ATN v WellBN Partnership

Judicial review is generally unavailable where the claim has become academic between the parties. The court may exceptionally hear an academic public-law claim only where there is a good reason in the public interest, such as a discrete statutory-construction issue likely to recur in numerous cases and not requiring detailed factual analysis. The discretion must be exercised cautiously.

Time normally runs from when the claimant first becomes affected by the impugned policy or practice. A later repetition of the underlying conduct does not necessarily create a continuing cause of action. The Administrative Court should not use an academic, fact-specific claim to resolve wider political, medical or social controversies, particularly where the claimant has obtained practical relief through another remedy.

The claimant, the father of ATT, sought permission to challenge a general practice partnership’s prescription of gender-affirming hormones to persons under 18. He alleged that the practice was outside the NHS commissioning framework and that its informed-consent policy failed to take account of relevant legislation and professional guidance.

ATT’s treatment pathway was resolved in Family Division proceedings. She was transferred to specialist NHS care and became 18. The defendant had ceased initiating such prescriptions for under-18s and stated that its former policy would not be reinstated. The issues were whether the claim was brought in time and whether it remained appropriate to entertain it despite becoming academic.

1. Outcome. Permission to apply for judicial review was refused. The claim was out of time and, in any event, academic.
2. Limitation. Time begins when a claimant first becomes affected by the impugned policy or practice. Applying R (Badmus) v Home Secretary [2020] EWCA Civ 1130, the relevant date was when the claimant discovered that ATT was receiving treatment under the policy. The claim was not brought promptly or within three months under CPR 54.5(4). There was no good reason to extend time under CPR 3.1(2)(a), particularly because the policy had ended and would not be reinstated.
3. Academic claim. The court applied the principles in R (Parsipoor) v SSHD [2011] EWCA Civ 276, R (Zoolife International Ltd) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin), Rusbridger v HM Attorney-General [2003] UKHL 38 and R (L) v Devon County Council [2021] EWCA Civ 358. ATT was no longer treated by the defendant, had reached adulthood, and had obtained the practical treatment-related relief sought through the Family Division. The defendant had ceased the challenged practice and did not intend to resume it.
4. Public-interest exception. The exceptional discretion identified in R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450, and Johnatty v Attorney General [2008] UKPC 55, was not engaged. There were no similar claims in progress, no evidence of likely recurrence, and no discrete legal question capable of resolution without detailed facts. The concern in R (MS) v SHD [2019] EWCA Civ 1340 that such cases are rare was applicable.
5. Wider controversy and alternative remedy. The court declined to determine the general lawfulness, safety or merits of prescribing gender-affirming hormones to under-18s. Such matters required research, broad consultation and medical and political consideration. The court also took account of the stress to ATT and the claimant’s use of the Family Division as a suitable alternative forum. Other grounds and discretionary bars were not determined.
6. Consent. There was no suggestion that ATT lacked capacity. Under s.8(1) of the Family Law Act 1986, from age 16 her consent to treatment was legally effective as if she were an adult. The court relied on O v P [2024] EWCA Civ 1577 in treating hormone treatment as not belonging to a special legal category for consent.
7. Post-hearing submissions. The court proceeded on the material and submissions available at the hearing. Unilateral further submissions sent after argument, without permission and without an opportunity for response, were impermissible under CPR r.39.8(4), consistently with MH (Eritrea) v Secretary of State for the Home Department [2022] EWCA Civ 1296.

First-instance judicial review permission decision. No lower-court judgment was under appeal.