Parental responsibility (PR) is the collection of rights and responsibilities relating to being the parent of a child, including making decisions about such matters as naming a child, education, religion and medical treatment.
Mothers always have PR for their biological child unless it is removed by a court. Fathers have PR if they are married to the mother or in a civil partnership at the time of the birth, are named on the child’s birth certificate, or acquire it by agreement or a court order. Second female parents, step-parents, grandparents and local authorities may also acquire PR.
When a couple separates it may be challenging to agree on the exercise of PR, for example in relation to a choice of school. When parental views differ widely on subjects like whether a child should attend school or be home schooled, receive life saving medical treatment, or receive recommended childhood immunisations, the family court may be asked to act as a ‘third parent’ to make a decision.
When determining these matters, the court will refer to the welfare checklist in the Children Act 1989. This checklist includes considering the wishes and feelings of a child according to their age and understanding, the emotional, psychological, physical, or sexual harm a child has suffered or may suffer, the ability of the parent to care for the child, any special characteristics, and the impact of a change on a child.
The Family Division of the High Court has recently been asked to make decisions in respect of a 15-year-old child who wishes to receive puberty blocking treatment because they consider they are transgender. The mother of the child wishes the child to wait until they are 18 to make these medical decisions, whereas the child supported by their father, wishes to receive treatment privately. An interim order made in August prevents the child from receiving the treatment and the court will hear the matter in the High Court this week.
The court will examine the matter of what is in the child’s best interests, the exercise of parental responsibility and consider the matter of Gillick Competency (the point at which a child is considered competent – as assessed by a doctor and not the court – to make their own decisions). The Gillick case was decided in the 1980’s in relation to the ability of a child to be prescribed the contraceptive pill. The courts have already considered the ability of teenagers to make decisions about the use of puberty blockers. This treatment is not considered to be in a special category of medical treatment and these general principles apply.
The Tavistock and Portman NHS Foundation Trust (Tavistock) is currently the only specialised trust in the UK which provides a Gender Identity Development Service (GIDS) for young people and their families who experience difficulties in the development of their gender identity. However, an inspection report of GIDS at Tavistock commissioned by the Care Quality Commission in 2021 revealed that incoming patients waited over two years for their first appointment. It is now expected that the clinic will close next year and be replaced by regional services.
This topic raises some incredibly difficult issues for children, parents and the court to grapple with. There is evidence on the adverse impact of not receiving treatment early enough, and conversely on those who continue to suffer after they receive treatment. Being a transgender child is likely to impact schooling and social experiences as a teenager. Furthermore, there is evidence that there is a correlation between Autistic Spectrum Disorder in girls and gender incongruence.
It would seem that there is an urgent need for some further legal guidance for medical and other professionals working in this area. In the ‘big picture’ there seem to many inconsistencies in the laws in this country impacting on children: the age of criminal responsibility is 10, whereas the age of consent is 16. This means that the same child could be found to be responsible for killing another person, have sex, but not receive treatment to align their outward appearance with the gender they consider themselves to be.
It is perhaps time for a joined-up review of the laws relating to children to try and achieve parity and clarity.
Key Contacts
Legal Director and Solicitor-Advocate (Higher Rights Civil Proceedings)
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2023.