G (Notice to Parents: Duty of Local Authority under s22(4) CA 1989)

I am concerned with a young person, G, who is currently in the care of the local authority pursuant to the order of HHJ X at the conclusion of care proceedings. G’s parents have separated, she sees them separately each month for supervised contact. At her request G was referred at the end of 2017 to the Tavistock Gender Identity Clinic (GIDS) having experienced gender dysphoria.

The local authority have applied to the court under the inherent jurisdiction to seek a declaration that they are not under any duty pursuant to section 22 (4) Children Act 1989 (’CA 1989’) to inform G’s mother of this or any steps taken as part of that referral, in particular any therapeutic assistance G may have as part of that referral. Additionally, they seek an order that the mother should not be informed of this application.

As a result, G’s mother, although a respondent to this application, has had no notice of it due to concerns that informing her of the application is likely to be detrimental to G’s psychological and physical welfare.

G’s father was in a similar position until recently, when G agreed he should be informed of the position. He learned of G’s position initially via the allocated social worker. As candidly explained in the document statement filed on his behalf for this hearing, he has struggled with coming to terms with this information but has indicated he is supportive of G seeking the assistance she seeks. He attended this hearing in person as a litigant in person and repeated this position in eloquent terms.

G is represented in these proceedings by Ms Stanley, through her Guardian Ms Julian. At the court’s direction, Ms Julian conducted an assessment of G. She concluded G is Gillick competent in matters relating to these proceedings. No issue has been taken with that assessment. Ms Stanley submits on G’s behalf the declaration is not needed, as the Local Authority can make the decision not to inform the mother of the referral and the likely therapeutic assistance under the existing provisions of s 22(4). This is because G is Gillick competent, her wishes have remained consistent that she does not want her mother to be informed and there is evidence to support the conclusion if she was informed G is likely to suffer psychological harm.

Both the local authority and the Children’s Guardian are agreed that the considerations would be different in the circumstances of any proposed medical intervention.

The issues for the court are:

The court is extremely grateful for the careful and thoughtful skeleton arguments submitted by Ms Barrie (including the earlier skeleton argument prepared by Judith Charlton) on behalf of the local authority, and Ms Stanley on behalf of the Guardian.

G attended this hearing, albeit after it had started. She indicated she did not wish to meet separately with me but wanted to sit in court and listen to the remaining legal argument. She sat in court with her father for the last hour of the hearing, I explained to her what was going to take place. Importantly she was able to hear her father explain to the court in the way that he did his support and understanding for G’s position.

G and her sibling, H, were each made the subject of a care order, with care plans for long term foster placement, remaining with their current foster carer. Arrangements were in place for monthly supervised contact with each parent. Since the final care order H moved to alternative carers, G wished to remain where she was and after further assessment that was agreed.

The care proceedings were instigated due to allegations of unlawful and unreasonable chastisement of both children by their mother. The precipitating event was when H telephoned the out of hours team to disclose that she was afraid to go home that evening as she feared what her mother would do, alleging that she had been slapped by her mother that morning and that she was regularly chastised with implements, such as a belt and a slipper. The evidence at the final hearing indicated such chastisement started in 2010. There followed a further referral in 2013, following which the case was closed and then the incident that precipitated the care proceedings being instigated took place.

The police were involved and initially the children were placed with an older sibling, but she was receiving medical treatment at the time and had unsatisfactory accommodation, G and H were then placed with foster carers, where they remained until the hearing.

The parents had separated, G and H remained living with their mother.

During the final hearing of the care proceedings the mother’s position changed, initially denying the allegations and seeking the return of G and H to her care. As the hearing progressed, she made some limited admissions about chastisement and by the end of the hearing she was no longer seeking either G or H to be returned to her care.

Prior to the final hearing the mother was having twice weekly contact with G and H, the plan following the care order was for it to be reduced to monthly contact separately for each parent.

The father supported the local authority case in terms of the allegations and sought the care of G and H, if necessary, separating from his current partner and seeking his own accommodation. Whilst the local authority and Guardian accepted the father’s good relationship with G and H, they did not support his position to care for them full time due to his failure in the past to protect G and H.

In the detailed judgment at the conclusion of the care proceedings HHJ X concluded that the allegations made by both G and H in their ABE interviews as being ‘truthful and compelling narratives’ of the extent of the physical and emotional harm they had suffered as a result of their mother’s behaviour towards them. The schedule of findings made at the conclusion of that hearing set out the detail of the harm the court found and the conclusion that G had an insecure and ambivalent attachment to her mother.

About three years ago G informed her then social worker she was in a relationship with another girl and did not want her mother to know, due to her mother’s religious beliefs.

G self-harmed with a razor and was experiencing difficulties at school that were considered to be linked to her sexuality. She expressed concern to her social worker about her mother knowing about her sexuality.

About two years ago G first spoke to her current social worker, about her gender identity. G has remained consistent about not wanting her mother to know about any issues about her sexuality or her gender identity, as she was concerned about her mother’s reaction and/or that her mother would disown her. This was based on a discussion G reported she had had with her mother about a friend of G’s being gay, her mother’s response was to re-state her religious views and her disapproval of such choices.

More recently, G enquired about a referral to the Gender Identity and Development Service (GIDS). The referral was made and accepted about a year ago. There is a twelve-month waiting list before she can be seen. GIDS is a multi-disciplinary team which will begin a psycho social assessment over six months to determine if further intervention is required. This will enable G to work through the internal conflicts she is currently experiencing, including the impact of gender transition on her relationship with her parents.

The local authority issued their application on 7 January. Initially they sought a declaration that ‘it is lawful to withhold information and not to consult [G’s] parents in respect of any aspect of her gender identity’. In their skeleton argument in April 2018 that was refined to the following:

On the application being referred to me I joined the G as a party, and on 8 March made directions for skeleton arguments to be filed on behalf of the Local Authority and G. I directed that neither parent should be given notice of the application, orders or any evidence filed by the local authority.

At the next hearing on 4 May I continued the order that the parents should not be notified and provided for updating evidence from the local authority regarding G’s anxiety about her parents being informed of the application and the extent it was known whether the parents were in contact with each other. In addition, I directed a Gillick assessment of G in relation to issues concerning her gender identity and whether her parents should be informed of them, or not. This was undertaken by Ms Julian and is dated 22 May 2018. In that assessment she concludes G is Gillick competent ‘as far as these proceedings are concerned, and in all areas of them. With regards to her mother, I am very encouraged that [G] has taken a first step in being honest with her about her sexuality. Whilst I support [G] in her wish that her mother is not informed of the GIDS referral and the therapeutic intervention to follow, at this time, I feel it crucial that work continues with [G] to enable her to reach a time when she feels able to tell her about it. I also support [G’s} wish that her mother should not be informed of these proceedings. [G’s] reasons for this are sensible and understandable and I do not see how going against her wishes at this time could be considered in her best interests.’

The hearing on 22 June was adjourned to 15 October, as there was a growing consensus that G’s father should be informed of the application and the issues relating to G’s gender identity.

Over the summer G discussed with her social worker and others about how the issue would be approached with her father. Following further discussion G agreed that the allocated social worker should discuss it with him first, which she did in September. Following that G has been able to discuss it with him directly. He understands the confidentiality of the issue and has agreed not to discuss it with the mother, with whom he has no ongoing contact. It was agreed prior to the hearing on 15 October G’s father should be given notice of the hearing and be served with the documents. The father attended the hearing on 15 October, that hearing was adjourned to 19 November to enable him to secure legal advice and file a position statement prior to the next hearing.

The local authority offered to fund legal advice for the father. The position statement filed on his behalf by Ms Hollmann confirms his support for the application, the mother not to be notified and is content for the information flow from the local authority to him about G is guided by G’s agreement. His hope is that G would feel increasingly confident to discuss such matters with him directly, now the social worker has already provided him with the core information with G’s agreement.

The position in relation to G’s mother has not changed. In early 2018 G had a discussion with her mother about her sexuality, G self-harmed shortly before this discussion and her foster carer’s view was this behaviour was due to G’s anxiety about discussing these matters with her mother. As the social worker’s statement describes G’s mental health has become increasingly fragile with further self-harm attempts, which the social worker considers are caused by her anxiety about her situation and, in particular, her mother’s attitude and behaviour relating to G’s sexuality.

The most recent statement from the social worker outlines the ongoing complexity and anxiety in G’s relationship with her mother, the impact it is having on G and how it can correlate to G’s self-harming behaviour. G is still continuing to see her mother monthly, although the more recent visits have finished earlier than scheduled.

The Local Authority remain of the view that G’s mother should not be served with or given notice of this application; if she was the very situation which this application is designed to avoid would arise, in that G’s emotional and physical welfare will be compromised by her mother’s likely response. This is considered to be the position even if she is given notice of the application only, as such a step is likely to arouse the mother’s curiosity and, in turn, place further pressure on G with the consequent risk to G’s emotional and physical welfare.

The allocated social worker has filed three statements which set out the detailed discussions she has had with G regarding the difficulties she is experiencing in her relationship with her mother, her mother’s negative response when she has tried to raise issues relating to her sexuality with her mother and the adverse impact on G of the mother’s attitude and the uncertainty as to whether her mother is going to be informed about the GIDS referral and the prospect of therapeutic assistance for G provided by GIDS against G’s wishes.

Pursuant to rule 6.36 Family Procedure Rules 2010 (‘FPR 2010’) the court retains a residual power to dispense with service of any document which is to be served in proceedings.

It is a power that should be exercised with great caution and only where the evidence supports such a course being taken. M v F [2011] EWCA Civ 273 concerned a father with parental responsibility and an application for him not to be informed of adoption proceedings. Black LJ (as she then was) having undertaken a review of the relevant cases stated at paragraph 37

Both the local authority and the Guardian submit the evidence supports such an order being made founded on the evidence of G’s current concerns regarding her mother’s responses towards her, the background of the mother’s behaviour towards G as set out in HHJ X’s judgment and G’s current presentation all of which lead to the conclusion there is a risk of further significant psychological harm to GA if her mother is informed of the application. As a consequence, they submit, there are strong countervailing factors that lead the court to conclude the mother should not be served with the application, or even have notice of it.

Section 22 (4) Children Act 1989 provides as follows:

Gillick v West Norfolk and Wisbeach Area Health Authority and Another [1986] AC 112 concerned an application by a mother that it would be unlawful for a doctor to prescribe contraceptives to girls under 16 without the knowledge or consent of the parent. The application was refused. The guidelines that were produced following that decision includes consideration of the following: that the girl (although under 16 years of age) will understand his advice; that the doctor cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice; that she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment; that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer; and that her best interests require the doctor to give the contraceptive advice, treatment or both without the parental consent.

In R (on the application of Sue Axon) v Secretary of State for Health and the Family Planning Association [2006] EWHC 37 (Admin) [2006] 2 FLR 206 Silber J highlighted the prevailing and developing trend towards autonomy for young people concerning their own future. The applicant in that case was seeking declarations that (a) a doctor is not obliged to keep confidential any advice or treatment to an underage person concerning contraception, sexually transmitted infections and abortion and must therefore not provide such advice and treatment without the parents' knowledge; and (b) a document published by the Department of Health entitled "Best Practice Guidance for Doctors and other Health Professionals on the provision of Advice and Treatment to Young People under 16 on Contraception, Sexual and Reproductive Health" ("the 2004 Guidance") is unlawful. Silber J refused the application and concluded that, following Gillick, the medical profession is entitled to provide advice without the parent's consent provided that (in summary) the young person understands all aspects of the advice; the young person refuses to inform her parents and refuses to allow the medical profession to do so; the young person is likely to have sexual intercourse; the young person's physical or mental health is likely to suffer if no advice or treatment is given and it is in the best interests of the young person to receive such advice

Silber J stressed the critical importance of the age and maturity of the young person concerned in any determination which involved the parent’s right to exert parental authority over a child. He held that any right to family life on behalf of the parent reduces as their child gets older and is able to understand the consequences of the different choices and to make decisions relating to those choices.

In PD v SD and others [2015] EWHC 4103 (Fam) P was born female, at the age of 15 he told his adoptive parents that he wished to change his identity to be male. He was referred to GIDS. P’s adoptive parents struggled to come to come to terms with P’s decision and the placement broke down. P moved to live with foster carers and did not want his adoptive parents to be involved in his new life or receive any information about him. Whilst P’s adoptive parents accepted his position, they sought quarterly updates in P’s life and welfare. P sought an order that prevented such information being shared with them and Keehan J concluded that the balance between P’s Article 8 rights fell decisively in favour of P’s strongly held wishes and feelings so that the order sought was in P’s best interests and made orders that authorised the local authority not to inform P’s adoptive parents in the way that they sought. This decision was based on an analysis of the competing Article 8 rights rather than any analysis of the duties under s 22(4).

In Local Authority X v HI and others [2016] EWHC 1123 (Fam) Roberts J was dealing with an application made by the Guardian for an order restraining the local authority from disclosing to the parents of a child in care a specific piece of information which the 15-year-old had disclosed to professionals. The legal representatives for the parents were made aware of the information sought to be withheld on condition that they did not impart this knowledge to the lay parties.

The situation in this case differs from Local Authority X (ibid) as there the child’s parents were aware of the child’s identity issues and so could, without prejudice to

The duty under section 22 (4) only arises ‘so far as is reasonably practicable’. A similar provision appears in s 11(4) Mental Health Act 1983 (‘MHA 1983’) which sets out what consultation the approved social worker should have with the nearest relative of a patient before admission to treatment or a guardianship application ‘unless it appears to that social worker that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay.’ Bean J (as he then was) considered the meaning of ‘not reasonably practicable’ in that context in

Bean J agreed with this analysis in TW (ibid) stating at paragraph 47

Following Bean J’s rationale through to the situation this court is dealing with Ms Stanley submits that this local authority can make the assessment in their professional judgment that it is not reasonably practicable for the local authority to seek the views of the mother due to (i) G’s express wishes for her mother not to be informed, bearing in mind her Gillick competency, and (ii) the likelihood of psychological harm to G if those wishes were not followed, bearing in mind the background to the care proceedings and the history of G’s relationship with her mother and G’s own behaviour. Ms Barrie on behalf of the local authority did not seek to take issue with this analysis.

Following the hearing Ms Stanley circulated a document provided by the Care Quality Commission regarding the issue of consent dated December 2017. It is entitled Brief Guide: capacity and competence to consent in under 18s’. This document includes the following under ‘Information Sharing’

Ms Barrie sent a document published by the British Medical Association (BMA) in October 2008 concerning Parental Responsibility which refers to ‘..treatment decisions that are unlikely to have grave consequences, however, a young person under 16 can consent to treatment provided he or she is competent to understand the nature, purpose and possible consequences of the treatment proposed.’ As Ms Barrie states in the covering email this supports the arguments advanced on behalf of Ms Stanley in relation to therapy.

Although the local authority did not take issue with many of the submissions made on behalf of Ms Stanley, Ms Barrie’s instruction were to still pursue the application for the declaration sought.

Ms Stanley’s thoughtful and coherent submissions can be summarised as follows:

The submissions in this case in relation to s 22 (4) CA 1989 have honed down on the meaning of ‘so far as is reasonably practicable’ in that sub-section.

Ms Stanley persuasively submits it is not reasonably practicable for the local authority to consult with the mother on the issue of G’s therapeutic treatment whilst G does not wish them to do so when she has been assessed as being Gillick competent to make that decision. This involves a matter of professional judgment

I agree with Ms Stanley’s submissions. They are supported by the analysis in TW and make logical sense in supporting the inclusion of ‘so far as is reasonably practicable’ in s 22 (4). In the context of this case where the local authority have already taken steps without consulting the parents in relation to, for example, making the referral to GIDS it does not make sense that a duty should arise under s 22 (4) to consult in circumstances that relate to therapeutic treatment which is expressly not supported by a Gillick competent child, and there is evidence to support the conclusion that she is likely to be positively harmed by her wishes being overridden.

The other cases set out above that have touched on the duty of the local authority under s 22 (4) have all been in the context of a positive application to prevent the local authority exercising the duty to consult sought by, or on behalf of a Gillick competent child. The declarations granted in those cases have to be considered in the context of the applications actually being made and the underlying circumstances, for example in PD and JD (ibid) the case involved the adoptive parents not being informed about medical treatment. In Local Authority X (ibid) the duties under s 22 (4) were not the focus of the court’s scrutiny but rather the competing rights of the parties under Article 8 and 6 in light of the proposal that information was withheld in the course of care proceedings, the court considered it right to make the declaration in light of both rights being engaged and the information not being pertinent to the court’s substantive determination in the case.

If G was not subject to a care order Ms Stanley submits G as a Gillick competent young person is able to decide whether her parents are informed of therapeutic provision by the GIDS clinic. Ms Stanley recognises that GIDs requires an adult to attend appointments with G, which she considers can be facilitated by the local authority as a joint holder of parental responsibility. She approaches it on the basis that this is for clinical reasons, including the requirement to consider social support for a young person and for any individual wishing to transition to live in their acquired gender in the later stages of the process.

Ms Stanley submits this understanding is supported by paragraphs 11 and 12 of the local authority skeleton argument which provides as follows:

Ms Stanley submits the Guardian considers that it is vital that G receives appropriate therapeutic intervention at this time without being fearful or anxious about her parents, and in particular her mother’s potential reaction. G needs to be assisted to recognise the likely need for her mother to know at some point about her gender identity given that it is likely that her mother will continue to play an important and regular role in her life. It is important that any steps taken before her mother learns about any matters concerning G’s gender identity do not make it more challenging for G to share this information with her mother in the longer term.

In considering the issues in this case I have reached the following conclusions.

I am satisfied that in the absence of any previous case having considered this issue it was not unreasonable for the local authority to issue this application, although in my judgment, for the reasons set out below, I am not going to make the declarations sought.

The interim orders that the mother should not be served or given notice of these proceedings should continue until further order. The court can and should exercise the discretion given to it under r 6.36 FPR 2010 for the following reasons:

In the light of that conclusion the court then needs to consider whether it should make the declaration sought, in effect absolving the local authority of their duty to consult the mother pursuant to s 22 (4) in relation to matters concerning G’s gender identity, in particular her access to therapeutic treatment.

G remains clear she does not wish her mother to know and has remained consistent in that position. The local authority agree that is her position, and that she is Gillick competent to make that decision. They also have not sought to argue against the analysis put forward by Ms Stanley that ‘in so far as reasonably practicable’ can include a situation where a competent child does not agree to a person being informed and the evidence establishes that to do so would cause that child harm.

I decline to make the declaration sought for the following reasons: