The Department of Health and Human Services (‘DHHS’) employs a standard whereby a child should only be removed from the care of his or her parent if there is an unacceptable risk of harm to the child.

Unfortunately, there is no definition of ‘unacceptable risk of harm’ in the relevant legislation. From recent case law it can be understood that whether or not a risk of harm is ‘unacceptable’ will depend on the likelihood of the risk and the consequences should the risk come to pass (GG v Secretary to Dept of Health and Human Services [2020] VSC 740). In most cases the Court can come to a reasonable conclusion as to risk of harm.

However, it is not always clear whether an unacceptable risk of harm exists which justifies the removal of the child from parental care. In a case in the Children’s Court this year a 15-year-old transgender teenager was removed from the care of their parents after it was decided by the Magistrate that the teenager was at great risk of self-harm due to the refusal of their parents to consent to hormone therapy. It was found by the Magistrate that, on the balance of probabilities, the child had suffered emotional and psychological harm following verbal abuse related to the child’s expression of their gender identity.

This decision has sparked controversy as the child had not be officially diagnosed as suffering from gender dysphoria and the parents were awaiting a second medical opinion before commencing hormone therapy. Although in Australia the requirements for parental consent and court approval before commencing hormone therapy have recently been relaxed in cases like Re Mathew and Re Ryan, whether a refusal to consent to hormone treatments places a child at an unacceptable risk of harm is yet to be properly tested.

It is certainly arguable that a failure by a child’s parents to facilitate a gender transition could result in the child suffering significant emotional or psychological harm as the incongruity between their internal state and their physical appearance would continue to cause the child extreme mental anguish. Yet this would need to be corroborated by a diagnosis of gender dysphoria and a full psychiatric evaluation to assess the level of harm to the child’s mental health before taking such a significant step. This argument also presupposes that hormone treatment would be in the best interests of the child, which is still the subject of debate.

Notably, the courts in the UK seem to have become increasingly conservative when dealing with this issue. In the recent English case of Tavistock and Portman NHS case the High Court questioned the ability of adolescents to fully comprehend the long-term consequences of transition therapy and set strict limits regarding the use of puberty blockers in people under 18 years of age. Moreover, in a 2016 case the UK High Court ordered the removal of a child from the care of his mother who was, in Justice Hayden’s opinion, causing the child significant emotional harm by allowing him to live secretly as a girl without any official diagnosis of gender dysphoria.

The Victorian matter remains before the Children’s Court, and further updates can be expected.