Our blog

Queensland Supreme Court decides father’s consent not needed for transgender child

The recent decision of the Supreme Court of Queensland in Re a Declaration Regarding Medical Treatment for “A” [2020] QSC 389 has allowed puberty blocking medical treatment to commence with respect to a transgender child, without the consent of her father.

In the case, the Mother of the child applied for a declaration that she could provide valid consent to the treatment commencing. The declaration was sought urgently through the Supreme Court of Queensland under the premise that there was apt to be delay through the Family Court, due to the requirement to obtain consent from both parties. As the treatment would offset the effects of puberty, it was the Mother’s view that it should be commenced urgently in order to prevent the child developing masculine characteristics associated with puberty.

While matters related to the administration of hormone blocking treatments to children are typically heard in the Family Court, the Supreme Court heard this matter in its parens patriae jurisdiction. The parens patriae jurisdiction permits the Court to make orders contrary to the wishes of the child’s parent if it is satisfied that it is in the best interests of the child to do so. Here, Lyons SJA was satisfied that delaying treatment to seek and obtain the father’s consent was not in the best interests of the child. The child and her mother had been estranged from the father since May 2017, and had not spoken to or received any support from him. As such, the parens patriae jurisdiction of the Court was enlivened under the premise that there was no other suitable guardian, and the Court could make orders to protect the child’s welfare.

The seminal case for application to this matter would ordinarily be Re Kelvin [2017] FamCA 78. In Re Kelvin, the Full Court of the Family Court held that the decision to allow a child to have Stage 2 treatment was not a decision to be made by a court, but a decision to be made by parents in conjunction with their child and medical professionals. However, application of Re Kelvin in this case fell on the fact that the entire medical team which treated the child did not agree that she was Gillick competent. Application of Re Kelvin also suggests that court authorisation would still be required in this instance as there would presumably be controversy or disagreement between the parents relating to the treatment. Indeed, the mother and child’s estrangement from the father was catalysed by the child’s social transitioning to female.

The implication of Re a Declaration Regarding Medical Treatment for “A” could be that an avenue has been established for a parent to seek a court declaration for hormone blocking treatment to commence without the consent of the other parent. Re Kelvin does not explicitly deal with the circumstance where gaining consent from the other parent may be impractical or time consuming, or even redundant if the parent is certainly not a part of the child’s life. An alternative avenue for those seeking to access the treatment urgently, being the parens patriae jurisdiction of the Supreme Court, has also been utilised here as opposed to the usual avenue through the Family Court.

Nicholes Family Lawyers works closely with the Royal Children’s Hospital in this area, by providing pro bono legal services for families of children seeking hormone blocking medical treatment. If you are seeking legal assistance in relation to this treatment, or if you have any queries relating to the law in this area, our team of experienced lawyers would be glad to discuss with you via telephone on 9670 4122, or email at [email protected].

By Nicholes Family Lawyers

 

Return to blog