Any proposal for a child to have gender surgery is likely to be subject to close judicial scrutiny. In opening the way for a teenager to undergo a double mastectomy abroad, however, the High Court reminded local authorities that they must always treat the welfare of the child concerned as the paramount factor.
The case concerned a 16-year-old who was assigned to the female gender at birth but who had lived socially as a boy for some years. On the basis that he was, and always had been, male, he did not consider himself as transgender. His parents were overseas nationals, but had lived in England for many years and had the right to remain here.
With his parents’ support, he proposed travelling to their homeland for the operation. Their local authority, however, expressed deep concern about the boy’s emotional and physical wellbeing and opposed the family’s plan in strong and uncompromising terms. It obtained an emergency court order that prevented him undergoing the proposed surgery without judicial permission or travelling abroad for that purpose.
The council questioned whether the boy had lawfully consented to the proposal and whether the operation could legally be performed in his parents’ homeland. Shortly before a further hearing of the matter, however, the council radically changed its position and applied to withdraw its opposition to the family’s plan. It did so on the basis that it did not have sufficient evidence to discharge the burden of proving its case on either of those issues.
Granting the application, the Court noted that the boy was well settled in his life as a young man. He was plainly an intelligent and thoughtful person who was capable of instructing his own legal team. He was a very private individual and the lengthy legal process, which involved his most personal details being scrutinised by 30 or more professionals, had been excruciating for him.
His parents were conspicuously well-intentioned, law-abiding, loving and focused on his welfare. Although the decision to undergo surgery was a complex one, involving many sophisticated factors, the prospect of a finding that there was some defect in his consent to the operation was remote. The evidence indicated that the proposed surgery was not specifically prohibited in his parents’ homeland and, in practice, does take place there.
In ordering the council to pay substantial legal costs, the Court found that criticisms of its handling of the matter were justified. It was particularly concerning that, from the start of the case, it lacked the necessary focus on the twin lodestars of the boy’s welfare and the risk of significant harm. It developed a misplaced fixation on subsidiary issues and, as the evidential picture became clearer, it should have withdrawn its opposition to the family’s plan earlier than it did.
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