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

The applicants advance their argument that a report from an expert psychiatrist is necessary on two bases. First, that B lacks capacity in the relevant decision making domains. Second, that in determining whether it is in B’s best interests to continue or to cease HRT, the court needs to understand the psychological and / or psychiatric impact on B of one or other of those steps being taken, in circumstances where the court’s jurisdiction to override her consent is narrowly founded on the question of whether an order is necessary to protect B from grave and irreversible mental or physical harm.

With respect to the question of capacity, at the last hearing the court made clear to the applicants that they needed to set out the evidence on which they rely in order to demonstrate that B lacks capacity in the relevant decision-making domains. Beyond an assertion in the father’s statement that conversations with B raise in the father “concerns” about B’s mental health and “doubts” as to whether B: (i) has been provided with all relevant information, including all material risks and alternative treatment; (ii) her ability to understand, use or weigh that information considering a “fixed viewpoint” on the issue, no such evidence has been forthcoming.

Against such assertions, in these proceedings B now directly instructs her solicitor, who is satisfied that she has litigation capacity. As I have noted, B also has the benefit of a CAFCASS Guardian. Ahead of this hearing, her solicitor and Children’s Guardian met with B. Whilst I did not hear evidence on the point from the Children’s Guardian, in their Position Statement Ms Fottrell and Ms Baker set out the view of the solicitor and of the Children’s Guardian that B is eloquent, articulate, well-presented and sensible and does not resemble the father’s description of her in the evidence filed to-date. During the course of her oral submissions, which the applicants did not attempt to gainsay, Ms Fottrell relayed that B is committed to her education and is taking A levels in chemistry, biology and French. Within this context, B wished the court to know that she finds it insulting that her ability to investigate treatments, understand them and act responsibly with the assistance of her General Practitioner in relation to her medical treatment is being questioned by a small group of individuals, including her parents, who have taken her to court in an effort to stop her treatment. B further emphasises that the law gives her permission to make her own decision and that is what she has done. Ms Fottrell informed the court that it is difficult to convey B’s strength of feeling that her personal story has become highly politicised. B told the Children’s Guardian that “I live in two opposite worlds, one in my household where I am seen as less than and the other outside the home where I am calm and grounded.”

Within the foregoing context, the overall assessment of the Children’s Guardian is that B is a mature and measured young person who has thought deeply about her situation and want she wants from life, and did not start taking HRT lightly. As I have noted, B has been assessed by Mr McGovern as competent to instruct her own solicitor in these proceedings. Ms Demery entirely concurs with that assessment and does not consider it necessary to seek a capacity assessment of B. Whilst this case turns on its own facts, I note the observation of the Master of the Rolls in O v P at [3] that in circumstances where, in that case, the young person in question was agreed to be “impressive, hardworking and intelligent” with no mental health problems, questions as to the young person’s mental capacity were unlikely to arise.

I acknowledge that the documents before the court evidence B as having had some involvement with CAMHS due to depression and possible ASD. However, the letter of 14 March 2025 from CAMHS confirms, for present purposes, that a consultant psychiatrist is of the view that B experiences gender incongruence with bodily related distress and has recommended intervention from the National Gender Incongruence Service. There is no cogent evidence that B has mental health difficulties to an extent that would impact on her capacity.

On the face of it, whenever a parent brings an application before the court asserting that a young person lacks capacity in the context of s.8(1) of the 1969 Act, there will be an “issue” as to capacity. That is not however, by itself, sufficient to meet the test of necessity. In the context of the presumption of capacity in s.1(2) of the 2005 Act, for an expert report to be considered necessary for the purposes of s.13 of the 2014 Act there must be at least some prima facie evidence that the young person in question may lack capacity in the relevant decision-making domains before the court will consider an expert report as to capacity to be necessary to determine the proceedings justly. To hold otherwise would be to undermine the presumption of capacity in s.1(2) of the 2005 Act. There is no such prima facie evidence in this case.

In support of the parents’ application for permission to instruct an expert psychiatrist, Mr Sachdeva and Mr Hadden further submit it would be a too narrow approach to exclusively focus on the physical impact of any hormone treatment via the assessment of an endocrinologist and that, in determining the question of best interests, and whether it is necessary in this case to override B’s consent to protect her from grave and permanent harm, the court will need expert assistance on the psychiatric consequences of continuing with gender affirming treatment or withdrawing it, which are an essential component of the Court deciding what course of action is in B’s best interests. I am not persuaded by that submission.

The parents’ argument that the psychiatric consequences of, as they put it, “continuing with an inappropriate, negligently given, life altering treatment or withdrawing it” are an essential component of the Court deciding what is in B’s best interests, is based solely on their view that the fact of B’s gender incongruence (as now assessed by CAMHS) and the “bridging prescription” she receives, amount to prima facie evidence of grave and permanent psychiatric harm necessitating an expert psychiatric report. However, beyond the parents’ strongly held view of what they see as the inevitable result of the treatment B is receiving, there is currently no cogent evidence before the court suggesting that B is suffering, or is likely to suffer, grave and irreversible psychiatric harm such that the court needs an expert psychiatric assessment of her in order to determine her best interests. Indeed, the letter of 14 March 2025 from CAMHS confirms that a consultant psychiatrist is of the view that B experiences gender incongruence with bodily related distress and has recommended intervention from the National Gender Incongruence Service. The assessment of Children’s Guardian is that, save for the stress caused by the litigation of these proceedings, B is generally happy and doing well in school. She does not have a forensic history of significant mental health issues and has had limited and appropriate interactions with CAMHS.

In these circumstances, the parents’ submission regarding the need for psychiatric evidence to inform the best interests decision amounts to contending that expert evidence is necessary to assist the court to determine whether B has been misdiagnosed and / or whether gender affirming treatment is psychiatrically harmful generally. There is no evidence to support the former contention. Once again, the evidence in the form of the recent communication from CAMHS reinforces the basis on which her current prescription of HRT is said by her General Practitioner to be justified. With respect to the latter contention, the court is concerned with impact on B of continuing or ceasing gender affirming treatment and not with the psychiatric or psychological consequences of gender affirming treatment generally. B herself does not seek permission for expert psychiatric evidence on the impact on her mental health of ceasing HRT treatment, and I am satisfied that the court can take judicial notice of the fact that, on the evidence before the court, such impact is likely to be a negative one when viewed from B’s perspective.

Finally, s. 13 of the 2014 Act requires the Court to consider the permission for expert evidence with regard to the impact on the welfare of the subject child. I accept the submission of Ms Fottrell that it would have an adverse impact on B’s welfare to direct an assessment that she is vehemently against, and for her to know that there is a psychiatrist considering deeply personal elements of her life before writing a report to be sent to the court in circumstances where there is no evidence that she suffers from a psychiatric illness or lacks capacity in the relevant decision-making domains.

In the foregoing circumstances, I am not satisfied that it is necessary for the court to give permission to instruct an expert psychiatrist in order to resolve these proceedings justly and I decline to do so.