Thread by @tribunaltweets

We plan to live tweet proceedings today from the Court of Appeals. Mrs A is seeking to prevent her child from obtaining cross sex hormones via private prescription. Expected to start at 10:30 am. The live stream will be here:
youtube.com/channel/UCvLfI…

Mrs A and the child's father disagree on access to medical gender treatment outside the NHS. Mrs A obtained a 'prohibited steps' order preventing private provision of cross sex hormones. This order expires when the child reaches 16, early next year.
open.substack.com/pub/tribunaltw…

Mrs A sought to extend the order to age 18 but was initially unsuccessful. She was granted leave to appeal that judgment. We have been reminded by the court about the importance of the anonymity order in this matter as it concerns a minor child.

This case concerns cross sex hormones not puberty blockers. The announcement yesterday by Wes Streeting, Health Secretary of the indefinite extension of the ban on puberty blockers for under 18s is not directly relevant.
gov.uk/government/new…

We are somewhat short on details of advocates and legal advisors at this point but will update as this becomes available. Some abbreviations that we expect to use:
A - appellant, Mrs A
R - respondent
F - father
C- child

If the court uses other abbreviations we will adopt those. The child has also been referred to as 'Q'.
XH - cross sex hormones
We expect there to be 3 judges: Master of the Rolls, the President of the Family Division and Lady Justice King.

We begin.
AB - appellants barrister begins.
I start by saying permission was granted for appeal, the 2 main points relate to the proper time to consider bringing the proceedings to an end, and the compelling reason whether treatment decisions should be overridden by the

court.
A argues that this raises an issue of significant public interest. Whether a court should or could override a capacity to consent, offered by private doctor.
J1 - interrupts - you are trying to formulate a point of law but are verging off into the facts
AB - capacity to

consent and treatment offered by UK doctor in private section. Treatment not life saving or sustaining, and highly controversial, not supported by Cass Review.
J1 - how does Cass relate to point of law
AB - whether the court has any jurisdiction and what the correct approach

in law should be.
J1 - that's the application of Sec 8, has been decided and we are bound by it.
AB - the proper approach to the exercise of the court's jurisdiction is informed by Cass,
J1 - the decision to override the child's consent is informed by Cass

AB - yes
J1 - all these questions are for regulators, parliament, etc. We see yesterday's announcement by Streeting, we were clear in Bell, how can we be involved?
AB - Bell is a JR decision where on of the important factors was the absence of individual case facts,

court should not be a general advice service.
J1 - in this case we've got facts
AB - yes. It is a duty of the court to intervene where there is a risk of irreversible harm or a major step in child's life.
J1 - what is this concept of 'major step'

AB - I'm going to develop through case law how I get to major step and the protective jurisdiction of the court. It relates to both refusals of treatment and where the child seeks treatment and it is not in their best interest. If you agree that the court has a protective

role, the developments show that irreversible harm happened to a cohort of young people. That treatment was shown to be unsafe. The Cass Review informs the Court. It allows me to say that this kind of treatment that is in a special category,

that requires those with parental responsibility to come to court for authorisation.
J1 - Bell said not a special category
AB - Bell was about puberty blockers (PBs). My argument is that this case is not about PBs but about gender affirming hormones (GAH).

This is different than an abortion case. There is no evidence of benefit. Only 2 guidelines passed through the filter of York Univ in Cass Review (Finland, Sweden) said to GAH treatment only in clinical trials. This pushes hormone treatment into that special category

of treatment that requires review/intervention. The Court takes a much more proactive or protective role towards the child. With your leave, can I sketch out how I propose to put my arguments to you. The order under appeal is a refusal of adjournment. The decision was

pre-mature. It preceded an assessment by GenderPlus (GP - presumably potential private provider) that child was suitable and then the court could intervene.
J2 - has the assessment happened
AB - I am in the dark on that. It is not necessary that any medical information is

disclosed to the court or to the mother.
J2 - I understand
AB - I'm trying to outline my approach. I will deal with factual background, then take you to Cass as I submit it is relevant, then I'm going to mention the NHS developments and then I will deal with grounds of appeal.

I will focus on a handful of cases. That's where I'm going.
AB - factual background. Parents separated 10 years ago, child identified as trans at 2020, was around the age of 12. Mother, acting as litigant in person, got the prohibited steps order.

I won't go through it, but you might cast your eyes over it to see her concerns.
The mother reported a laser focus by child on trying to get hormones. That is of a piece with the nature of the condition. The definition of gender incongruence in the Cass Review,

I'm looking at criteria 'marked and persistent gender incongruence', the reason I am referring you to that, a feature of the condition, part of it is the desire to take medicine to align with the wished for gender. Unusually, the treatment being sought,

is the condition. And the response is to give the hormones.
J2 - the condition is all consuming desire to live in the acquired gender
AB - I was trying to say that achieving the goal is a feature of the disorder
Then a local authority assessment that

identified some dialogue with peers, and at 14 1/2 the child was adamant that they wanted to have surgery, and would take out a loan to have the surgery rather than a student loan. Then a diagnosis from a GP of gender dysphoria and some concerns raised that

the child would go on line and get hormones from Gender GP. Gender GP is not the subject here...
J2 - I have been critical of Gender GP in other contexts
AB - difficulty in obtaining an expert opinion, child refused to cooperate with proposed expert, would not disclose info.

AB - the guardian's report makes the point that mother's concern is well founded but is causing damage to relationship with child. My argument is that guardian report does not seek to weigh the short term harms with the long term risks of such treatment. Ignores that there

has been a complete ban on NHS referrals to gender clinics for under 18s. Point expressed is that those who are in late adolescence and not on puberty blockers - mental health support is more important. Needs to be wider exploration of issues and hormones used with

extreme caution. Guardian's report does not make reference to potential loss of fertility, loss of sexual function, other potential health consequences. Also no assessment by child psychiatrist. Child would not consider therapy unless part of gender treatment plan.

Guardian report said court would have no role to play past age 18. The report uses phrases like 'mature beyond years'. A says child is intelligent, articulate and researched gender treatment to a high degree. But there is a great difference between highly intelligent and

having to take a decision about taking hormone treatment. I draw an analogy to anorexics who can be high functioning, obtaining A*s etc but cannot make a decision to eat.
J3 - the difference is that anorexics lack the capacity to make the decision.
AB - capacity cannot be

assessed in a vacuum. To demonstrate lack of capacity, the person must fail the 'use, retain, weigh' criteria to the decision in question.
Discussion between judges, J3 - my fault we went down this rabbit hole but important to understand capacity. It may be that the

diagnostic criteria are skewing the judgment.
J1 - you are saying that there is at least the possibility that the child did not meet the 'use, retain, weigh' the decision because of the diagnosis of gender dysphoria. Is that in your skeleton? You are saying come the

assessment, there is a real possibility that the child would lack the capacity to consent.
J2 - there is a sentence.....(now looking for it)
J1/J2 - now discussing Ingram, and if there is a lack of capacity to give informed consent.
AB - I should make clear that it is at least

possibility of that lack of capacity. But the prime thrust of my case is that the court has jurisdiction to override even those cases where capacity does exist. It is a possibility at least.
J1 - i get that possibility but I don't get your earlier submissions that the

court has jurisdiction. This is not what you were saying earlier.
AB - they are separate points. Can I explain it simply?
J1 - as simple as you like.
<laughter>
AB - argument a, this treatment should not be allowed and the court can intervene

Arg b - and the child cannot consent because of capacity.
J3 - can I pick up A, any assessment of a child for this condition will inevitably lead to a capacity assessment, and thus the adjournment was wrong, and the assessment should have been made
AB - that is my case

J3 (cannot hear)
J2 - and your arg b is that this is very tricky stuff. And someone needs to go through the risks and downsides of this treatment with the child. But the laser focus of the child on getting the treatment may have meant they did not have capacity to make the

decision. And the mother was cut out of the discussion.
AB - yes, that is precisely my argument. I'm still in the judgment going over the background. Gender+ gained CQC registration, although that registration is subject to legal review on the grounds of no

evidence for the treatments offered. The 2nd point arising is the evidence of Gender+ methodology, essentially 6 months of assessment, then referral, working to the WPATH standards. Cass said that WPATH lacked developmental rigour. Gender+ was not and is not compliant with

current standard of NHS care. Especially the 2nd opinion from an independent party to commence hormones. There is no such safeguard in the private sector.
1st reference in my skeleton - 3 important developments. One is 2nd opinion point I just made,

(taking judges to NHS clinical commissioning policy) has a table of eligibility for treatment. Including impact on individuals fertility has been discussed and possibility of egg/sperm harvesting in advance of treatment. One of the issues in Bell was the difficult that an

indiv of 16/17 can have when making a decision about their future fertility. Things like 'I will just adopt' for example. Another criteria is that the indiv must be given all relevant info consequences of treatment and what will happen if the treatment does not go ahead.

The doctor must explore and explain alternatives to desired treatment. Cass says really important that alternatives are explored. Last criteria is that requirement for independent person to consent.
J3 - it's not just to check out that they've been told but that they have a

real understanding of the consequences of the treatment.
AB - describing the regret and de-transitioners and permanence of changes. Some of which happen very quickly.
End of Part 1 morning.

@threadreaderapp unroll please