The High Court Family Division has made an important ruling concerning transgender young people’s access to medical care in the UK. The decision follows the disarray caused by the Bell v Tavistock judgment in which, on 1 December 2020, the Administrative Division of the High Court ruled that the NHS Gender Identity Service should not rely on the consent of children and young people under 16 to treatment with puberty blockers because they could not fully understand the long term implications. The decision in Bell is being appealed, with an appeal due to be heard in the spring.
However, it had wide-ranging practical implications almost instantly. NHS England, responding to the Bell decision, put an immediate pause on new NHS referrals for puberty blocking treatment for trans young people and required a clinical review for all existing prescriptions, saying that all puberty blocking treatment for trans young people under 16 would need to be authorised by a ‘best interests’ court order.
However, in AB v CD & Ors the Family Division has confirmed that this is not the case, because the correct legal position is that parents and carers with parental responsibility can lawfully consent to their children and young people being prescribed puberty blockers. The case involved an application on behalf of a trans girl, age 15, whose parents sought clarity that she could continue to be prescribed puberty blockers on the basis this had been clinically recommended and her parents had consented. In an odd twist of fate, the judge who decided the case in the Family Division (Mrs Justice Lieven) also sits in the Administrative Division and was also part of the panel of judges which gave judgment in Bell. She was asked to consider:
Mrs Justice Lieven ruled that it did not, and that parents could give lawful consent. She said:
“Parents will, in the vast majority of cases, be the people who know their children best and who are best placed to make decisions about them. I agree with the view expressed that judges do not necessarily know best, and that judges should be slow to displace the decision making role of committed and loving parents. That is not to say that there are not cases where the Court, acting in an independent way, may not be in a better position to make a decision than the parents. However, such cases will, as I set out below, arise in individual cases, not simply on the category of prescribing PBs to children.”
Therefore, going forward, the only cases in which a best interests order will be needed are now those where there is a dispute of some kind (perhaps between parents, or between parents and a child) or where clinicians are concerned for some particular reason that parents are not able to give fully-informed consent.
We know this judgment comes as a huge sigh of relief to trans young people in the UK who are on or waiting for treatment with puberty blockers, and that the Bell decision caused enormous distress, confusion and uncertainty.
However, there is still some work to do. Trans support organisations, including leading national charity Mermaids, are calling on NHS England to urgently correct their service specification to reflect that there is no longer a need for a ‘best interests’ court order for PBs where there is parental consent, and that NHS treatment can resume (where clinically recommended). This is, in practice, what will unblock the barriers which were erected to treatment in December so suddenly.
As specialists in LGBT family law, NGA Law is committed to supporting transgender young people and their families. We welcome the judgment and fully support the calls on NHS England to ensure their policies reflect the correct legal position, and to do so immediately.