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

With respect to the wider legal context within which the current case management decision falls to be taken, B is over the age of 16 years. Within this context, s. 8(1) of the Family Reform Act 1969 (hereafter “the 1969 Act”) provides as follows:

“The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.”

No party seeks to dispute, in the present context, that the prescription of spironolactone and oestrogen to children and young people who seek gender affirming treatment constitutes medical treatment for the purposes of s.8(1) of the 1969 Act. Pursuant to s.8(1) of the 1969 Act, as a 17-year-old young person B is competent to provide effective consent to that medical treatment as if she were an adult and in the absence of consent by her parents (see In Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] 1 FLR 1 at [16]).

As with an adult, those medical professionals providing B with medical treatment must decide whether or not she has capacity within the meaning of the Mental Capacity Act 2005 (hereafter “the 2005 Act”). Section 1(2) of the 2005 Act contains a presumption of capacity and s.1(4) provides that B is not to be treated as unable to make a decision merely because she makes an unwise decision. In PC & NC v City of York [2013] EWCA Civ 478, the Court of Appeal noted at [54] that:

“...there is a space between an unwise decision and one which an individual does not have the mental capacity to take.... it is important to respect that space and to ensure that it is preserved, for it is within that space that an individual’s autonomy operates.”

In the foregoing circumstances, and relying on An NHS Trust v X [2021] EWHC 65 (Fam) at [55], this court summarised the effect of the wider legal framework in the context of which the best interests decision before the court falls in GK v EE [2023] EWCOP 49 at [49], a case in which the parents of a young person sought to prevent gender affirming treatment to a young person over the age of 16:

“Accordingly, unless the presumption of capacity from which EE benefits under s.1(2) of the 2005 Act is rebutted, whilst under the age of 18 EE is able to give effective consent to lawful gender affirming medical treatment pursuant to s.8 of the Family Law Reform Act 1986 in circumstances where they are over the age of 16...Once over the age of 18, unless the presumption of capacity under s.1(2) of the 2005 Act is rebutted, EE is able to give effective consent to lawful gender affirming medical treatment as a capacitous adult.”

Finally, and crucially in the context of deciding whether it is necessary to give permission to instruct an expert consultant psychiatrist and / or an expert consultant endocrinologist, the ability of a young person over the age of 16 to give effective consent as to medical treatment is not absolute, as court retains a welfare jurisdiction to override that consent in certain circumstances (Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993] Fam 64. The circumstances in which a court may override consent were expressed by Nolan LJ in Re W (A Minor) (Medical Treatment: Court's Jurisdiction) to be, specifically, where it is necessary for the court to intervene to protect the child or young person from “grave and irreversible mental or physical harm”. Thus, as made clear by the President of the Family Division in O v P [2024] EWCA Civ 1577 at [46], the court’s best interests jurisdiction is not, in this context, a general welfare jurisdiction. In deciding whether it is in the child or young person’s best interests to override their consent, it was further made clear in Re W (A Minor) (Medical Treatment: Court's Jurisdiction) that in determining whether to exercise its jurisdiction to do so, the court will take particular account of the child or young person’s wishes, the importance of which will increase with his or her age and maturity.

In the foregoing context, in O v P at [2], the Master of the Rolls summarised the overall legal position as follows (emphasis in the original):

“It is useful at the outset to distinguish between three possible issues with which the courts have to deal. First, there is the issue of whether a child under 16 is competent to consent or to refuse medical treatment (see Gillick v West Norfolk and Wisbech AHA [1986] AC 112 (Gillick), and more recently R(Bell) v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All ER 416 (Bell v Tavistock). Second, there is the issue of whether a child (but also an adult) has mental capacity to consent to or to refuse medical treatment (see sections 1-6 of the Mental Capacity Act 2005). Thirdly, there is the issue of what is in the child’s best interests. This issue arises once the presumption as to competence of a child over 16 to consent or refuse medical treatment is engaged (see section 8 of the Family Law Reform Act 1969 (FLRA 1969), which provides that a child over 16 can give consent in the same way as an adult, and not further consent is required from parents or guardians). Despite section 8, the court still retains the right to override consent given or withheld by a child over 16 on welfare or best interests grounds in very limited and well defined circumstances (see Re W (A Minor)(Medical Treatment: Court’s Jurisdiction) [1993] Fam 64 (Re W).”

Turning to the relevant legal principles governing the instruction of experts, the parents’ applications in respect of B are brought under the Children Act 1989 and the inherent jurisdiction of the High Court. The proceedings in respect of B are therefore “children proceedings” as defined by r.25.2(1) and r.12.1 of the FPR 2010. In these circumstances, the applications for expert evidence before the court fall to be determined according to the statutory framework contained in s. 13 of the 2014 Act and Part 25 of the FPR 2010.

Section 13 of the 2014 Act controls the use of expert evidence in children proceedings. Section 13 of the 2014 Act provides as follows, in so far as is relevant for present purposes:

“13 Control of expert evidence, and of assessments, in children proceedings

(1)

A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings.

(2)

Where in contravention of subsection (1) a person is instructed to provide expert evidence, evidence resulting from the instructions is inadmissible in children proceedings unless the court rules that it is admissible.

(3)

A person may not without the permission of the court cause a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings.

(4)

Where in contravention of subsection (3) a child is medically or psychiatrically examined or otherwise assessed, evidence resulting from the examination or other assessment is inadmissible in children proceedings unless the court rules that it is admissible.

(5)

In children proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.

(6)

The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.

(7)

When deciding whether to give permission as mentioned in subsection (1), (3) or (5) the court is to have regard in particular to—

(a)

any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed,

(b)

the issues to which the expert evidence would relate,

(c)

the questions which the court would require the expert to answer,

(d)

what other expert evidence is available (whether obtained before or after the start of proceedings),

(e)

whether evidence could be given by another person on the matters on which the expert would give evidence,

(f)

the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings,

(g)

the cost of the expert evidence, and

(h)

any matters prescribed by Family Procedure Rules.

.../”

Pursuant to FPR 2010 r.25.11(1), where two or more parties wish to put expert evidence before the court 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. Paragraph 2.1 of FPR 2010 PD 25C identifies that, wherever possible, expert evidence should be obtained from an expert jointly instructed by both or all the parties. Mr Sachdeva and Mr Hadden submit that in cases concerning the medical treatment of children it is the practice to allow a second opinion as a matter of course. They cite a number of cases where this has occurred on the facts of the case in question.

In this case, it is proposed that the expert or experts instructed are drawn from overseas jurisdictions. In such circumstances, the court must have regard to the 2011 Guidelines for the Instruction of Medical Experts from Overseas in Family Cases. The Guidelines make clear that foreign experts must be instructed in accordance with FPR 2010 Part 25.