AB v CD & Ors

Parental responsibility includes consent to medical treatment. A parent’s ability to consent continues where a child is not Gillick competent, and also where a competent child agrees to, or does not object to, the treatment. It cannot be used to override a competent child’s refusal. Puberty blockers for gender dysphoria are unusual, experimental and potentially life-changing, but those features do not create a general requirement for court authorisation when parents consent. A court application is appropriate in individual cases involving clinical disagreement, alternative treatment, a finely balanced decision, disagreement about welfare, or concern about parental pressure. Regulatory safeguards may be preferable to a blanket removal of parental authority.

AB, the mother of 15-year-old XY, sought a declaration that she and CD could consent to XY receiving puberty blockers. The application followed the Divisional Court’s judgment in Bell v The Tavistock and Portman NHS Foundation Trust & Ors [2020] EWHC 3274 (Admin), which had considered the nature of puberty blockers and the information relevant to Gillick competence. The central issues were whether parental consent remained legally effective if XY was Gillick competent and whether puberty blockers belonged to a special category requiring court authorisation as a matter of law or good practice. The parents, clinicians and XY all supported continuation of treatment.

Declaration granted. The parents retained the legal ability to consent to XY receiving puberty blockers.

1. Parental responsibility under the Children Act 1989 includes consenting to medical treatment. The court relied on the parental role described in In Re Z (A Minor) (Freedom of Publication) [1997] Fam 1, Re Ashya King [2014] EWHC 2964 (Fam) and In the matter of E (A Child) (Medical Treatment) [2016] EWHC 2267.
2. The principle in Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112 is that parental authority yields to a competent child’s own decision. The parent cannot override a competent child’s refusal. The court rejected the broader interpretation of concurrent parental consent advanced in Re R (A Minor) (Wardship Consent to Treatment) [1992] Fam 11 and Re W (A Minor) Medical Treatment Courts Jurisdiction) [1993] Fam 64. Those comments in Re R were obiter. However, where the child agrees to parental consent, or does not make the relevant decision, parental consent remains operative. It was unnecessary to determine which route applied to XY.
3. The authorities did not establish a general legal requirement for court authorisation of grave, experimental or life-changing treatment given to a child with consenting parents. Sterilisation authorities, including Re D (A Minor) (Wardship Sterilisation) [1976] 1 All ER 326, Re B (A Minor) (Wardship Sterilisation) [1987] 2 All ER 206 and F v West Berkshire Health Authority [1990] 2 AC 1, concerned exceptional or materially different circumstances. Re E (A Minor) (Medical Treatment) [1991] 2 FLR 585 illustrated the distinct position where parents could validly consent to treatment for a minor.
4. There was no blanket good-practice obligation to bring puberty-blocker cases to court. Consistently with NHS Trust v Y (Intensive Care Society Intervening) [2019] AC 978 and Briggs [2017] EWCA Civ 1169, applications should be considered case by case. They are appropriate where the case is finely balanced, clinicians disagree, an alternative treatment is in issue, those concerned with welfare do not agree, or there is concern that parental consent has resulted from undue pressure.
5. The court accepted the analysis in Bell [2020] EWHC 3274 (Admin) concerning the uncertain evidence base, complex consequences and treatment pathway. Those features did not justify removing the parental right to consent. The court indicated that independent clinical opinions and regulatory safeguards might provide better protection than a general rule requiring judicial authorisation. The discrimination arguments under the Equality Act 2010 and articles 8 and 14 of the European Convention on Human Rights were not determined.