O v P & Anor

A court may adjourn, rather than dismiss, a best-interests application concerning medical treatment where an evolving regulatory setting and a private provider’s assessment create a real prospect of a material future disagreement. A young person aged 16 or 17 may give effective consent under Family Law Reform Act 1969, but the court retains an exceptional inherent jurisdiction to intervene in their best interests. That jurisdiction is not general welfare supervision. Cross-sex hormone treatment is not a special legal category requiring routine judicial oversight. Courts must distinguish Gillick competence, statutory mental capacity and the separate best-interests question.

The parents disagreed about treatment for their 16-year-old child’s gender dysphoria. The mother sought a prohibited steps order and a best-interests declaration. She asked for the proceedings to be adjourned while Gender Plus, a private provider, completed a six-month assessment. The father sought dismissal because the litigation was causing the young person distress.

Mrs Justice Judd dismissed the proceedings, holding that there was no realistic basis on which the court would override the young person’s consent to treatment by a regulated UK clinician. The mother appealed after the recent publication of the Cass Review and against a rapidly changing regulatory background. The central issue was whether the application should remain alive pending the private assessment.

Appeal allowed. The judge’s order dismissing the proceedings was set aside. The applications were adjourned, with no continuing orders, and either party could restore the matter for further directions after the Gender Plus assessment.

1. The judge gave insufficient weight to the unusual combination of a rapidly changing regulatory environment and the position of a private provider. Gender Plus could not comply with the Cass Review recommendation that each proposed medical-treatment case be considered by a national multi-disciplinary team. There was also a real prospect of continuing disagreement if cross-sex hormones were prescribed after the assessment.

2. The Court did not decide whether treatment would be in the young person’s best interests, nor did it pre-judge a future application. It held only that these were legitimate reasons to retain the ability to consider the factual circumstances once the assessment was complete. The present distress caused by proceedings was important, but did not require final dismissal at that stage.

3. Under Family Law Reform Act 1969, section 8 does not remove the court’s residual inherent jurisdiction to override a competent 16- or 17-year-old’s treatment decision where their best interests require it. Re W [1993] Fam 64 remained applicable, and the young person’s own wishes would be a highly important factor in any future determination.

4. The Court rejected the suggestion that cross-sex hormone treatment fell within a special legal category requiring judicial oversight. It reaffirmed the need to distinguish Gillick competence, capacity under the Mental Capacity Act 2005, and the best-interests jurisdiction relating to a person aged over 16. Sir Andrew McFarlane PFD added that the latter jurisdiction is not a general welfare jurisdiction and is exercised only where intervention is necessary to protect a competent young person from grave and irreversible mental or physical harm.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 1577, allowed the mother’s appeal, set aside the dismissal, and adjourned the applications pending completion of the Gender Plus assessment.
• High Court, Family Division: Mrs Justice Judd dismissed the proceedings in April 2024, discharged the interim orders, and accepted the father’s undertaking not to facilitate offshore treatment while the young person was under 18. No citation for that decision was stated.