PD v SD and Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Keehan |
| Judgment Date | 26 August 2015 |
| Neutral Citation | [2015] EWHC 4103 (Fam) |
| Docket Number | Case No. LE15P00456 |
| Court | Family Division |
| Date | 26 August 2015 |
[2015] EWHC 4103 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Court of Justice
Strand, London, WC2A 2LL
Mr. Justice Keehan
(In Private)
Case No. LE15P00456
Ms. Sarah Morgan QC and Ms. Olivia Magennis (instructed by Johnson Astills) appeared on behalf of the Applicant.
Ms. Hannah Markham (instructed by Dodds Solicitors) appeared on behalf of the 1 st and 2 nd Respondents.
Mr. Martin Kingerley appeared on behalf of X County Council.
(As approved by the Judge)
INTRODUCTION
I am concerned with one young man, PD, who was born in 1999 and is 16 years of age. He was previously known as HD, but formally changed his name by deed poll in August 2015.
The first and second respondents are P's adoptive parents, SD and JD.
The third respondent is X County Council. P is placed with local authority foster carers pursuant to Section 20 of the Children Act 1989.
In September 201P told his parents that he wanted to be a boy. He said he wanted to change his identity to be male. He was referred to the Tavistock Gender Identity Clinic having experienced gender dysphoria.
P's parents have struggled to come to terms with P's decision. In the course of direct and indirect contact they called him H, to his very great annoyance and distress.
It is in those circumstances that P has come to the very clear and very firm conclusion that he no longer wishes his parents to be involved in his life and does not wish them to receive any information about his day-to-day life, nor about his assessment and possible treatment at the Tavistock Clinic or other medical facility.
The parents initially opposed that application. Today, they accept that they should not receive any information about P's medical assessment and/or treatment. They invite the court, however, to permit them to receive quarterly updates on P's life and welfare. I am told by their counsel Ms. Markham, that they live in the hope that a reconciliation will be effected between them and P at some point in the future, and they would like to be appraised of his life and progress in readiness for that eventuality.
P does not agree. So strongly held are his views that Ms. Morgan QC told me he would even wish his parents not to be notified if he were required to receive emergency medical treatment. The depths of his wishes are conveyed by his view that if he suffered a serious accident and underwent emergency surgery he would not want to wake and find his parents at his bedside.
The local authority simply wishes for clarity on the extent to which it should fulfil its statutory obligations to consult with and give information about P to his parents.
BACKGROUND
P was adopted by SD and JD in 2005 when he was six years old.
P says he has experienced gender issues from early childhood. When aged 12 he told his parents he was homosexual, but in September 2014 he told them that he wanted a change of identity to be male.
In November 2014 P took an overdose of tablets on his way to school and was treated in hospital.
He took another overdose in January this year. P was admitted to hospital and was then admitted as an informal patient to GH (a CAMHS residential facility). On admission he was found to be of low mood with suicidal ideation. He complained of poor sleep, loss of appetite and weight loss. He was prescribed medication and after a few days there was a noticeable improvement in his presentation.
P was discharged from GH in March and was placed by the local authority with foster carers where he remains to this date.
On 6 May this application for declaratory relief was issued.
On 7 May P attended his first appointment at the Tavistock Centre.
The matter came before me on 24 July when I made P a ward of court and gave directions for this hearing.
I am immensely grateful to leading and junior counsel for the helpful skeleton arguments which they have each filed and served.
THE LAW
It is agreed by all parties that I have a jurisdiction to grant the declaratory relief sought by P.
By virtue of s.8(3) of the Family Law Reform Act, P, now aged 16, can give valid consent to medical and surgical treatment.
If P was not provided with accommodation by the local authority and was not a looked after child, the local authority would not be obliged to consult with or give information to P's parents.
Since he is a child looked after by the local authority, it is obliged by s. and s.26 of the Children Act 1989 to consult with and give information to the parents. Section provides:
"Before making any decision with respect to a child whom they are looking after or proposing to look after the local authority shall, so far as it is reasonably practicable, ascertain the wishes of—
(a) the child;
(b) his parents;
(c) any person who is not a parent of his but who has had parental responsibility for him; and
(d) any other person whose wishes and feelings the authority consider to be relevant regarding the matter to be decided."
There are further obligations in a similar vein imposed by the provisions of the Care Planning, Placement and Case Review (England) Regulations 2010.
The Article 8 Convention rights of P and of his parents are engaged. I take particular account of the decision of the European Court of Human Rights in Yousef v Netherlands [2003] 1 FLR 210, that where there is a tension between the Article 8 rights of the child, on the one hand, and the parents, on the other, the rights of the child prevail.
In the case of Re C (Care: Consultation with Parents not in Child's Best Interests) [2006] 2 FLR 787, Coleridge J decided it was not in the best interests of the subject child for the local authority to consult with or give information to the father. In his judgment he expressed the view that it was only in very exceptional circumstances that such an order would be appropriate. The factual matrix of that case was very different from the circumstances of this case.
In my view, rather than considering whether the facts of the case are very exceptional, although in my judgment the facts of this case are very exceptional; I should instead focus on the competing Article 8 rights of P and of his parents.
In the case of Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112 Lord Scarman said, at 185(e):
"The rights of a parent exist primarily to enable the parent to discharge his duty of maintenance, protection and education until he reaches such an age as to be able to look after himself and make...
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