Re Kelvin [2017] Famcafc 258 Background

Re Kelvin [2017] FamCAFC 258

Background

On 30 November 2017, 5 judges comprising the Full Court delivered judgment in Re Kelvin. In it the Full Court considered the necessity for prior Court authorization for hormone treatment for children with Gender Dysphoria. Re Kelvin went to the Full Court by way of a case stated.

Treatment for Gender Dysphoria is administered in two stages for children. After diagnosis and prior to the onset of puberty, Stage 1 treatment is commenced. Stage 1 treatment uses “puberty blockers” to prevent the development of secondary sexual characteristics such as the development of breasts, body hair or voice breaking. These can be used safely for 3-4 years. Once a child reaches the age of 16 years, the guidelines for treatment for Gender Dysphoria recommend commencing hormone replacement treatment, to allow the development of sexual characteristics of the child’s psychological gender. This involves the administration of oestrogen for boys who identify as female and testosterone for girls who identify as male.

Early decisions of the Court in cases concerning children with Gender Dysphoria were made at a time when the understanding and treatment for children with Gender Dysphoria was in its infancy: for example see Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175. These early cases required Court approval be obtained prior to commencing any hormone treatment, even in cases where the child’s parents and the child’s medical practitioners may have agreed that hormone treatment is appropriate and necessary. In such cases the Court is exercising its welfare jurisdiction

In 2013, the Full Court in Re Jamie (2013) FLC 93-547, determined that Court approval was no longer required for Stage 1 treatment. Its physical effects were largely reversible, and therefore it was considered the consequences of making the wrong decision were not as severe as with Stage 2 treatment. Once Stage 2 treatment commences, then there are irreversible physical changes such as the development of breasts or of a voice breaking. Given the consequences of making the wrong decision for Stage 2 treatment may involve irreversible consequences, the Full Court in Re Jamie determined Court oversight was still required for Stage 2 treatment. Such oversight involved the Court determining if the child was Gillick competent, that is of sufficient maturity and understanding to consent to the treatment him/herself. If the child was determined not to be Gillick competent then the Court had to determine if it was in the child’s best interests for Stage 2 treatment to commence.

As the children undergoing Stage 2 treatment were generally around 16 years old and many of them had lived as their psychological gender for years, after Re Jamie there was only one case where the Court did not determine a child to be Gillick competent. In that case, the child was 17 years and 11 months old in any event and there was not sufficient evidence before the Court to make the determination. As such, of the 63 cases before the Court between Re Jamie and Re Kelvin, parents and children were subjected to the expense, delay and distress of Court proceedings only for the Court to find in all but one of these, that the child was Gillick competent and could anyway consent to his/her own treatment.

After Re Jamie different judges dealt with the orders to be made in Stage 2 cases differently. Some interpreted Re Jamie to mean there need only be a finding of Gillick competence and no further orders. Others made the finding and then expressly ordered the Stage 2 treatment commence. Others still made a declaration of Gillick competence rather than a finding. The case stated therefore asked the Full Court to consider firstly if Stage 2 treatment needed Court authorization and if it did, what orders ought be made upon a finding of Gillick competence.

The questions and answers were as follows:

Question 1: Does the Full Court confirm its decision in Re Jamie (2013) FLC 93-547 to the effect that Stage 2 treatment of a child for the condition of Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) DSM-5 (the treatment), requires the court’s authorisation pursuant to s 67ZC of the Family Law Act 1975 (Cth) (“the Act”), unless the child was Gillick competent to give informed consent?

Answer: No

Question 2: Where:

2.1 Stage 2 treatment of a child for Gender Dysphoria is proposed;

2.2. The child consents to the treatment;

2.3. The treating medical practitioners agree that the child is Gillick competent to give that consent; and

2.4. The parents of the child do not object to the treatment

is it mandatory to apply to the Family Court for a determination whether the child is Gillick competent (Bryant CJ at [136-137, 140(e)]; Finn J at [186] and Strickland J at [196] Re Jamie)?

Answer: No

Question 3: If the answer to question 2 is yes, given statements made by the Full Court in Re Jamie, if a finding is made that the child was Gillick competent to give informed consent, should any application for a declaration that the child is Gillick competent, be dismissed?

Answer: Unnecessary to answer

Question 4: In the alternative, if the answer to question 2 is yes, if a finding is made that the child was Gillick competent to give informed consent, should any application for an order authorising the administration of the treatment, be dismissed?

Answer: Unnecessary to answer

Question 5: If the answer to question 3 is no, given statements made by the Full Court in Re Jamie, if a finding is made that the child was Gillick competent to give informed consent, is the jurisdiction and power of the court enlivened, pursuant to s 67ZC of the Act, to make a declaration that the child was Gillick competent to give informed consent to the treatment?

Answer: Unnecessary to answer

Question 6: If the answer to question 4 is no, given statements made by the Full Court in Re Jamie, if a finding is made that the child was Gillick competent to give informed consent, is the jurisdiction and power of the court enlivened, pursuant to s 67ZC of the Act, to make an order authorising the administration of the treatment?

Answer: Unnecessary to answer

The Judgment

As stated above, a Full Court of 5 judges determined the case. The parties included the Attorney-General, the Human Rights Commission, A Gender Agenda, the Secretary for the Department of Family and Community Services (NSW) and the Royal Children’s Hospital Melbourne.

The child Kelvin had been born female and had fulfilled the criteria for Gender Dysphoria from at least the age of 9. He had transitioned socially and was living as a male. He had not undergone Stage 1 treatment and going through female puberty had caused him significant distress. Kelvin had been appropriately diagnosed with Gender Dysphoria. He was supported in the application by both of his parents. He was 17 years old and wished to commence Stage 2 treatment.

In their joint judgment Thackeray, Strickland and Murphy JJ agreed it was appropriate to depart from the previous Full Court decision of Re Jamie as the understanding and treatment of Gender Dysphoria had significantly advanced since 2013. The risks involved in irreversible treatment no longer outweighed the therapeutic benefits such that Court intervention was required. The understanding of adverse consequences if treatment was not allowed were also better understood. They held that:

The treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the Court. (para 164)

This Full Court could depart from the decision of a previous Full Court thanks to the understanding and advances of the therapeutic nature of the treatment for properly diagnosed Gender Dysphoria. The understanding of the facts underlying the two decisions, separated by some 4 years, differed to the extent that it was possible to overturn the previous decision without any finding that the previous Full Court was “plainly wrong”:

It is also important to note that that outcome is not unexpected. As some of the intervenors record, Re Jamie can be viewed as being decided at a particular point in time, and at a particular stage in the development of legal principle, and even more importantly of medical science (for example see the applicant’s submissions filed 5 June 2017 at paragraph 34). It would not be heresy to suggest that, in relation to stage 2 treatment, Re Jamie would be decided differently today. (para 165)

Ainslie-Wallace and Ryan JJ in a separate judgment differed only by concluding the previous Full Court decision in Re Jamie was plainly wrong. Having determined as it did, that Stage 2 treatment was therapeutic in nature, it should then have determined that Court oversight was not necessary. Court oversight using its welfare or parens patriae jurisdiction, was appropriately limited to authorizing nontherapeutic treatment (such as in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion’s case) where sterilisation was authorised for an intellectually disabled child). Once the determination has been made that the treatment is therapeutic then, absent any controversy, the Court ought have no role. To distinguish between Stage 1 and Stage 2 treatment requiring Court approval for Stage 2 because some of its consequences were irreversible, is to confuse whether or not a treatment is therapeutic with the consequences of therapeutic treatment.

Re Kelvin finally removes from the Court children with Gender Dysphoria. This is a recognised condition, defined in The Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5) (302.85 (F64.1) ICD-10-CM F64.1) Its treatment is subject to international protocols and involves a considered and multi disciplinary approach. If parents, the child and the treaters all agree that treatment is necessary and of a nature to treat the condition, ie., therapeutic, then the Court can and should have no role.

Acknowledgment:

The above case note is heavily based upon and adapted from the analysis of the case by Minal Vohra SC, Family law Section Executive Member, Law Council of Australia, Family Law News 1/12/2017