the parties is the identity of the appropriate expert endocrinologist. As I have noted, the parents seek permission to instruct Professor Jovanna Dahlgren, Head of Department, Institute of Clinical Sciences, and Professor and Chief Physician, Department of Paediatrics, University of Gothenburg, Sweden. On behalf of B, Ms Fottrell and Ms Baker propose that permission be given to instruct Dr Cotterill, Consultant Specialist in Paediatric Endocrinology based in Brisbane, Australia and qualified in England and Wales. Having compared the two experts proposed, and recognising the distinguished qualifications and experience of each, I am satisfied that Dr Cotterill should be instructed to provide the expert endocrinological report.

Dr Cotterill has experience of being instructed in other cases of this nature in the jurisdiction of England and Wales, including an unreported case before the President of the Family Division. Dr Cotterill is able to report within two weeks of receiving his instructions. I also bear in mind that it is easier to divine from Dr Cotterill’s CV his relevant clinical experience than it is from that of Professor Dahlgren. In particular, Professor Dahlgren’s current clinical experience is not immediately apparent from her CV, as compared to her impressive academic standing. Whilst not determinative, in circumstances where it is B above all others who will have to live with the consequences of what this court decides and that it is important for her to have faith in this process, I also bear in mind that Dr Cotterill is B’s preferred choice. In circumstances where Dr Cotterill is based in Brisbane, in reaching my conclusion I have had regard to the principles set out in the 2011 Guidelines for the Instruction of Medical Experts from Overseas in Family Cases.

It is not necessary for me to pass comment on the submission made on behalf of B that the publications of Professor Dahlgren evidence a fixed view with respect to the issues before the court, save to observe that, once again, the issue before the court is the impact on B of continuing or ceasing gender affirming treatment and not the merits and consequences of gender affirming treatment generally. Whilst Mr Sachdeva and Mr Hadden submit that apparent interest in the outcome of the proceedings in which the expert gives evidence is not automatically a precondition to the admissibility of his or her evidence in court, relying on Factortame Ltd v SSETR [2002] EWCA Civ 932 at [70], having regard to the issues in this case I am satisfied that the court is best served by expert evidence it can be confident will concentrate on the science and medicine of HRT as a gender affirming treatment for B, rather than on the wider social, political and philosophical question of the merits of gender affirming treatment generally. An expert who focuses on the relevant science and medicine and its impact or otherwise on the subject child, rather than on the wider social, philosophical and political context in which that science and medicine is developing, is likely to be of most assistance to the court, having regard to the role of a jointly instructed expert and the duties of that jointly instructed expert under FPR 2010 Part 25. None of this is to impugn the work of Professor Dahlgren and her informed point of view, but rather simply to prefer the expertise and clinical focus of Dr Cotterill on the facts of this case.

I am not satisfied that it is appropriate in this case also to give permission to the parents to instruct their own expert endocrinologist. Pursuant to FPR 2010 r.25.11(1), where two or more parties wish to submit expert evidence on a particular issue the court may direct that the evidence on that issue be given by a single joint expert in accordance with the provisions of r.25.12, FPR 2010. Whilst FPR 2010 r.25.11(1) is permissive in its terms, Paragraph 2.1 of FPR 2010 PD 25C emphasises the desirability of the court hearing from a single joint expert by stipulating that, wherever possible, expert evidence should be obtained from an expert jointly instructed by both or all the parties.

I am not able to accept the submission of Mr Sachdeva and Mr Hadden that cases concerning the medical treatment of children form a special category in which it is the practice to allow a second opinion as a matter of course. Whilst they are able to identify a number of cases which, on the facts of those cases, have resulted in the court acceding to a second expert, there is no provision in the rules mandating such an approach in specified categories of case and no authority was cited to the court in support of such a general principle. In the circumstances, the test for a second expert on the same area of expertise remains that of necessity for the purposes of s.13 of the 2014 Act. It is almost axiomatic that such a test falls properly to be applied after the receipt of the relevant jointly instructed expert report. Accordingly, if following the receipt of the report of Dr Cotterill, the parents can demonstrate that a second opinion is necessary having regard to the issue the court is required to decide, it is open to them to make an application to that end.

Finally, there is also an issue between the parties as to the scope of the questions to be put. In keeping with the parents tendency to seek to examine wider questions of policy and principle arising from gender affirming treatment, including those they contend arise from the Cass Review and the “implementation” of the recommendations in that report, the questions as drafted by the parents go somewhat wider than I consider is necessary to enable the court to resolve the issue before it justly. To repeat, the issue before the court is the impact on B of continuing or ceasing gender affirming treatment and not the merits and consequences of gender affirming treatment generally.

In the circumstances, I am satisfied that the following questions fall to be addressed in the report of the expert endocrinologist: