By Dr Felicity Bell -
Snapshot
- In Re Imogen, Watts J considered a circumstance where one parent supported a 16-year-old’s wish to transition and the other opposed it.
- Watts J held that even if a child is able to consent to ‘Stage 2’ hormone therapy, when there is a dispute between any of the child, the child’s parents or guardians, or treating medical practitioners, only the court can determine whether treatment can proceed, on the basis of the child’s best interests.
- Watts J had to decide whether it was preferable to make an order authorising treatment under Family Law Act 1975 (Cth) s 67ZC or to make an order regarding parental responsibility under s 65D(1).
In Re Imogen (No. 6) [2020] FamCA 761 (‘Imogen (No. 6)’), Watts J of the Family Court dealt with a dispute between the separated parents of a 16 year old, Imogen, as to whether she ought to commence ‘Stage 2’ hormone therapy for gender dysphoria. Under the Australian Standards of Care and Treatment Guidelines: For trans and gender diverse children and adolescents (‘Australian Standards’), Stage 2 treatment refers to ‘gender affirming hormone treatment using oestrogen and testosterone’ (Imogen (No. 6) at [25]). Imogen, a natal male, had commenced Stage 1 hormone therapy (suppression of pubertal development) at around 15 years of age, in 2019.
Imogen’s case is of general importance, as previous decisions on the administration of hormones to children diagnosed with gender dysphoria have involved parents supportive of, or at least not actively unsupportive of, their child’s access to hormone therapy. In other words, families who concurred with ‘gender affirming’ treatment regimes. In Imogen’s case, this was not so.
Background to Imogen’s case
An aspect of Imogen’s case reported in the media concerned Watts J declaring that the Australian Standards misstate the position regarding medical practitioners obtaining consent from a child’s parent or guardian prior to commencing Stage 2 treatment (B Lane, ‘Judge warns doctors over teen trans hormone consent’, The Australian, 23 September 2020, 3).
Under the common law, once a child attains Gillick competence and is able to consent to medical treatment, there is no longer a role for parental consent, which is squeezed out as the child’s own capacities increase (Marion’s Case (1992) 175 CLR 218; [1992] HCA 15, following Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112). However, the High Court held in Marion’s Case that if the treatment in question is ‘non-therapeutic’, neither a child nor the child’s parents or guardians, may consent.
